Timothy N. Baldwin, JD.
January 21, 2014
The Founders used the lesser-evil principle (also called, greater good) to create the Constitution. The proof of their using this principle is undeniable. It is interwoven throughout the Constitutional Convention Debates and Federalist Papers—the two most relevant documents regarding the Constitution’s creation and ratification.
People who reject this principle reject the Founders’ teaching (and as will be discussed in the next article, much more than that), while ironically claiming that they are trying to restore the Founders’ teachings. In reality, these people have little desire to think the way the Founders thought. They have a mystical illusion of 1787 and reject the science the Founders used in politics.
But the Founders saw no fairytales or mystics in politics. They rejected the “fallacy and extravagance of those idle theories which have amused us with promises of an exemption from the imperfections, weaknesses and evils incident to society in every shape” (Alexander Hamilton, Federalist Paper 6). No such governmentor situation exists—personally or politically.Life—and that means politics—is filled with seeming contradictions, inconveniences, imperfections, and evils.
This reality may be disappointing and uninspiring for some people but only if they are looking for hype to drive their actions instead of true knowledge. They look for signs of miraculous deliverance instead of applying correct reason. They are, in a sense, political mystics.
The Founders knew there was no such thing as a “golden age” (FP 6) of human existence. Despite the claims that today’s Americans are mostly fools and 1787 Americans were mostly wise, this is not true. The Founders saw their generation as susceptible to error as any other generation (see e.g., “Political Change and Destination Are Not the Same”).
In fact, the Founders presumed that the evils of human nature were prevalent in society as well as government. Hamilton said, “it is as fair to presume [the abuses of power] on the part of the State governments as on the part of the general government” (FP 59.) On this presumption, they “adopt[ed] as a practical maxim for the direction of [America’s] political conduct that we…are yet remote from the happy empire of perfect wisdom and perfect virtue” (FP 6).
Human experience guiding their analysis, the Founders knew that for a system of government to work properly, it had to account for human nature. One of the fundamental truths the Founders accepted was that human existence comprised largely of making lesser-evil choices; and they framed constitutional provisions that reflected this reality.
The following are small samples of their using the lesser-evil principle in framing the Constitution.
A. On Whether the States Should Transfer Any Further Powers to the Federal Government
Some argued in 1787 that no more powers should be transferred to the federal government. They feared that once the power was transferred, the federal government would abuse it as a rule and the States would be trampled. Many of these people were very eloquent in speech and persuasion.
James Madison, the chief contributor to the Constitution, had to rebuff these arguments if the Constitution were to have a chance of ratification. So, he explained the fundamental grounds of transferring power to the federal government, which had to be convincing if it was to persuade nine of thirteen states to ratify.
Madison more than answered their questions. He sharply criticized their fear-monger tactics and focused their attention on the lesser-evil principle. He said,
This method of handling the subject cannot impose on the good sense of the people of America. It may display the subtlety of the writer; it may open a boundless field for rhetoric and declamation; it may inflame the passions of the unthinking, and may confirm the prejudices of the misthinking:
but cool and candid people will at once reflect, that the purest of human blessings must have a portion of alloy in them; that the choice must always be made, if not of the lesser evil, at least of the GREATER, not the PERFECT, good (FP 41).
Madison exhorted Americans to reject the hype of opposition and political rhetoric. He urged Americans not to become the dupes of pretended patriots who were not contributing to a working system of federal government but only speculating and complaining about potential abuses.
To do this, Madison invoked the lesser-evil principle. He used the common sense that America should not suffer the greater evils of the Articles of Confederation but accept the lesser evils of the Constitution. America accepted this principle and ratified the Constitution with not one State refusing.
B. On Whether (1) the State Legislature Should Elect the U.S. Senators and (2) the States Should Elect U.S. Senators
Hamilton handled opponents to the Constitution in similar fashion.
On whether Congress should be able to regulate the election of its own members, there were a considerable number of people who opposed this congressional power. Some (even those who generally favored the Constitution) saw it as a tool of tyranny to use against the States.
Hamilton noted that there were only three options of where to place this power: (1) wholly in Congress, (2) wholly in the States, or (3) primarily in the States but ultimately in Congress. Explaining the viability of each option, Hamilton showed why (2) and (3) must be rejected and why Congress should have the “exclusive power of regulating elections for the national government” (FP 59).
Madison explained that every government must have the power of self-preservation even if the power could be abused. This was the choice of lesser evils because otherwise, the States would have the power destroy the national government, which was why they sought to create the Constitution in the first place (i.e. the greater evil).
Some people evidently questioned Hamilton on his rationale and rebutted, using the tool of analogy and correlation. They stated, “Well, the State legislatures could destroy the national government by not sending Senators to Congress, so why not give the States the power to regulate the federal elections as well?”
Their simple analogy was seemingly right, so Hamilton had to distinguish and justify the States’ power to elect the U.S. Senators, thus having the potential power to destroy the national government on that front. Hamilton justified the States’ power to elect the U.S. Senators by, once again,invoking the lesser-evil principle. He said,
[I]t is an evil which could not have been avoided without excluding the States, in their political capacities, wholly from a place in the organization of the national government. If this had been done, it would doubtless have been interpreted into an entire dereliction of the federal principle; and would certainly have deprived the State governments of that absolute safeguard which they will enjoy under this provision.
But however wise it may have been to have submitted in this instance to an inconvenience, for the attainment of a necessary advantage or a greater good, no inference can be drawn from thence to favor an accumulation of the evil, where no necessity urges, nor any greater good invites (FP 59).
Not only did Hamilton justify placing power in Congress to regulate its own elections by using the lesser-evil principle, he also justified the States’ election power on the same principle.
C. On How the States and People Should Be Represented in Congress
These were not the only major issues that were resolved using the lesser-evil principle. As many know, the large states opposed the small states having equal representation in Congress; they believed their power would be undermined by the small states having an equal vote, a violation of the democratic rule-by-majority principle. The small states believed the opposite; they believed that the large states would dominate national politics using a proportional method of representation, a violation of the federal one-vote-per-state principle. Each side presented “evils” they vehemently opposed.
Knowing this contention could destroy any chances of the Constitution’s ratification, Madison urged the States to ratify the proposed constitution using the lesser-evil principle. Madison explained that the Constitution compromised on both evils. The House would be a body based on proportional representation (the larger states having more representatives than the smaller states); and the Senate body would be based on equal representation (each state had 2 senators with one vote). Madison said,
The advice of prudence must be to embrace the lesser evil; and, instead of indulging a fruitless anticipation of the possible mischiefs which may ensue, to contemplate rather the advantageous consequences which may qualify the sacrifice (FP 62).
Today, the large states suffer evils in the Senate and the small states suffer evils in the House. It may be an evil in some respects but it is the greater good.
Clearly, the Founders and 1787 Americans accepted and used the principle of choosing the lesser evil when no other viable options existed and the necessity of the situation required a choice—not just any choice, but a rational choice. So, if using the lesser-evil principle applies when forming a constitution and system of government, how can the principle be invalid altogether relative to other political decisions? It would be a strange maxim indeed to say that we can use the lesser-evil principle regarding the greater (i.e. creating government) but cannot use the principle regarding the lesser (i.e. voting, etc.).
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Furthermore, if the Constitution is in fact a perfect, or as near perfect a system of government as some conservatives say, it proves, by necessity, that using the lesser-evil principle is valid and must be used to prevent the greater evils that would follow had we not chosen the lesser evil. In short, the lesser-evil principle creates a duty on us to prevent greater evils.
My next article will explain the nature and origins of the lesser-evil principle, which creates the duty, and why people who claim that the lesser-evil principle is to be rejected are wrong.
© 2014 Timothy N. Baldwin, JD - All Rights Reserved
Timothy Baldwin, born in 1979, is an attorney licensed to practice law in Montana (and formerly Florida) and handles a variety of cases, including constitutional, criminal, and civil. Baldwin graduated from the University of West Florida in 2001 with a Bachelor of Arts (BA) degree in English and Political Science. In 2004, Baldwin graduated from Cumberland School of Law at Samford University in Birmingham, AL with a Juris Doctorate (JD) degree. From there, Baldwin became an Assistant State Attorney in Florida. For 2 1/2 years, Baldwin prosecuted criminal actions and tried nearly 60 jury trials. In 2006, Baldwin started his private law practice and has maintained it since.
Baldwin is a published author, public speaker and student of political philosophy. Baldwin is the author of Freedom For A Change, Romans 13-The True Meaning of Submission, and To Keep or Not To Keep: Why Christians Should Not Give Up Their Guns–all of which are available for purchase through libertydefenseleague.com. Baldwin has also authored hundreds of political articles relative to liberty in the United States of America. Baldwin has been the guest of scores of radio shows and public events and continues to exposit principles which the people in America will need to determine its direction for the future.
Web site: libertydefenseleague.com