As John Locke related in his Two Treatises of Government, the legislative power is the essence of republicanism. Despite the lessons of the great Enlightenment philosophers and the Framers’ long experience in colonial and free republican affairs, they experienced much difficulty in designing a suitable, stable, effective legislature for a young and growing society. 1
Yesterday’s grand committee met to address the basis of representation in the legislature. What compromise could overcome large state objections to parity among the states in the senate? Recall that large states feared small state dominance over taxation, and that the small would disproportionately burden the large.
To placate large state concerns over taxation and appropriations, yet meet the small state demand of equal representation in the senate, the committee recommended proportional representation, one per 40,000 in the House of Representatives, and that the house originate all money bills, unamendable by the senate, on which the senate could only vote up or down. Furthermore, it endorsed equal representation among the states in the senate.
A cool reception awaited the committee report on July 5th. Large state delegates James Madison (VA) and Gouverneur Morris (PA) were willing to risk breakup of the convention over state representation in the senate. While Madison objected to equality on the basis of equal justice for each and every American, the aristocratic Morris prophesied that the small states, through reason or violence would eventually join the union on the terms of the large states. If reason was insufficient, he painted a gruesome picture of conquest, foreign intrigue and executions if the new government admitted the known virus of a federal body of states once again.
While South Carolina was not a large state, it was, per capita, quite wealthy, and its delegation often fell in with the large state bloc. Pierce Butler (SC) didn’t view the appropriations clause as any concession at all, because of the ease of coordination between small state advocates in the house and senate.
July 6th, in convention. The happiness of millions depended on how the delegates fit the pieces not only of the legislative power puzzle, but the legislative effect of admitting new, and initially, poor states into the union. Should they have equal standing in the house and senate? Several delegates were uneasy at the likely loss of their state’s influence as their populations emigrated to newly opened lands north of the Ohio River. Large states were apprehensive of a section of the just-passed Northwest Ordinance by the confederation congress which allowed the formation of up to five new states when the population of a territory reached that of the smallest existing state, Delaware, at only 40,000 souls. Mighty Virginia and Pennsylvania should yield to even more senators from tiny jurisdictions?
These were the undercurrents which carried over into the debate on the legislative power.
Get the legislative power wrong, and the whole effort was a waste of time. The world waited in anticipation. Were free men capable of organizing a republican government for the ages, or were men better off under monarchy, and the divine right of Kings?
While consent of the governed was their pole-star, few delegates trusted an expansive democratic element. Why should the vote of a vagabond carry equal weight with a man of wealth? Shouldn’t the wealth of a state influence the level of congressional representation? In response, the convention sent a portion of the first clause of the 7th Resolution to a committee for reconsideration. At issue was the “one member for each 40,000 inhabitants,” with a view to make the ratio flexible according to the wealth of the various states. Six weeks into the convention, and delegates had not settled on the foundation of representation in the House of Representatives. Will it be according to population or wealth or both?
So interconnected was the nature of representation in each house of congress, the convention postponed debate on the matter until the committee submitted its report.
Instead, delegates discussed and approved of the clause that lodged the responsibility for money bill origination in the house, whose appropriations were unalterable by the senate. This was no minor concession by the small states; it admitted large state control over spending and taxation and was the bait for equal representation in the senate.
July 7th in convention. The motion, “Shall the clause allowing each state one vote in the second branch, stand as part of the Report?” passed 6-3-2. Connecticut, New York, New Jersey, Delaware, Maryland, North Carolina, aye-6; Pennsylvania, Virginia, South Carolina, no-3; Massachusetts, Georgia, divided.
Perhaps Roger Sherman had an eye on ratification when he observed, “There will be more vigor in the congress with an equal state franchise in the senate. In national decisions it would serve well to have not only a majority of the people, but a majority of the states agree as well. If they are not given fair representation, there will be resistance to national directives.”
Two states changed their stance from the July 2nd vote. Massachusetts went from “no” to “divided” and North Carolina reversed “no” to “yes.” The tide had turned in favor of the small and north/eastern states.
Gouverneur Morris (PA) was nothing if not persistent. Yes, the house of reps will protect the people, as the senate will protect the states, what about the interests of the whole, of the nation? Recall that Morris advocated a senate of life-term aristocrats on the British House of Lords model. He believed the purpose of the senate was to check the people from injuring the states, and that state parity meant just another impotent congress. The single reason states were afforded equal representation in the confederation congress was the difficulty of the times; small states extorted this concession from the large. Their people were afforded greater rights than others. Why repeat a recognized mistake? A flustered and frustrated Morris asked, “What if all the charters & constitutions of the states were thrown into the fire, and all their demagogues into the ocean. What would it be to the happiness of America?”
The convention spent the next two sessions (July 9th and 10th) in something of a series of cage-fights as delegates argued the relative level of each state’s representation in the House of Representatives. If based on population alone, a regular census was sufficient to establish the number of members from each state. But what of wealth? As opposed to counting noses in a census, was it even practical to determine the wealth of each state?
The historian C.D. Bowen, in her Miracle at Philadelphia cited Luther Martin (MD), “We were on the verge of dissolution, scarce held together by the strength of a hair, though the public papers were announcing our extreme unanimity.” A visiting French Officer who served General Washington, described his look as reminding him of its expression during the terrible months at Valley Forge. George Washington wrote, “I almost despair of seeing a favorable issue to the proceedings of the convention, and do therefore repent having had any agency in the business.”
As today’s patriots contemplate the sorry condition of the American Republic, it is worthwhile to remember and learn from the challenges which our Framers faced and overcame. Either fix the union or deal with dissolution, war, and the derision of history. Thanks to their efforts, our task today is much simpler. Their structural design of the legislative power admitted the component members of the republic, the people and the states. There is no getting around this necessity, for state participation in congress is the sine qua non of America’s legislative essence.
1. Locke, J. (2010). Two Treatises of Government, Edited by Peter Laslett. Cambridge: University Press. The legislative is the essence and union of society consisting in one WILL. The constitution of the legislative is the first and fundamental act of society, whereby provision is made for the continuation of their union under the direction of persons authorized by the consent and appointment of the people. p. 407.
General Reference: Madison, J. (1966). Notes of Debates in the Federal Convention of 1787. Chicago: Ohio University Press.