Writing as if he had an eye on 20th and 21st century America, Charles de Montesquieu in the mid-18th century wrote, “At the birth of societies, the rulers of republics establish institutions; and afterwards the institutions mold the rulers.”
The institution of the US Senate has indeed been transformed from the Framers’ intended structure and purposes determined at the federal convention of 1787. There, on May 31st, Governor Edmund Randolph of Virginia set forth the first purpose of a senate: to check “the turbulent follies of democracy.”
Consider for a moment the nation’s short history and the Framers’ recent experiences which gave rise to the senate’s purpose. Only eleven years earlier, thirteen colonies of a monarchal empire were suddenly set free. They formed republics. Given the long train of abuses from George III, these republics naturally restrained the power of the executive branch in favor of the legislative. As one would expect, the first legislative chambers were very democratic, and so much so that the unalienable rights expounded in the Declaration were often abused. Something had to be done to check the democratic element that threatened the Union. What structural designs in national institutions would best serve the ends of the people of the United States? Part of the answer was in the plan for the second house of the national legislature, the senate.
The final mode of election and composition of the Senate to achieve its ends, to reduce the follies of democracy, was no accident, and would take the next seven weeks to determine.
Mode of Election. The starting point for debate, the Virginia Plan, provided senatorial election by the House of Reps from men nominated by the state legislatures. Practical problems emerged with this method. Should the election consist of the House sitting in a committee of the whole, or perhaps by committees of state delegations? Ultimately, this mode of election was rejected primarily because the Senate would be too beholden to, and inadequately independent of, the turbulent House.
Other proposals alternately accepted, revised, rejected, and revised again include:
- Election by the people. Future associate Justice of the Supreme Court, James Wilson, proposed the nation be divided into a small number of large senatorial election districts that completely ignored state boundaries. He thought the aggregate people in large districts would be prone to elect the most reputable citizens. It would also eliminate the influence of state legislatures, whose reputation from the dissolving confederacy was not respected. In subsequent debate, both the practicality of conducing elections across state lines, as well as the doubtfulness of obtaining the best citizens as senators, sent Wilson’s proposal down to defeat.
- Election by the state legislatures. While this is the mode that was finally accepted, it endured criticism and hot debate along the way. Its first defect, according to James Wilson, was that the senate would be in perpetual conflict with the popularly derived House of Reps! Considering the purpose of the senate, this is of course, a fundamental strength of the Framers’ Constitution. Election by state legislatures improved the probability of Constitutional ratification. The states would likely reject the Constitution as too radical a departure from the confederacy if they were denied direct senatorial appointment.
Composition. The Virginia Plan didn’t address the size of the senate. When asked, Governor Randolph replied it should be small enough to be exempt from the passionate proceedings of large assemblies. The convention determined early on that if the senate was to conduct itself dispassionately, it must be independent of the democratic element.
On June 7th, John Dickenson proposed direct election by the state legislatures. Yet there was a problem here. If tiny Delaware was to appoint one senator, how many would the larger states send? From proportionality, eighty members would sit in the first senate, which would defeat small size as a necessary means to the purpose of the senate. In early July, the convention nearly dissolved over the issue of proportional vs. equality of state representation. The argument in favor of proportionality was powerful; in the legislature of a republic, shouldn’t both institutions be related to population?
Had the men of the convention in July 1787 remained mired in the same ideas they had just six weeks earlier, we’ll never know the subsequent, detrimental effect on western civilization. Fortunately, cool heads applied reason to the problem.
Political equality, the principle that equal numbers of men should receive equal representation, is certainly just. But, as applied to the desired ends of the senate, it is an inexpedient means; a numerous senate will experience the same vicious consequences of any large assembly. Since that which is vicious is also unjust, strict application of political equality to the senate is also unjust. To reconcile this dilemma required the Framers to formulate a unique solution. Assigning two senators from each state was a compromise; the large states accepted fewer senators than they would under strict political equality, but more than they did under the confederacy. Whereas the states in the confederacy were limited to a single vote regardless of the number of delegates sent by each state, the new senate featured two senators who could vote as their individual judgements directed. While doubled in size to twenty-six, the senate was still small, and would remain small as the nation expanded across a continent.
But what of the institutional stature of the new senate? America lacked a clubby aristocracy from which to select members. Instead, the Senate’s small size and longer term of office lent to exclusiveness, to prestige, which is a strong attraction to men of wealth and ability. Appointment by their peers in state legislatures lent an additional aristocratic feel as senators were set above the boisterous elections and pandering antics of congressmen. Seriousness, stability, and better judgement were expected from, and provided by, the Framers’ Senate.
Today. As anticipated and warned by Montesquieu, the Framers’ Senate no longer serves its part in support of the lofty goals enumerated in the Preamble of the Constitution. The institution dominates the individual senator, as the Senate’s size, term of office, institutional aura, and especially its source of appointment, no longer uplift its members to the Framers’ higher ends.
Conclusion. Whereas state legislatures previously served as the farm teams for senators, the typical source since the 17th Amendment has been state congressional delegations. These people take the norms and attitudes of the House of Reps to the Senate. With passage of over a hundred years, the senate has evolved into a horrid corruption of the Framers’ ideals. As long as the Senate is popularly derived, there is little hope for the restoration of free government.
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Eidelberg, P. (1968). The Philosophy of the American Constitution. Toronto, Ontario: Collier-Macmillan Canada, Ltd.