68 Pages Posted: 22 Dec 2012 Last revised: 6 Jan 2013
Date Written: 2012
Did our Founders wage a Revolution to dethrone the king and aristocratical monarchy of England to establish an aristocracy here in America? Nay. The promise of Independence, the whole purpose of conducting a war in the name of unalienable rights, was to secure a just system of self-rule, a government of, by, and for, the People – the republican form. This bipartisan promise was not a form of government that would forever be secure once established, but a form that We the People could forever preserve through electing those representatives faithful to what Jefferson described as “the principles of 1776.”
The ultimate question of today, is whether those fundamental principles characteristic of our republican form demand (more) regulation of money in elections, or, whether changes in time have made the First Amendment an election issue substantially different from the Founding? Has the role of free speech in the realm of election law since 1976 been consistent with the principles of 1776? And if the “corruption of every government begins almost always with the corruption of its principles,” is it not necessary to recur to those principles in attempting to answer this, perhaps age-defining question?
The first part of the article is “a recurrence” to the principles underlying the Revolution. Through deploying an arsenal of Founding sources which illuminate original intent, we will fully analyze the essential elements of republicanism. In learning why the Framers fixed reapportionment of The House in the Constitution – to ensure that Congress did not “cease to be the Representatives of the people,” as noted by George Mason – we will discover why the Great Compromise was indeed great. For the compromise sheds bright light on the meaning of equal representation and its synonymous relation to securing a ‘true majority.’
The second part of the article, an extension of the fundamental principle of preserving the republican form, details the power given to Congress in Art. I Sec. 4 of the Constitution. Given that elections are the “natural cure” for maladministration in republics, Federalist 59 describes this power as “the means of [Congress’s] own preservation,” and multiple State Conventions viewed the power as necessary to secure representation. In clarifying the Framing bases for property qualifications – how they were intended to prevent corruption, while most voters owned land in 1787 – assumptions of the Founders might be altered.
Where even if one believes that our Founders were aristocrats due to their property qualifications, restricting the franchise by property is fundamentally different from the free or non-corrupt electoral process (manner), on which the existence of the republican form is predicated. For the ‘aristocratic manner of election’ in eighteenth century England where the ‘royal interests’ of the crown, “the few,” increased their power in Parliament through the use of wealth – usurping the power of “the many” – lead directly to the poor policies which preceded our Revolution.
Thus, we come back to the pivotal question, the focus of part 3: free speech or free elections? Expanding on Professor Lawrence Lessig’s “dependence corruption,” the article delineates a conception of corruption in light of Federalist Nos. 73 and 79, and the principles of representation demanded by the Revolution (as ensouled in the Constitution). In utilizing a multitude of original Framing sources, this article differs from related scholarship in how it analyzes today’s electoral process through the vision of the Founders and their generation – through tapping the “spirit of 1776.”
Keywords: Constitution, republicanism, fundamental principles, election law, campaign finance, Buckley v. Valeo, Citizens United v. Federal Election Commission
Suggested Citation: Suggested Citation
Brugman, Zachary Seth, The Bipartisan Promise of 1776: The Republican Form and Its Manner of Election (2012). Available at SSRN: https://ssrn.com/abstract=2192705 or http://dx.doi.org/10.2139/ssrn.2192705