Corruption and the Constitution: Principle of Constitutional Law and a Foundation of a Virtuous and Moral People

Essay Read By Constituting America Founder, Actress Janine Turner

Corruption means rottenness—disintegration caused not by external pressure but by some inner flaw. Political corruption occurs when a ruler, responsible for the country’s good, the good of the citizens, instead uses his authority to obtain a private benefit—something that seems good for himself, his family, his friends. Distrust and faction then weaken the body politic.

At the Constitutional Convention, the American Founders knew what corruption was. They had read the Bible which had taught them that corruption began with the human heart, that sin persisted in each of them, and that they might succeed in suppressing it. Each man at the Constitutional Convention was wary of the American people, their colleagues, and himself.

They had declared independence from the British Empire, a monarchic regime which had elevated political corruption to a routine practice, a way in which government ran. British monarchs exerted control over Parliament, the supposedly separate legislative branch, by offering key members positions within the royal administration, positions members could hold while continuing to sit in Parliament. The Founders saw a similar form of corruption in George III’s rule over the American colonies. Amongst the “long train of Abuses and Usurpations” designed to reduce the colonists to the status of subjects under an “absolute Despotism,” we find: “He has made Judges dependent on his Will alone, for the tenure of their Offices, and the Amount and Payment of their Salaries,” and “He has erected a Multitude of new Offices, and sent hither Swarms of Officers to harass our People, and eat out their Substance.” Such patronage bound public officials to the monarch, putting them at his service, turning them against governing for the good of the people governed.

George III was no anomaly. “All men having power ought to be distrusted to a certain degree,” James Madison warned, at the Convention. Corruption being ingrained in every human heart, the Framers of the United States Constitution never supposed it to be limited to regimes in which one person or a few persons ruled. Elected representatives in a democratic republic might engage in corrupt rule as readily as tyrants who call themselves kings or oligarchs who call themselves aristocrats. The small republics, the states whose people they represented at the Constitutional Convention had seen any number of such incidences. And the states, delegates agreed, were highly “democratical.”

In late June, the delegates were considering the legislative branch—instantiated by law in what would become Article I of the Constitution. How shall the members of the House of Representatives be paid? And will they be eligible for appointment to the executive branch? Money and power: indispensable to any government, the purpose of which is to secure the unalienable rights of life, liberty, and the pursuit of happiness, but also potentially the means of corruption, whereby the instruments of public good might be diverted to the acquisition of private wealth and aggrandizement.

When it came to paying Congressional representatives, all agreed that they should receive, in the words of one delegate, “adequate compensation for their services.” But who should pay them? To avoid the corruption that might creep in if they set their own salaries, some delegates argued that the states should determine them. Edmund Randolph of Virginia disagreed, arguing, “If the States were to pay the members of the National Legislature, a dependence [upon the States] would vitiate the whole system.” More specifically, Madison observed, this would make Senators “mere Agents and Advocates of State interests and views instead of being the impartial umpires and Guardians of justice and the general Good.” Alexander Hamilton concurred, distinguishing between “the feelings and view of the people” and “the Governments of the States,” as the latter might well be unfriendly to “the General Government.” Since “the science of policy is the knowledge of human nature” as it is seen in ruling and being ruled, and since such knowledge tells us that “all political bodies love power, and it will often be improperly attained,” state legislatures ought not be “the pay masters” of federal officials.

These arguments prevailed. Indeed, the state legislatures were to select the members of the United States Senate anyway, giving the state governments substantial influence on the Congressional conduct. Control over pay would have extended states’ control to the House of Representatives. Article I, section 6 stipulates that “Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law”—federal law—and “paid out of the Treasury of the United States.”

George Mason expressed no concern about corruption in the form of salaries, but the corruption itself worried and disgusted him. He had also become increasingly concerned about the ability of the states to defend themselves against encroachments by a newly empowered federal government, which, he worried, might ruin the states by corrupt means. When the question of making Congressional representatives ineligible for executive branch offices during their terms, and perhaps for a year after leaving office, he rose to say, “I admire many parts of the British constitution and government, but I detest their corruption.” Citing “the venality and abuses” of the British regime, he described the disqualification of Congressmen from executive offices as “a cornerstone of the fabric of the Constitution” and “the cornerstone on which our liberties depends.” Though mixed, the metaphor was ardently raised, for, whether offices are filled by the executive, as in Great Britain, or by the legislature, as in Virginia (“many of their appointments are most shameful”), “it is necessary to shut the door against corruption.” If legislators are allowed to take executive offices, “they [might] make or multiply offices, in order to fill them”—precisely what George III had done in North America. Mason identified ambassadorial posts as a rich field for such bestowals, as there are many small and obscure countries where a Congressman might find himself and his wife elevated to high and remunerative positions in exchange for a few votes on important national matters. Exactly this practice explains why “the power of the [British] crown has so remarkably increased in the last century.”

Against this, proponents of dual officeholding—in particular, James Wilson of Pennsylvania—maintained that disqualification would prevent good men from serving their country to the fullest extent of their abilities. Elected representatives are likely seen by their fellow citizens as men of virtue and ability. “This is truly a republican principle. Shall talents, which entitle a man to public reward, operate as a punishment?” In reply, Mason deprecated the thought. Can such men not be found outside Congress? Or, if Congressmen leave Congress for executive branch positions, are no good men available to replace them? “If we do not provide against corruption, our government will soon be at an end, nor would I wish to put a man of virtue in the way of temptation.”

Although he opposed Mason on the larger question of empowering the federal government, Hamilton sided with him here. “Our great error is that we suppose mankind more honest than they are.” But “our prevailing passions are ambition and interest.” Therefore, “when a member [of Congress] takes his seat, he should vacate every other office,” whether in the state or the federal government.

For his part, Madison disagreed with his future collaborator on The Federalist. Without the possibility of dual officeholding, he claimed, it will be hard to recruit qualified men for Congress. Further, disqualifying members won’t disqualify their cronies, so corruption will occur, anyway.

The majority of delegates found Mason and Hamilton persuasive. Article I, section 6 thus reads, “no Person holding any office under the United States, shall be a member of either House during his Continuance in Office.” To prevent legislators from creating new federal offices or raising the salaries of new ones and then quitting Congress to occupy one of them, “no Senator or Representative shall, during the Time for which he is elected,” be appointed to any such office (emphasis added).

But who shall appoint executive officeholders? If not the legislators or the president, and surely not the Supreme Court justices, then—who? Mason did not say. But his argument leaves only the states to perform this task. Mason had earlier argued that state legislatures’ election of U.S. Senators provided one means of self-defense for the states. In his mind, state legislative control of executive branch appointments might have been another, even as control of salaries had been, in the eyes of delegates who later joined him in becoming Anti-federalists. If so, the notion went nowhere, and the delegates eventually split the power between presidential appointment and Senatorial approval.

The argument over political corruption thus went well beyond the moral objection to corruption itself—ingrained in human nature, to be sure, but also susceptible to rational discipline and dilution. Corruption raised the overall question the delegates addressed, the question of the structure of the American regime. A republic, if you can keep it, Mr. Franklin famously said. But how to keep it? In shaping a government strong enough both to represent and to rule the people, to secure their unalienable rights and not to undercut them, the Framers sought to set down institutional barriers that would impede corruption, without pretending to remove it from the human heart.

Will Morrisey is Professor Emeritus of Politics at Hillsdale College, editor and publisher of Will Morrisey Reviews, an online book review publication.

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