James P. Young
defining treason, banning religious tests for public office, limiting the exec-
utive’s war power, etc. These rights were expanded by the adoption of the
Bill of Rights shortly after ratification of the constitution, which included
rights of free speech and press, freedom of religion, freedom of assembly,
a due process of law and fair trial guarantee, bans on self-incrimination,
double jeopardy, excessive bail, fines, and cruel and unusual punishment
(Kateb 2003,pp.585–6).
9
But the constitution fell short on a number of
liberal and democratic criteria. First, it tacitly accepted slavery, in violation
of any theory of natural rights, while at the same time counting three-fifths
of all slaves in apportioning congressional representation among the states,
thus giving disproportionate power to the slave-holding southern states.
As Abraham Lincoln remarked in 1854, ‘The slaves do not vote; they are
only counted and so used as to swell the influence of the white people’s
votes’ (Lincoln 1989a, p. 331). There was no right to vote as such, with the
suffrage requirements being left to the states, nor was there any question
of women, African-Americans or Native Americans having the suffrage.
(In fairness, it should be added that such groups were not allowed to vote
anywhere else either.)
10
The President was chosen indirectly by an Elec-
toral College rather than by direct popular vote, and the Senate was initially
elected by state legislatures, again without a direct popular vote. All states
were given two votes in the Senate, thus giving another disproportion-
ate grant of power, this time to states with small populations. Moreover,
a complex and not very well-defined separation of powers between the
legislative, executive and judicial branches made majority decision-making
very difficult and the distribution of power between the nation and the states
was, if anything, even less well-defined, a fact that contributed to the Civil
War and which continues to be a subject of contention to this day.
11
This
open-ended character of the constitution, the fact that its authors agreed
on the text but not the meaning of the document, makes it, as Sheldon
Wolin has argued, an invitation to hermeneutical politics (Wolin 1989,p.3).
And, as Abraham Lincoln under stood, one of the fundamental American
political problems is to reconcile the tensions between the Declaration of
9 There has even been a systematic interpretation of the constitution as a libertarian document with a
natural rights base, though it should be treated with caution. See Barnett 2004;cf.Lazarus2004.
10 The extent to which white males were entitled to vote is unclear and varied from state to state. The
suffrage was no doubt higher than in Britain at the same time. See Keyssar 2000,p.7.
11 Dahl 2003,pp.15–18. For a less institutional, more theoretical, critique see Wolin 1981,pp.9–24
and 1989,esp.pp.82–117.
380