Understanding the Constitution #10: Sometimes Congress is Supposed to Ignore Us
In 1807, Massachusetts Federalist Senator John Quincy Adams voted to support Republican President Thomas Jefferson's proposed embargo against England. Jefferson wanted to bar English goods to force Great Britain to stop harassing American commerce. Adams defied his state and party - New England depended on British trade. "Highly as I reverenced the authority of my constituents," he said, "I would have defended their interests against their inclinations, and incurred every possible addition to their resentment, to save them from the vassalage of their own delusions." Adams lost his bid for re-election.
Over 200 years later, little has changed. In a 2014 Bipartisan Policy Center/USA Today poll, 80 percent said their representatives should vote for what the people they represent want. Not surprisingly, they do. It helps explain why re-election rates to the House average well above 90 percent and to the Senate only slightly lower. Only 17 percent in that poll said their elected officials should vote according to their conscience and experience.
Yet such slavish attention to constituents is not what the Constitution's framers wanted. The Federal Convention was called because states that just looked out for their own interests were paralyzing the United States and its ability to be taken seriously on the world stage. Several provisions in the Constitution signaled the desire that Congress be more independent.
Representatives and senators take an oath to uphold the Constitution - the "supreme law of the land." That is their primary loyalty. To buttress their independence, the qualifications for both chambers are fixed in the Constitution. States may not alter them. Congressional salaries are paid from the federal treasury so that members of Congress are not financially dependent on their districts or states.
Congressional terms (2 and 6 years) are longer than was customary in state legislatures in the eighteenth century, a vehicle for ensuring more stability in national counsels and more independence from voters. Until ratification of the 17th Amendment (1913), senators were chosen by state legislatures, not voters, further insulating them from popular passions.
The Constitution prevents term limits, even though the Articles of Confederation had them. As James Madison wrote in Federalist #53, there is an advantage to returning members: "The greater the proportion of new members, and the less the information of the bulk of the members, the more apt will they be to fall into the snares that may be laid for them." Members of Congress may not be recalled. Recall was viewed as too easily launched on emotionally-packed issues important to a minority but not in the national interest.
Nor may Congress be bound by instructions from home. A provision to allow binding instructions was soundly defeated, 41-10, during House debate on what became the Bill of Rights. Binding instructions, it was argued, would prevent representatives from resisting "popular error." Such instructions would substitute for a broader perspective the limited view of a single district. If every Member had instructions, how could they deliberate and accommodations be reached? Instructions would prevent using one's own judgment.
Senatorial independence was viewed as especially important to cool popular passions. As Madison said in Federalist #63: "there are particular moments in public affairs when the people . . . may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens."
John McCain (R-AZ), known for “straight talk,” demonstrated this independence in August 2018, when his “thumbs down” vote prevented the passage of a Republican health care bill. The Senate can work in a bipartisan way he said: “We know that. We’ve seen it before. I’ve seen it happen many times. And the times when I was involved even in a modest way with working out a bipartisan response to a national problem or threat are the proudest moments of my career . . .”
Given this Constitutional thinking, why are people like John Quincy Adams and John McCain so rare? James Madison, in Federalist #10, looked forward to "a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations." Yet he also acknowledged that "enlightened statesmen will not always be at the helm."
The spread of the franchise, the rise of political parties, the ability to mobilize public opinion and the ambitions of politicians combined to frustrate the hopes of the Constitution's framers. The House opened its galleries to the public from the start. The Senate followed in 1795. In 1979, television cameras began broadcasting House floor action and the Senate joined in 1986. Political fundraising, the power of megadonors and mass/social media created tools to further weaken barriers between public demands and sober deliberation. Gerrymandered districts and political polarization almost ensure re-election for those who toe ideological lines.
The framers' ideal world was not to be. Yet the freedom to debate and act in the national interest is as important today as it was in 1787. That the Constitution's mechanisms don't get us there does not mean we should stop looking for some roads to the same ends.
Photo Credit: Smithsonian Institution
