How History Made The Constitution


The Constitution requires that Congress “assemble at least once in every Year,” to guarantee that the people’s voice may be heard continually, and that the Executive shall never imitate Oliver Cromwell, who strode into the House of Commons and contemptuously told the members, “You have sat too long here for any good you have been doing. Depart, I say, and let us have done with you. In the name of God, go!”

Fresher and nearer, if less violent, examples doubtless came to the framers’ minds: the refusal of royal governors in Virginia and Massachusetts to summon the legislatures in 1774 and the dissolution that same year of the assemblies in another six colonies.

Direct, forcible, physical intrusion into the legislative precincts was, however, only one way by which a despotic executive might seek the Republic’s destruction. King George had already demonstrated a more insidious and more probable route to tyranny. Through shrewd disbursement of public funds, he had, in the sardonic words of the historian Edward Channing, “purchased the balance of power in the House of Commons with the nation’s money” and thus had bought the government itself.

The new Constitution installed two safeguards against an American repetition of this royal corruption. First, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law....” Taken literally—as the framers meant it to be taken—this prohibited spending public money, or even possessing it, without prior authorization from both houses of Congress.

Second, those who had spent or acquired any such funds would have to justify themselves publicly. “A regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” Patrick Henry ridiculed the accounting requirement as “very indefinite and indeterminate: It may extend to a century.” Any peculating rascals would, he argued, “act like fools indeed, were they to publish and divulge their iniquity, when they have it equally in their power to suppress and conceal it.”

But then, Henry generally distrusted the Constitution and its “beautiful features.” When he came to examine them, he said, “they appear to me horribly frightful. Among other deformities, it has an awful squinting. It squints towards monarchy....”

This time Henry missed the point. By making regular accounting not merely a commercial duty but a constitutional principle, the framers were establishing a moral imperative. A century before the inception of the Civil Service Commission, they were assuring the country (and its officeholders) that a public office is a public trust.

Morality in government, however, did not mean requiring any particular set of beliefs among the governors. Indeed, to ensure that religious preference would never keep anyone from public service, the framers abolished the “religious Test” as a “Qualification to any Office or public Trust under the United States.” The abolition meant that a place in government was now open to Roman Catholics, Jews, or even atheists, all groups disqualified in England and in many states too.

No matter how broad the base of its membership, no legislature could perform its lawmaking function, or its role in countering the power of the executive, if the government of the day could harass members morally, physically, and through court process. Remembering the misadventures of a roguish MP named John Wilkes, the framers provided that senators and representatives would “in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

Wilkes, an erudite, witty rakehell, had enraged George III by a bitter attack on the king’s speech to Parliament in 1763. Although Parliament was then in session, administration bullies broke into Wilkes’s home, seized his papers, arrested him, and locked him in the Tower of London. After his release by habeas corpus on the ground of parliamentary privilege, the ministry pressed its obliging majority in the House of Commons to resolve that the privilege did not “extend to the case of writing and publishing seditious libels, nor ought to be allowed to obstruct the ordinary course of law.”

Thus outlawed, Wilkes fled to the Continent, where he lived for more than four years. He returned in 1768, just as the American taxation battle was raging. The electors of Middlesex returned him to Parliament, but the Commons (on ministerial orders) expelled him. Returned again, he was once more expelled. The process was repeated a third time. On the fourth try, although Wilkes polled 80 percent of the vote, the Commons gave his opponent the seat.

Wilkes’s defiance of king and Parliament brought him immense popularity among American radicals. “Wilkes and Liberty” became their watchword; “45” (which was the number of the issue of Wilkes’s North Briton in which he had skewered the king) took on ritual significance; and a new settlement on the banks of the Susquehanna adopted the name of Wilkes-Barre (Isaac Barré being an MP who vigorously championed the American position).