April 15, 2018

What Congress Today Can Learn from the First Congress of 1789

Interview with Historian Fergus Bordewich / 05.26.2017

If you think the current Congress has problems, look back 228 years to the very first Congress.

Political factions were even more divided then — yet somehow they achieved more compromise and passed numerous beneficial public policies. The lessons for the modern era are countless.

So many things America now takes for granted were up in the air. That first Congress spawned numerous precedents, from the first outside lobbying campaign, to the first treaty with a foreign nation, to the title bestowed upon the nation’s chief executive. (John Adams wanted “His Majesty” instead of “President.”)

Fergus Bordewich is an award-winning author and historian who wrote the 2016 book “The First Congress: How James Madison, George Washington, and a Group of Extraordinary Men Invented the Government.” (Here’s a video clip of Bordewich with Zooey Deschanel on the TLC celebrity ancestry show Who Do You Think You Are?)

Bordewich spoke with GovTrack Insider about what the first Congress did, how they did it, and what Donald Trump and Paul Ryan could learn from their predecessors George Washington and James Madison. Plus, what can the first Congress reveal about how congressional investigations and possible impeachment with the Russia scandal could play out?

[Additional context occasionally inserted in brackets.]

What were some of the precedents set by the first Congress which are still obeyed today?

Bordewich: It’s fair to say the first Congress was the most productive single Congress ever in history. The amount of work it did was prodigious. It accomplished that work despite being full of conflict, competition, and rivalry. We shouldn’t think of the Founders as a hug-fest, where everybody got along wonderfully and agreed on everything. It was as divided and divisive as any other Congress in American history. Despite that, it succeeded.

So what did it do? The first Congress essentially created the government. The Constitution didn’t create the government. It laid out a sketch plan, a set of ideas for what the government was supposed to be. The first Congress took those words and made a great complex machine out of them. In other words, the government that we pretty much have today. It figured out how a Congress was supposed to function.

The first Congress created the executive departments. [Such as State, Defense (then called War), and Treasury.] They created the judiciary system, including the Supreme Court and all the federal courts. They created a financial structure for the United States government, based on the principles of capitalism. That was a very tough fight, by the way, since [lead advocate] Alexander Hamilton was not a member of Congress. It was a shortcoming of my book that I did not express his words in rap form! [Laughs.]

The first Congress added the first amendments to the Constitution, what we now call the Bill of Rights, though they were not called that then. Very bitter battle, by the way. They also established the first national capitol, on the Potomac River [modern-day Washington, D.C.]. Whether George Washington was going to be called His Highness or various other regal terms, as John Adams liked but Washington rejected.

What lessons can we draw from how the Congress of 1789 bridged their differences, that might be able to provide some lessons for the Congress of 2017?

One reason they succeeded was that they were afraid to fail. They were terrified of failure. That first Congress was already Plan B! Plan A was the Articles of Confederation, which failed totally. There was no Plan C.

Even though our government is very old, over 200 years old now, it’s fundamentally a fragile thing. Patriotism does not lie in tearing down government. The American Revolution was formed to put politics intogovernment, not to take politics out of government.

It’s a notion common today in the United States that I find deeply un-American, that there’s somehow something wrong with government, that politics is dirty. Politics has always been a rough business in America, from the beginning. It’s always been combative. We’ve had too much of the public, and even members in government, that treats government as the enemy. That is an insult to the Founders.

Talk about the relationship between the presidency and Congress at the time. What lessons can Trump learn from Washington, especially regarding relations with Congress?

The precedent that George Washington set as president was one of modesty, cooperation, and collaboration with Congress. The personal humility, he’s remarkable for that. I mean, he was a military commander, a patrician Virginia gentleman. He was physically huge like Trump, a dominating physical figure. But as a political man he was humble, devoid of pretension and aristocratic conceit.

Trump could learn some humility and modesty from Washington. Trump is about the absolute opposite, the antithesis of Washington in that regard. Pence, I think, actually has a rather modest personality. It’s quite striking, what a low profile he’s kept.

Talk about the vice presidency. Your book talks about how the VP was originally supposed to take a much more active role in the Senate, but nobody liked John Adams! The VP basically just breaks tied votes now, instead of actually presiding. Imagine a world where Pence or Biden ran the Senate instead of Mitch McConnell.

The vice presidency could have been crafted in any number of ways. Adams was possibly one of the worst choices for that job: a prickly, annoying, conceited personality. Politics aside, he irritated everybody. He was chosen because he was held in high esteem for his staunch work during the Revolutionary War. His best years were during the Revolution, his worst years were as vice president, or maybe even as president.

He participated in the activities of the Senate as though he were its senior member. A more conciliatory, cooperative man might have succeeded. But Adams expressed himself in an opinionated and condescending way. That lost him potential allies. The vice presidency might have evolved into a more active role in legislation. Somebody who influenced legislation, who participated in debates. It’s possible the vice president would have been the senior member of the Senate, whose opinions, feelings, and insights influenced legislation. In much later years, that could have meant anything.

Especially because the first Senate met in private, right?

A very good point. The House of Representatives was open to the public, and it was a magnet for tourists. The galleries were packed, because Americans loved politics. They were so proud that they had a republican government. The Senate remained closed for more than a decade. People who attempted to observe the Senate in action were turned away by a guard.

It was deeply ambivalent in the political class at the time, among the Founders, over just how democratic or republican this government was supposed to be. Small-d, small-r; the modern parties don’t come into this discussion at all. Bear in mind that there were a lot of obstructions in many states about who could vote. Forget about women, forget about African Americans — there were a lot of restrictions even on white male voters. The structure was pretty aristocratic. There was this sentiment that too much democracy was a dangerous thing.

So there were even advocates for the Senate being a lifetime appointment. Senators were seen by many as something like the [British] House of Lords or the Roman Senate, to be unaffected by popular turmoil, the mob, the democratic masses. It was thought that allowing the public into the chamber would interfere with the solemnity of their deliberations. That broke down in about a decade. Americans wouldn’t tolerate it, frankly.

You said there was a feeling that too much democracy might have been a bad thing. Last year, the candidate who lost by 3 million votes nonetheless won the presidency. How was the Electoral College viewed at the time?

It was seen at the time as a kind of brake on democracy. The Founders, by and large, did not call themselves democrats. They did not think they were establishing a democracy, which was almost equivalent to mob rule, in the minds of many people of that generation. They saw themselves as establishing a republic. That is to say, a government representing the whole people, as opposed to an aristocracy — but was mediated at every step of the way by representatives.

They thought of democracy as mobs in the streets, people swayed in every directions by irresponsible demagogues. They were frightened, with good reason, of potential tyrants who played to the masses, who whipped up people’s emotions, played on their fears and discontents. Sound familiar? [Laughs.]

They structured the government as best they could to prevent that from occurring. The Electoral College was one more piece of machinery that was designed to place responsibility in the hands of a more knowledgeable, trustworthy elite. The Founders would have been deeply dismayed and shocked, appalled that somebody with the character of Donald Trump would become president. He represents what they feared.

What would the Founders’ thoughts have been on Congress? For example, that in many ways they’re no longer the primary law-making body, they’ve ceded so much of that to the presidency and executive branch agencies.

At the beginning, the early leaders — Madison in particular — worked heroically to put some power into the presidency. The presidency was a new office in 1789, it didn’t exist before. It lacked power. Congress, the legislature, was the dominant body of government even well into the 20th century, with the exceptions of Jackson and Lincoln. A president essentially executed laws that were crafted in Congress. No president until Franklin Roosevelt came into office with an agenda for his first 100 days.

Actually, William Henry Harrison had a very detailed ‘first 31 days’ plan.

[Laughs.] We now expect a president to come into office with a detailed agenda, of which Congress will maybe enact. The presidency has grown into the predominant branch of government. How would the members of the first Congress feel about that? They would be very worried that the presidency has as much power as it does today. They would have reason to fear tyranny. They didn’t use the word ‘dictatorship,’ they used the word ‘tyranny.’

Today’s powerful presidency can, for example, wage a war without even going to Congress. [Congress hasn’t formally declared war for an American military venture since 1941.] It would vindicate the fears and anxieties of those Founders who feared a strong executive at the beginning.

Is there any way to revert more power back to Congress? Or is there no way to put that genie back in the bottle?

The United States is by far the single most powerful country in the world, with vast international responsibilities of a complexity that didn’t exist in 1789. We have to act on the world stage. In that sense, the members of Congress can’t represent the United States [internationally] in that way.

What does Congress have to do? Congress is crippling itself with its raw and venomous partisanship. You have one party in particular that for the last 35 years or so has attacked governing, attacked Congress itself. By undermining the institution of Congress, they’ve undermined the power of Congress to play a co-equal role in government.

The biggest story right now is everything with Trump and Russia — a special counsel, Michael Flynn taking the Fifth, James Comey testifying soon. Are there any lessons from the first Congress about how that could go?

The Founders put impeachment into the Constitution for a reason. They foresaw that officials, including possibly a president — not to mention appointees — could become corrupt. They knew human beings were flawed. They didn’t believe they or future public officials would all be angels or honest. I don’t think they would be shocked at the prospect of impeachment.

If anything, they might think it remarkable that there have been so few impeachments in American history! It’s a tool that’s used rarely, and not without deliberation. [Andrew Johnson and Bill Clinton were both impeached by the House but not convicted in the Senate, while Richard Nixon resigned before his likely imminent impeachment.]

I think they would see Trump as very much the kind of figure who threatened American government. They would see the kind of concerns that have been raised, raised, though not yet proven. The possible collaboration of his campaign with a hostile foreign government, they would see as something that could possibly rise to the level of impeachment.

Trump is also characterized by massive conflict of interest, which may or may not itself rise to an impeachable offense. But politicians of the 18th century really didn’t think about conflict of interest whatsoever. They had a great deal of conflict of interest, including on the part of George Washington, placing the capital across from his estate at Mount Vernon and dramatically raising his property prices.

The current Cabinet has attracted its fair share of controversy, in particular Jeff Sessions, Tom Price, and Betsy DeVos. Can you talk about what the first Cabinet did, precedents they set, and what they would think about the current Cabinet?

The first Cabinet had only four executive departments at the time. [The current Cabinet has 15 official departments, plus seven others classified as ‘Cabinet-level.’] Hamilton, the first Secretary of the Treasury, stands out particularly for his tremendous intellectual brilliance. He was one of the very few political men in the United States who understood finance and economics. That’s hard to believe today, but those were rare sciences that were not well-understood in America. This was an agricultural country primarily, not a business country.

So Hamilton crafted this extraordinary financial plan, which laid out the principles of capitalism as the foundations of the United States Treasury. That was one of the most significant achievements of Congress, which debated, debated, debated his plan, and enacted it finally. It was one of the most hotly contested issues of the first Congress.

Jefferson, the Secretary of State, was late on the scene, because he had been appointed while he was still in Paris. He really wanted to back to Paris and not become Secretary of State. It was a much smaller office in the 18th century than it is today. The United States barely had relations with any countries. It was a trivial nation, a third world country essentially. Jefferson did not swing as much weight in the Cabinet at that time as Secretaries of State would in later periods.

The Secretary of War, Henry Knox, essentially acted as an administrator. The wars at the time were wars against Indian tribes. It was a very limited office.

What would they think of today’s Cabinet? The creation of the executive departments was one of the great successes of the first Congress. Congress created them, not Washington himself. The presidency had very little power, so expanding that was a collaborative process between Congress and Washington. Did the Founders foresee our size today? Few had aspirations for an empire. They couldn’t see the world 200 years in the future, anymore than we can today. I think many would have appreciated the growth of the executive department as commensurate with the growth of American power and responsibilities of government.

How contentious were the Bill of Rights at the time, even though they’re now considered foundational? This month marks the 25th anniversary of the last time a constitutional amendment passed, in May 1992. Could a constitutional amendment ever pass again?

There’s no such thing as a schedule for passing an amendment. The country has gone through very long periods without any amendments being passed. [The longest such period was 61 years, between 1804 and 1865. There was also a 43-year gap between 1870 and 1913.] It’s not as if amendments are somehow imperative.

I don’t think it’s impossible today. I think it’s rare, but it’s always been rare unless there was sufficient consensus or sufficient concentration of power. The Reconstruction amendments [the 13th, 14th, and 15th Amendments abolishing slavery and granting former slaves citizenship and the right to vote] did not reflect the national consensus whatsoever. Why? Because the 11 most reactionary states weren’t in the Union! Tragically, that’s also the reason they were never implemented. Once those 11 states come back, those amendments became dead letters for a century.

When women’s suffrage passed, there was a consensus in the country that the time had come. Ironically, when Prohibition passed there was a consensus in the country. It was a mistake, obviously, and had to be undone.

There were no formally organized parties in the beginning. But there were Federalists, those who believed in the Constitution and the government that the Constitution made possible. They dominated the first Congress, with huge majorities in both houses. The Anti-Federalists hated the Constitution, they thought it was a disaster right from the beginning and opposed it. They opposed a strong and vigorous central government, the antecedents to some extent for the Tea Party and Freedom Caucus.

Anti-Federalists demanded hundreds of amendments to the Constitution that would weaken the central government, weaken the presidency, restore more power to the states. A great debate in the first Congress was whether or not there would be any amendments. Madison took more than 200 and winnowed them down to 12, of which 10 of them passed. [One of the two that didn’t pass at the time was ultimately enacted in 1992 as the Twenty-Seventh Amendment, tempering raises in congressional pay. The other that didn’t pass would have pegged House representation at one representative for every 50,000 constituents — which would have resulted in more than 5,000 representatives today.]

Some of the amendments that today loom large were barely debated, like the Second Amendment. There was almost no discussion of the Second Amendment in the Congress when it passed. It wasn’t considered controversial, it wasn’t considered important — it wasn’t considered seriously by anybody. [Bordewich’s book also contains a fascinating passage about how the amendment was reworded to explicitly refer to the right to bear arms as being necessary for militias as opposed to individuals, contrary to the current position of the Supreme Court and the NRA.]

When we think of the Bill of Rights, we think mostly of the First Amendment — freedom of speech, press, religion, and all that. Many members at the time thought these were trivial, that Congress had no business even considering such things. Either because they didn’t rise to a level of great enough importance, or because it should be up to the states. Almost nobody in Congress felt that the passage of the Bill of Rights was a big deal. That was one of the most astonishing aspects of the research I did into this book.

Wasn’t much of that because the Supreme Court didn’t incorporate most of the amendments for the states until more than 100 years later?

Precisely. The amendments only applied to actions against the federal government, they did not apply to actions against state governments. The federal government had no mechanism whatsoever to protect Americans from actions against the state governments, mostly until the Civil Rights era in the 20th century. That’s something most people don’t understand at all, that there was almost no enforcement at all of what we now consider bedrock rights. The Founders considered these vague statements of principle which didn’t mean anything in practical terms.

Each state had two senators, but you have a line in your book about how the first House districts varied in size from 96 thousand for a district in Maine to 16 thousand for a district in Georgia. Yet now it’s almost reversed. Due to some Supreme Court decisions, we now have almost exactly equal congressional districts. Meanwhile, the Senate’s inequality ratio between the largest and smallest state has absolutely swelled, now at 66:1 between California and Wyoming. It’s the opposite of what the Founders intended.

It’s very sharp of you to pick up on that. If the Founders were here today, they would recognize this as a crisis and something that needed to be remedied. 200-odd years ago, there were small states and large states, so it wasn’t an insignificant difference. But the ratio of inequality has unbelievably ballooned.

If there was any reform that could change the way government operates for the better, it would be to reapportion Senate districts. It grossly distorts power in the federal government in a way the Founders would have found very worrisome, shocking, irresponsible, and not in keeping with their intentions. It demonstrates how the power of states is baked into the foundation of the country. The Founders never foresaw the disparities in population among states today.

Madison initially fought very hard at the Constitutional Convention for both houses being represented in terms of population. Madison opposed the system that was enacted, and he was absolutely right.

I’m going out on a limb here, because I don’t have documented proof of this. But I think what they probably would have assumed would occur is that when states became too large, they would subdivide. That was certainly what was assumed would occur in California, where I happen to live at the moment. It was assumed that California would subdivide into two or several parts. That was very much on the table with respect to Texas, too. That’s why we had these huge territories like the Nebraska Territory or Oregon Territory, which were subdivided for statehood.

The Supreme Court originally had six justices, which is notable not only for being fewer than now but also for being an even number. Can you talk about the first year or two for the Supreme Court, and what lessons it might have for now?

If we’re talking about the first few years, it had no relevance because the Supreme Court didn’t even meet! It was a weak and undernourished branch of government for many years, until John Marshall became Chief Justice [in 1801]. Even then, it wasn’t until the 20th century that they asserted themselves as a coequal branch of government. That’s a modern phenomenon. As late as the 1830s, and possibly later, a person could just disregard the Supreme Court as Andrew Jackson did.

Trump expresses little respect for the judiciary, using phrases like “that so-called judge.” Even Nixon turned over the Watergate tapes when the Supreme Court ordered him to. Could we see a return to a Jacksonian “The Supreme Court made their decision, now let them enforce it” mentality?

I think it’s possible, as long as Trump retains the support of a Republican majority in Congress. That’s a big ‘if,’ at this point. Could we see the president disregard the courts, including the Supreme Court? Yes. I think it’s entirely within his character, his pattern of behavior, and his contempt for American institutions. I wouldn’t be a bit surprised. We’ll find out the answer to that question as things unfold in the next months and years. What Trump likes about Jackson is his imperiousness. He admires what is Jackson’s worst instinct, his defiance of institutions. That doesn’t bode well.

The last few months have been the most tense ever between the government and the press, with talk about opening up the libel laws, accusations of fake news coming from the president, and a record number of newspaper endorsements against Trump. What was the relationship between the government and press like during the first Congress?

The press has evolved over 200-plus years. The press then, and for most of American history, was intensely partisan. It became even more so in the subsequent congresses of the early 19th century, just bitterly partisan. By no means as responsible with its standards as it claims to be today.

In the early years of the republic, I’m not sure if it’s meaningful to talk about a ‘relationship’ between the press and government. There was no investigative reporting, it didn’t even exist. The press didn’t have any practical way of getting government documents, or anything of the sort. We have a much more aggressive press today. [In the 19th century before the Government Publishing Office was created, publication of government documents was often the province of news publishers. The Congressional Record is the archetypal example.]

We are in a really critical moment. I don’t think there’s ever been a more dangerous moment in American history, with respect to the denigration of the press, information gathering, responsibility of the press to enlighten the public and monitor government. Especially the denigration of fact, of truth, by a large sector of the public — and even part of the press itself — in the interest of partisanship. It’s anti-American, it’s dangerous, it’s deeply subversive. Statistics that show a large percentage of the public doubting the truth of factual reporting is really alarming. We’ve never seen this before in American history.

I don’t think partisanship in the press is anything new. It’s been more true in American history than not. It’s only been a fairly brief period in which news outlets aspired to be objective. If you were to go back to the famous press war during the election of 1800, you read that stuff and it will stand your hair on end. Scurrilous and dishonest accusations that were hurled by one party against each other, in both directions. Partisanship isn’t new, but the disregard of fact is new. It’s hard to believe this is something that’s become widespread, in a country that purports to have as high a level of education as we have today.

The Founders would be very frightened by this. But I think they would admire the growth and maturity of the press over the course of American history, having grown from a minuscule number of publications to both print, broadcast, and now online organizations that have an unparalleled ability to reach the masses. The Founders did want a free press, but newspapers were the Internet of the 1790s.

Originally published by GovTrackInsider under a Creative Commons Attribution 4.0 International license.