As of June 12th, the evolving senate still had no powers beyond those of the Confederation. Additional powers arrived after delegates determined its institutional shape and characteristics.
At issue was the senate’s relationship with the lower house and the executive branch. Governor Randolph reminded the committee “the democratic licentiousness of the state legislatures proved the necessity of a firm senate.” The best model was the senate of Maryland, which consisted of fifteen members appointed to five-year terms by an electoral college of two electors from each county and one each from the cities of Baltimore and Annapolis. Yet, even the independent MD senate was scarcely capable of withstanding the occasional popular torrent. Not only did the people’s house pose a threat to free government, but a firm senate will guard the Constitution against the machinations of a chief executive who combines with the demagogues of the popular branch.
James Madison (VA) sought a stability in the new government that was so lacking in the states. While seven-year terms promoted stability, he still feared the house would overwhelm the senate. Notwithstanding the MD senate, he lamented the lack of experience to guide them. On the positive side, the MD senate never threatened free government, and he remarked that it had the confidence of the “most enlightened and impartial people of the other States as well as of their own.”
Madison, in words overwhelmed by the 19th century Progressive movement and the 17th Amendment, warned against a popularly elected senate:
Indeed. The wonder is that any semblance of republican free government remains at all after 104 years of anti-10th Amendment judges condoned by popularly elected senators.
Seven-year senate terms passed 8-1.
The motion to deny salaries to senators fell 7-2. A salary from the new government, rather than the states, promoted an attachment sorely absent in the Confederation congress.
On June 13th, senatorial responsibilities emerged within the framework of proportional (by wealth or population), state legislature appointment of senators to seven-year terms. Charles Pinckney (SC) and Roger Sherman (CN) proposed congressional appointment of judges to a Supreme Court. With an eye on stability in government, Madison preferred to keep the typically ignorant representative he expected to populate the House, out of such deliberations. Leave judicial appointments, said Madison, to the more circumspect senate. His motion passed without opposition.
Elbridge Gerry (MA) motioned to deny the origination of money-bills to the senate. The House of Reps, being far closer to the people, “ought to hold the purse-strings.” Once again, an equivalence between the senate and the English House of Lords logically entered the debates. But, on further examination, Madison, Rufus King (MA), George Read (DE), and Charles Pinkney (SC), found little reason to keep capable men in the senate out of the important business of money-bills.
Pierce Butler (SC) scoffed at the analogy between the House of Lords and the evolving senate. In a senate degraded by “any such discriminations, the best men would be apt to decline serving in it in favor of the other branch. And it will lead the (house) into the practice of tacking other clauses to money bills.” What Butler meant, if appropriations from the house were unamendable by the senate, the House could attach non-money related articles to appropriations. If allowed, this oversight could render Congress a de-facto one chamber democratic legislature.
The Committee of the Whole voted unanimously against Gerry’s motion.
Features of the senate in the developing Constitution:
• Senators appointed by state legislatures to seven-year terms.
• Each state was entitled to a proportional, by population, number of senators.
• Senators’ minimum age of thirty years.
• Salaries paid by the US Treasury.
• Sitting senators may not hold executive branch or state-level offices, nor may ex-senators hold a federal office until the lapse of one year.
• Each branch may originate Acts.
• The new congress shall have the legislative powers of the confederation congress.
• Congress may veto state laws, and legislate in all cases to which the states are incompetent
• The senate is responsible for appointments to the national judiciary.
Given the tenor of the times, in which many held the states responsible for the dire circumstances of the Union, it is understandable that men experienced in government from one end of the nation to the other would start off with a draft plan openly hostile to state authority.
In a nod to the sovereign capacity of the people, delegates kept the resolutions which provided for the ratification of these amendments to the Articles of Confederation AND for future modifications to the Constitution:
• Resolved that the amendments which shall be offered to the Confederation by the Convention ought at a proper time or times after the approbation of Congress to be submitted to an Assembly or Assemblies recommended by the several Legislatures to be expressly chosen by the people to consider and decide thereon.
• Resolved that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary.
A unique American republican form, which blended democratic and federal elements, slowly took shape. The new federal senate would retain enough features of the confederation congress to remain sufficiently familiar, and therefore acceptable to ratifying conventions, yet the Framers hardly get the credit they deserve for correcting the shortcomings of the Articles of Confederation.
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.