A Senate of the States: June 1st – June 6th, 1787

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On the first and second days of June 1787, the Committee of the Whole grappled with the 7th Resolution of the Virginia Plan: “that a national Executive be instituted, to be chosen by the national Legislature-for the term of —— years &c to be ineligible thereafter, to possess the executive powers of Congress &c.” Along the way of debate on the executive, John Dickinson (DE) would segue into the composition of the second house of congress, the infant United States Senate.

The Framers’ starting point was the British monarchy. It could not be otherwise. While a chief executive armed with prerogatives from time out of mind history would never do in a representative federal republic, delegates sought to keep the appropriate powers of British monarchs, and dispose of those powers unsuited in republican government. Should the office consist of, as in Rome, multiple executives? What institution was to elect or appoint the man/men to this office? Was the national executive to simply serve as an administrator, an executor of the laws? Above all, the Framers sought to avoid what may, in time, be the “fetus of a monarchy,” meaning the denial of prerogative powers.

John Dickinson explained how the famous stability of the British government depended in large part on the “attachments which the Crown draws to itself, & not merely from the force of its prerogatives.” By ‘attachments’, Dickinson meant the king’s influence over legislation. Through the king’s power of appointments, he could offer noble titles, and profitable offices to members of Parliament. While recognized as a corruption of separation of powers banned under the US Constitution, the practice promoted a stability in legislation unknown in other European monarchies.

Republican forms must necessarily find stability through other means. He warned against consolidating all powers into one grand republic, for its fate could be read from the experience of history’s smaller republics. The Committee of the Whole had already approved a bicameral legislature, which lent stability to lawmaking. Instead of disbanding the states, as some members sought, Dickinson explained that sharing powers between the states and the new government would promote additional stability unknown in prior republics. He said, “If ancient republics have been found to flourish for a moment only & then vanish forever, it only proves that they were badly constituted; and that we ought to seek for every remedy for their diseases.”

On June 6th, we see building momentum for a balanced legislature to deal with the tension between democratic and republican principles. Elbridge Gerry (MA) didn’t think much of the people’s judgment, saying, “the people send rogues and criminals to represent them.” He proposed the people nominate a slate of representatives for appointment by the state legislatures. This, he said, would filter out the unfit. But, the foundation of an American republic must rest on the unfiltered views of the people, yet not so much as to threaten liberty with too much democracy. Not only was the election of one branch of the legislature by the people the first principle of free government, wrote Madison, but this popularly derived lower house stood to balance “too great an agency of the State Governments in the General one.” He reminded delegates of the unjust state laws due to excessive majoritarianism, too much democracy. An independent, non-democratic institution must check the otherwise inevitable oppression of minorities by the majority.

John Dickinson praised the English House of Lords. In his vision of a senate, state-appointed senators refined the will of the people. It left the states “considerable agency” in the new system. To correct the problem of too much state agency under the Articles of Confederation in which states often recalled delegates from congress, Dickinson suggested fixed senatorial terms of three, five, or seven years. This is an important distinction. As opposed to delegates with a strict agency relationship to their states, future senators served as representatives of states in the same way congressmen represented their constituents. Neither electors to the House of Reps nor the state legislatures would have the power of recall. Their only recourse for poor performance was replacement of the errant congressman or senator at the next election.

George Read of Delaware buttressed the general trend of the convention toward an entirely new government. The Confederation, he said, “was founded on temporary principles,” and could not be amended. Unless the convention designed a good government on new principles “we must either go to ruin, or have the work to do over again.”

Only a few days into the convention, delegates vented on the dangers of too much democracy in the states and too much federalism in congress. Excessive democracy inevitably leads to paper money, repudiation of debt, and excessive taxation of the minority. Unlimited federalism put individual state interests above the national interest.

However, if properly structured, a government balanced between democracy and federalism served to protect individual rights as well as the aggregate interests of the states. As the past 104 years illustrate, the 17th Amendment destroyed this all-important balance and rendered the US an unstable democratic republic in which individual and societal rights exist at the whim of distant and often untouchable masters in Washington, DC.

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