A Senate of the States: May 25th – May 31st, 1787

In this series I will relate the debates at the Federal Convention surrounding the structure and responsibilities of the US Senate. We’ll find that the Framers assigned the new government its functions, beyond those of the Confederation Congress, after the convention determined the mode of senatorial elections, and the number of senators per state. Like pieces in a jigsaw puzzle, the structure and powers of the various pieces of government shaped, and were shaped by, the checks and balances between the three branches and the states. The shape of each piece influenced the shape of adjacent pieces. The pulling of one piece, or the re-shaping of one without adjusting the shape of others destroys the continuity, the fabric of the of the entire puzzle. A popularly elected senate doesn’t ‘fit in’ among adjacent pieces of a work designed around state-appointed senators. Through the vehicle of the Framers’ debates, I hope to convince more Article V opponents why the 17th Amendment must go.

On May 25th, delegates unanimously elected George Washington as president of the convention. He hoped his inexperience in such matters would do no harm, and he asked for the “indulgence of the House towards the involuntary errors which his inexperience might occasion.”

The Secretary read the delegates’ credentials aloud. Delaware was the only state that James Madison singled out in his notes. Their commissions prevented them from changing the Article in the Confederation which established equality of votes among the states. This issue, of proportional representation v. equality of state suffrage in the senate, lingered on into July.

May 28th. In a private note to himself, Madison related the large v. small state divide and the large states disgust with the conduct of some small states under the Articles of Confederation. In a gathering of large state delegates before the convention met, Gouverneur Morris of PA advocated “that the large States should unite in firmly refusing to the small states an equal vote, as unreasonable, and as enabling the small States to negative every good system of Government, which must in the nature of things, be founded on a violation of that equality.” What he referred to was Rhode Island’s twice refusal in the 1780s to ratify a limited impost authority to congress. Of course, Morris’ proposal went nowhere. The convention remained federal, one vote per state regardless of population or wealth. Still, we’ll find that the issue of federal v. proportional representation didn’t go away. As applied to the senate, the large v. small state battle almost wrecked the convention.

The business of the convention opened on May 29th. Since Virginia called for the meeting (not congress), Governor Randolph believed his state should present a model framework of government. He commented on the difficulty of the crisis and the necessity of preventing the fulfilment of the prophecies of the American downfall. He observed that in revising the federal system, delegates should inquire
into . . .

1. The properties which such a government ought to have.
2. The defects of the confederation.
3. The danger of the situation.
4. The remedy.

I bring this up to contrast the single-minded purpose of the federal convention with today’s un-federal senate. Perhaps it is not appropriate to compare the two institutions, but like the convention, the United States senate was designed for cool discourse and reason, both of which are absent today.

Randolph’s Virginia plan proposed a bicameral legislature with rights of suffrage in both houses proportional to state wealth or population. A popularly elected Lower House elected members to the Upper House. This new congress held an absolute veto over all state acts. The 13th Article of the Virginia Plan recommended a provision for future amendments to the improved Articles of Union, in which congressional approval was unnecessary. This emerged some months later as the second method of constitutional amendments in Article V.

Right out of the starting gate, some of the best minds of the age, those of the Virginia delegation, proposed new Articles of Union. We can see the hostility these men had for the excesses of state government. Absent little Delaware’s intransigence over state equality, we’ll never know if the convention would have retained the federal quality, of equality of state suffrage in the senate. But one thing is certain; at the open of the convention the states were not welcomed in the Virginia Plan of an improved government.

Not only were some delegates hostile to state participation in the new government, others were averse to participation by representatives the people! On May 31st, the Committee of the Whole took up Governor Randolph’s 4th Resolution: “that the members of the first branch of the National Legislature ought to be elected by the people of the several States.”

Without direct reference to Shays’ Rebellion, Roger Sherman (CN), Elbridge Gerry (MA) and Pierce Butler (SC) cautioned on the dangers of too much democracy. They didn’t believe the people-at-large lacked sufficient virtue, but recent events showed the people were often made “dupes of pretended patriots.” Gerry admitted to previously being too republican. While he remained republican, experience taught him the dangers of the levelling spirit. Sherman was blunt; “The people should have as little to do as may be about the government. They want (lack sufficient) information and are constantly liable to be misled.” Let the state legislatures appoint members to the lower house of congress.

George Mason (VA), James Wilson (PA), and James Madison (VA) disagreed. Despite the dangers of democracy, the government required the confidence of the people. Wilson wanted to raise “the federal pyramid to a considerable altitude, and for that reason (he) wished to give it as broad a basis as possible.” The problems associated with opposition to congressional resolves under the Articles of Confederation, said Wilson, were not the fault of the people, but were due to the obstinacy of members of the state legislatures.

Madison advocated “successive filtrations” for the second house of the new congress, as well as the executive and judicial branches, but if the delegates were to create a great fabric of government, it must rest on a “solid foundation of the people themselves.” The Framers’ difficulties in establishing the structure of the first house of congress illustrate the wide divergence of opinion in the nature of representative republics and the extent of trust any republic should place in the people.

Popular election to the first house of a new congress carried by a 6-2 vote, with NJ and SC voting in the negative.

The Committee next proceeded to Resolution 5, “that the second, [or senatorial] branch of the National Legislature ought to be chosen by the first branch out of persons nominated by the State Legislatures.”

Richard Spaight of North Carolina proposed direct senatorial election by state legislatures. Others thought the convention was getting ahead of itself. Pierce Butler asked Governor Randolph to elaborate his thoughts on the powers of the new government and the states’ place in it.

At this early point in the convention, Governor Randolph’s view of the senate was far from complete. It should, he thought, be much smaller than the Lower House, to avoid the tumults associated with large assemblies. He asked the delegates to not lose sight of their purpose, which was to cure the evils under which the United States labored. He traced the source of the turbulence and follies of the day to an excess of democracy. The best check was a well-designed senate.

Ensuing debate swirled around election by state legislators or the people themselves, as well as equal or proportional representation. The committee of the whole did not come to terms with Resolution 5 today. James Madison wrote, “So the clause was disagreed to and a chasm (was) left in this part of the plan.”

While perhaps difficult to imagine today, fitting the myriad pieces of our beloved Constitution was not a smooth process. Yet, we can see in these first few days a prudent approach. The Framers didn’t dwell on contentious issues; they glanced off the difficult Resolutions and went on to the next. Since most resolutions affected other resolutions, the convention necessarily revisited previously settled questions. We’ll soon find that the powers assigned to the senate depended in part on the mode of senatorial election.

We are the many; our oppressors are the few. Government is the playground of politicians, but the Constitution is ours. Be proactive. Restore the American Tradition. Join Convention of States.

Reference: Madison, J. (1966). Notes of Debates in the Federal Convention of 1787. Chicago: Ohio University Press.

Leave a Reply