A Senate of the States: July 14th, 1787

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As of this Saturday in mid-July, the familiar enumeration of specific powers in Article I § 8 and prohibitions in Sections 9 & 10 didn’t exist. Delegates had agreed to a single executive, a judiciary, a House of Representatives proportioned by population, and little else. From Madison’s notes it appears that most delegates assumed the new government would act only on the people, and not the states. Without knowing if the new government was to act on just the people (a national government) or the people plus the states (mixed national and federal), today’s proceedings were somewhat murky and confusing as delegates could not quite settle their minds around the idea of concurrent governments, that of the preexisting states together with the new government.

Indeed, Imperium et Imperio, the question of a state within a state, was the source of vexing problems which led to the American Revolution and afflicts the United States today. Only fourteen years before the convention, Massachusetts Lieutenant Governor Thomas Hutchinson told the General Court, “I know of no line than can be drawn between the supreme authority of Parliament and the total independence of the colonies; it is impossible there should be two independent legislatures in one and the same state. The consequence is, either that the colonies are the vassals of the Parliament, or that they are totally independent.” In 1775, Alexander Hamilton similarly wrote, “Two legislatures in the same state, cannot be supposed, without falling into that solecism, in politics, of imperium et imperio.”

The widely accepted impossibility of a lasting state-within-a-state republic was perhaps the Anti-Federalists’ best bludgeon against ratification of the Constitution. Ultimately, the decision to design either a national or compound national/federal system in which each government was supreme in its sphere of authority was central to the task of the convention: secure the common defense, liberty, and general welfare of the union.1

So, wrapped up within the question of proportionality or parity in the senate, was the corollary question of concurrent authority over the people. Even James Madison, author of the Virginia Plan did not, at this point in the convention, support two categories of government, each of which would act directly on the individual members of society.2

Rufus King (MA) asked, since the new government lacked authority over the states as states, why bother with a senate of the states, proportionally or equally represented, at all? He described the government as national. It will act on the people, not the states. It will not be federal. Now, from experience, conventioneers knew that a second house, independent of the people, was absolutely necessary to quell the expected popular storms from the House of Representatives. But, since the states were largely blamed for a dissolving Articles of Confederation, why introduce old problems into a new government?

Proponents of state parity in the senate offered two reasons. 1. From the terms of the existing Articles of Confederation. 2. From an assumed danger to the smaller states.

1. Equal state suffrage under the Articles was due to congressionally imposed direct taxation on the states. Land value was the basis; in theory, states collected taxes and remitted them to congress. Except, they rarely did so. Delegates assumed indirect, rather than direct, taxes under the new system, such as imposts and excises which eliminated the need for state representation. With this new tax authority, the national government could assume state revolutionary war debts. This issue played a large role in state conventions leading to ratification. By assuming the states’ war debt, which could not be done under the Articles of Confederation, the states could repeal onerous local real estate and other taxes.

2. Under a national government acting on the people, why should the small states fear the large? Reason demanded that the second house of congress, like the first, proportionally represent the people.

Mr. King said his state would never accept equal state suffrage in the senate. No government could last on the basis of unjust principles. He preferred the confederation to accepting a Constitution with equal state suffrage.

James Wilson (PA) regarded state parity as a violation of the “essential principles of justice.”

Luther Martin’s (MD) comments reflected the high temperature of the convention. Equality among the states was essential. He would rather split America into two confederacies than submit to large state dominance.

King offered as a compromise, a third legislative branch, which would protect state interests by representing the states as states. He claimed that NY (whose delegates were absent) opposed an impost amendment to the Articles of Confederation because of equal state suffrage in Congress.

Elbridge Gerry (MA) did not wish to change the equality of senate votes, but offered per capita voting instead. For instance, two senators per state voting individually and not as one voice for their state would prevent the delays and inconveniences experienced in the confederation congress.

Charles Pinckney (SC) offered another compromise. It was a middle ground between equality of states and full proportional representation as in the House. A couple of scholars believe that if Pinckney’s idea had been put about two weeks earlier, we could have a senate today where the largest population states have five senators, scaling down to the smallest with one. So, with each census both houses of congress would experience reapportionment. James Madison (VA) supported this compromise.

Caleb Strong (MA) summarized the senate debate. Confederation congresses were at an end. Absent accommodation, the Union was gone. He thought the concession on money bills was adequate and would support the whole committee report, meaning state parity.

James Madison (VA) repeated his analysis that only proportional senate representation was a sound basis for the government. The confederation’s foundation was unsound; its effect was a collection of states which promptly ignored much of what their delegates in congress ratified.

Madison reminded the convention of William Patterson’s (NJ) speech on representation. In it, he said the only reason for representatives was because the people could not possibly meet to decide issues themselves. Why should this principle of representation not apply to both legislative houses? In the confederation, the states were represented because the government acted on the states. There was no reason for state representation when the government did not act on the states. He found no ground for compromise. Experience under the Articles proved the government had no coercive power over the states. In all cases where the general government is to act on the people, let the people be represented and the votes be proportional. In all cases where the government. is to act on the states as such, in like manner as congress now acts on them, let the states be equal. This was the true ground of compromise if there was any ground at all. But he denied that there was any ground.

There were other problems with equal state suffrage in the senate. A majority of small state senators could deny the will of the majority of the people. They could extort measures. And finally, it would give the northern states a permanent majority. Slave and non-slave states, said Madison, were the two emerging interests, not large and small.

James Wilson (PA) would support the compromise if the error (unequal regional representation) could eventually correct itself. Since it will not, he will not. Comparing it to a virus at inception, sickness and early death were certain. No one disputed the justice of proportional representation. He disputed the necessity of equal suffrage to small state survival.

“The great fault,” said Wilson, “of the Confederacy is its inactivity.” Congress could do very little. A senate as proposed will burden the new government as it did the old. Small states could carry nothing but block everything. This was no way to do their duty, to correct confederation deficiencies. He knew of respectable men who supported three confederacies.

Judge Oliver Ellsworth (CN) asked Mr. Wilson if he ever saw a good measure fail to achieve a majority in Congress. He could not think of one. To Mr. Madison, he queried if a negative on bills by a majority of the lesser states was more dangerous than the veto power to be given to the Executive.

Roger Sherman (CN) expected some quota/requisition powers to be granted, along with the means to collect them. An army of armed tax collectors to collect goods by force was not a good idea.

The motion to seek a middle ground of Senatorial representation as sought by Mr. Pinckney, failed 6-4.

Adjourned.

Once again, a Sunday intervened and allowed tempers to cool. Monday the 16th of July will be a momentous day.

Related: Article V and the Question of Sovereignty

1. Wood, G. S. (1969). The Creation of the American Republic 1776-1787. Chapel Hill: The University of North Carolina Press. 344, 352.
2. Banning, L. (1995). The Sacred Fire of Liberty – James Madison and the Founding of the Federal Republic. Ithaca, New York: Cornell University Press. 154.
General Reference: Madison, J. (1966). Notes of Debates in the Federal Convention of 1787. Chicago: Ohio University Press.