Writers Read: D.W. Buffa

D.W. Buffa's newest novel to be released is Evangeline, a courtroom drama about the murder trial of captain who is one of the few to survive the sinking of his ship.

Buffa is also the author of ten legal thrillers involving the defense attorney Joseph Antonelli. He has also published a series that attempts to trace the movement of western thought from ancient Athens, in Helen; the end of the Roman Empire, in Julian's Laughter; the Renaissance, in The Autobiography of Niccolo Machiavelli; and America in the twentieth century, in Neumann's Last Concert.

Here is Buffa's take on the American Constitution:

Alexander Hamilton wanted a monarchy; Benjamin Franklin wanted everyone to pray. Everyone wanted a government that would protect the rights of individuals; no one thought democracy anything but the greatest threat to liberty the country could face. Everyone in the Constitutional Convention that met in Philadelphia in the summer of 1787 had a different idea of what the new government should look like; everyone agreed that George Washington was the only proper choice to preside over their deliberations. Proving their decision right, he “lamented his want of better qualifications,” and “claimed the indulgence of the House towards the involuntary errors which his inexperience might occasion.”

During the nearly four months the Convention deliberated, Washington spoke only once, but ruled the Convention with a steady hand and an even gaze. The rules themselves were quite clear. When someone rose to speak they addressed Washington directly. While someone was speaking, no one was allowed to talk or read. When it was time to adjourn, everyone was to stand in their place “until the President shall pass him.” One rule was more important than all the others: everyone was sworn to absolute secrecy about the proceedings: “That nothing spoken in the House shall be printed, or otherwise published or communicated without leave.”

By agreeing to keep secret what was said in the Convention, no one had to worry what the public might think about what they said or how they voted. This did not mean that they did not want a permanent record of what they had done. They knew what they were doing and how it might change the world. James Madison determined “to preserve as far as I could an exact account of what might pass in the Convention.” He was not “unaware of the value of such a contribution to the fund of materials for the History of the Constitution on which would be staked the happiness of a people great even in its infancy, and possibly the cause of Liberty throughout the world.”

Six days a week for nearly four months, never absent even a single day and seldom absent for more than a fraction of an hour, Madison wrote down everything that was said, and did it at the same time he was taking a leading part in the very debate he was transcribing. It was, at the end, a perfect record, the most thorough report of its kind ever written. And no one but Madison ever read it, until after he died, nearly half a century later. He had followed faithfully Washington’s rule that nothing that happened in the Convention could be revealed to anyone who had not been there.

More than anything an American has ever put on paper, Madison’s Notes teach that freedom without limits is no freedom at all, and that democracy itself can become freedom’s greatest threat. That was the issue - democracy - the delegates had come to address. On Thursday, May 31, Elbridge Gerry of Massachusetts said what was on everyone’s mind: “The evil we experience flows from the excess of democracy. The people do not want virtue, but are the dupes of pretended patriots.”

Whatever the failings of democracy, everyone agreed that the lower house had to be elected directly by the people. The only disagreement was on how much time should pass between elections. There were those who insisted that there should be annual elections because this was the only way to keep representatives attached to the opinions of their constituents. Madison opposed this for reasons that go to the heart of the great, if largely forgotten, change that has taken place: not how much larger, but how much smaller, the country has become. In l787 a man on horseback was the measure of the fastest time anyone could travel from one place in America to another. A trip across country that now takes five hours by plane, took months, if it was possible to make the trip at all. Madison thought members of the House should have a three year term because it would take the better part of a year just to manage everything involved in traveling only once back and forth between the nation’s capitol and its most remote districts.

This extended territory, which seemed to make democracy, in which the citizens meet together to make decisions, impossible, was for Madison the “only defense” against the dangers of democracy. If everything is decided by a majority vote, if the majority decides to take away some, or even all, of a minority’s rights, there is nothing the minority can do. As Madison put it, “in all cases when the majority are united by a common interest or passion, the rights of the minority are in danger.” To make his point as emphatically as he could, Madison uses an example that shows how little understanding the present has of the American attitude toward slavery in the past: “We have seen the mere distinction of color made in the most enlightened period time, a ground of the most oppressive dominance ever exercised by man over man.”

The remedy, the way to prevent the danger, was to make the existence of a majority almost impossible, and make a majority, if one came into being, unaware of its own existence. Democracies had always failed because they had always involved small places in which all the citizens gathered together to make decisions. This could not be done in America, and that was precisely the reason why freedom - the rights of individuals - could for the first time be protected: “enlarge the sphere, and thereby divide the community into so great a number of interests and parties, that in the first place a majority will not be likely at the same moment to have a common interest separate from that of the whole or of the minority; and in the second place, that in case they have such an interest, they may not be apt to unite in pursuit of it.”

This argument, made famous as Federalist #10, a perfect description of 18th century America, describe conditions that no longer exist. We now live in a world in which majorities that form in the morning are known everywhere that same evening. Public opinion polls that tell us what a majority wants and how large that majority has become, are broadcast to every distant corner of the country. The only security against the “majority faction” Madison viewed as the greatest threat to liberty is now government itself, a government divided against itself, each part guard against the misconduct of the others, and yet still able to work together in the best interests of the nation. The central problem was the power of the House of Representatives. It had to be elected by the people and it had to work as a democracy, everything decided by the vote of a majority, but how could it be stopped from doing harm to a minority?

Two plans were offered as the basis of discussion about how a republican government should be constructed. The Randolph Plan, offered by John Randolph of Virginia, called for two branches of a national legislature, the first elected by the people; the second elected by the members of the first branch “out of a proper number of persons nominated by the individual legislatures,” that is to say, the state legislatures. A national executive - the president - would be chosen by the national legislature and would be ineligible for a second term. The judiciary would also be chosen by national legislature and would serve “during good behavior.”

It was the second branch - the senate - that gave all the trouble. The small states, which meant all the states except Virginia, Pennsylvania, and New York, insisted that each state should have an equal vote. Delaware, and some of the other small state delegations, had been expressly prohibited from changing the equality of votes the states had under the Articles of Confederation. That was the legal argument. The political argument was that without this protection the new, national government, dominated in both the House and Senate by the larger states, would destroy the small states. Charles Pinkney of South Carolina, with a quick, incisive, and at times inventive, mind, suggested giving every state at least one senator and no state more than five. This went nowhere. The small states were adamant: equal vote in the Senate or they would never join the Union.

In an attempt to make a fresh start, Patterson of New Jersey offered a plan of his own. He opposed a national government and reminded the Convention that some of the delegates from the small states would rather submit to a foreign power than come under the domination of the large states. The states were sovereign, and for that reason representatives “must be drawn” from the States, not from the people; “we have no power to vary the idea of equal sovereignty.” John Randolph was appalled, and had an immediate reply: “When the salvation of the Republic is at stake, it would be treason to our trust, not to propose what was necessary.” The issue was clear: “The true question is whether we shall adhere to the federal plan or introduce a national plan.”

Two days later, on Monday, June 18, Alexander Hamilton rose for the first time to address the Convention. His speech destroyed whatever hope those who opposed a national government ever had. Hamilton had not spoken before, “partly from regard to others whose superior abilities and age and experience,” made him “unwilling to bring forward ideas dissimilar to theirs,” and partly because he did not agree with the views of his colleagues from his own state. He was unfriendly to both the Randolph and the Patterson plans, especially the latter. The “amazing violence and turbulence of the democratic spirit” was the cause of “the union dissolving or already dissolved - he sees evil operating on the States which must soon cure the people of their fondness for democracies….” Aware that “it went beyond the ideas of most members,” he offered a sketch of what he thought would be the best government. The House, elected by the people, would have a three year term. The members of the Senate, elected from election districts in the States, would, like the executive and the judiciary, serve for life, “or at least for good behavior.”

No one was for any of this, but now, instead of two, there were three plans, and the Randolph Plan, the plan that proposed a national government, was no longer at the opposite extreme from the Patterson Plan; it was now the moderate position. Hamilton had effected a compromise. Opposition to the idea of a national government all but disappeared. But that did not mean the small states would yield on the question of equal representation in the Senate.

Benjamin Franklin, who at eighty-one was the oldest delegate, had heard enough: “after four or five weeks close attendance and continued reasoning with each other - our different sentiments on almost every question, several of the last producing as many noes as ayes, is methinks a melancholy proof of the imperfections of Human Understanding.” Why, he asks, have we not thought of “humbly applying to the Father of lights to illuminate our understandings?” It had been done before. “In the beginning of the Contest with Great Britain, when we were sensible of the danger we had daily prayer in this room for the divine protection - Our prayers, Sir, were heard, and they were graciously answered.”

Having reminded everyone that it was in the very room in which they were now deliberating that American Independence had been declared and the war for American liberty begun, Franklin warns them that if they fail in their responsibilities the consequences will be nothing short of catastrophic. Divided by “our little partial local interests…we shall become a reproach and a bye word down to future ages. And what is worse, mankind may hereafter from this unfortunate instance, despair of establishing Governments by Human wisdom and leave it to chance, war and conquest.”

Cautioned by Franklin, the Convention began to work in earnest. No one talked anymore about a new confederation of sovereign States. There would be a national government, but a government, as Madison, nearly half a century younger than Franklin, put it, that would not only “protect the people against their rulers,” but against “the transient impressions into which they themselves might be led.” To do this required two main things. The first was “a body in the Government sufficiently respectable for its wisdom and virtue,” a Senate that, as the Convention eventually agreed, would be made up of two senators from each state serving six year terms. The second was a single executive, a President, elected by electors chosen by the state legislatures and in that way made independent of the national legislature.

No one worried who the first President might be; the concern was with what might happen later. When Franklin observed that, “The first man put at the helm will be a good one,” everyone knew he meant George Washington. When Franklin added that, “No body knows what sort may come after,” and that the “Executive will always be increasing here, as elsewhere, till it ends in a Monarchy,” they understood that the threat to liberty is never ending. It was the reason Alexander Hamilton hated democracy: it always led to despotism, the rule of one man supported by a mob.

Day after day, James Madison wrote down every word of the greatest sustained debate ever undertaken over what a constitution for a free people should be, until, at the end, he had written close to a quarter of a million words. No one read what Madison wrote while he was alive; not nearly enough have read it since. Lincoln spoke of the necessity to make the Declaration of Independence America’s Civic Religion; Madison’s Notes on the Constitutional Convention should be American’s Civic Textbook.