Elections in the Bicameral Congress

[Chapter 14 of Rothbard’s newly edited and released Conceived in Liberty, vol. 5, The New Republic: 1784–1791.]

The nationalists who went into the convention agreed on certain broad objectives, crucial for a new government, all designed to remodel the United States into a country with the British political structure. They had the ultimate advantage of any group that knows what it wants in advance of a convention. First, there must be an overriding sovereign government with independent power to tax, regulate, and coerce states and individuals. Second, an independent and oligarchical executive administration and upper legislative house must be created and elevated to weaken the democratic and representative lower legislative house. There would, however, be vigorous discussion on the nature of representation in the bicameral Congress—would it be proportional to population or based on equality of voting, and would slaves be included? It was on these issues that voting would be bitterly debated among the nationalists, between large and small states and North and South.

When the Constitutional Convention opened on May 25, 1787, its first act was a foregone conclusion: unanimous selection of George Washington as its presiding officer; it was all too symbolic that Robert Morris was the man to make the nomination. Next came the adoption of voting rules for the convention. The Pennsylvanians had the presumption to urge voting by population, but Virginia, fearing hostility from the small states, vetoed the move, and voting was established as in the Congress: one vote per state and voting by majority of states, a simple majority resolving all issues. Another rule made all votes taken to be permanent, subject to reopening later in the convention. Particularly important was the decision, now and afterward, to hold the entire convention in strictest secrecy in order to make sure that the public would not know what was going on until the convention presented its conclusions as a fait accompli. Here was a perfect setting for the pursuance of the nationalist design. This secrecy rule, proposed by Pierce Butler of South Carolina, was to be demonized by Thomas Jefferson as “abominable.”

The Virginia delegation arrived early and hammered out a common program. On May 29, Virginia opened proceedings with Governor Edmund Randolph presenting its revolutionary resolutions to the convention, which were written largely by James Madison. Randolph, who had been quickly influenced by Madison on the deficiencies of the Articles, made clear that the Virginia Plan was directed “against” democracy. Randolph conceded, wrote Robert Yates of New York in alarm, that the proposal was “not intended for a federal government—he meant a strong consolidated union, in which the idea of states should be nearly annihilated.” Specifically, the Virginians recommended:

1.  Voting in the national legislature to be proportionate to tax revenue or population, rather than by equality of states.

2.  Two branches of the national legislature, the lower house to be selected by the people of each state, not by the state legislatures.

3.  Election of the smaller upper house for long terms by the lower house out of persons nominated by the state legislatures.

4.  Congress to be empowered “to legislate in all cases to which the separate States are incompetent,” the ramifications to be presumably decided by Congress, and Congress to have veto power over all state laws which it considered to be inimical to the Confederation, and to force the states to obey. Thus the rule of the state legislatures were to be enormously reduced to being a pool for nominations for the national upper house.

5.  Establishment of a national executive to be chosen by the Congress, its salary to be fixed and chosen by Congress, and the executive to be limited to a single term.

6.  A national judiciary of supreme and inferior courts, and with supreme jurisdiction for interstate cases.

7.  The creation of a Council of Revision composed of the executive and some of the national judiciary to examine every act of the legislature and to exert a veto power over it, which could be overridden.

8.  Finally, this government would be submitted by the old Congress, not to state legislatures as under the Articles, but to special state conventions chosen by the people for this purpose.

In the course of clarification of their resolutions, it quickly became clear that the Virginians had wanted not a “merely federal” union, but a “national government … consisting of a supreme judicial, legislative, and executive.” In short, the Virginians meant political revolution rather than reform of the Articles of Confederation. Gouverneur Morris further clarified the nationalist view: the old federal government was “a mere compact resting on the good faith of the parties” while the new national government was to have “a compleat and compulsive operation.” It was these revelations that made Charles Cotesworth Pinckney of South Carolina and Elbridge Gerry of Massachusetts grow restive. This was illegal, revolutionary, and violated the express instructions of Congress and some states to confine themselves to revising the Articles. Pinckney expatiated that the convention should really be at an end, while Gerry called on the delegates to create a “federal” rather than “national” legislature, executive, and judiciary. But the convention ignored the protests and fatefully resolved that “a national government ought to be established consisting of a supreme legislative, judiciary, and executive.” This critical resolution, moved by Pierce Butler of South Carolina, passed by 6-1-1 (Yes: Massachusetts, Pennsylvania, Delaware, Virginia, North Carolina, and South Carolina; No: Connecticut; Divided: New York between Hamilton for and Yates against).1 The Virginia Plan then went into the Committee of the Whole and the convention spent the next two weeks debating it. This was in itself a benefit for the nationalists because they were able to get from the beginning the frame of reference for the convention’s debates.

One crucial debate concerned Virginia’s demand over proportional representation in Congress (either by population or by contributions of revenue) and the issue of election of congressmen by popular vote. Here had been one of the critical debates in writing the Articles of Confederation a decade before. There were, in fact, two main reasons for the nationalist emphasis on these issues. One was the desire of the populous states to dominate the new government by ensuring that there would be no equality of states’ voting. In particular Virginia, Pennsylvania, and Massachusetts were anxious to get this dominance as they were the largest states, with nearly half of the American population between them. James Madison of Virginia and James Wilson and Gouverneur Morris of Pennsylvania led the drive for proportional representation. In contrast, the small states, even the most nationalist of them, were bitter from the start; George Read, a conservative from Delaware, even threatened to lead Delaware out of the convention if the large states insisted on this plan since the state had instructed their delegates not to change “the rule of suffrage.” Under the Delaware threat, the convention agreed to postpone the explosive question of proportional representation in Congress.

But there was another, subtler reason for this nationalist clause—a reason which has again been foreshadowed in the original debates over the Articles. This was the demagogic, supposedly democratic, opportunism by the anti-democrats to use popular election of the large house to destroy the power of the state legislatures, which were severely hated by the nationalists as being overly democratic and inimical to a powerful central government. Thus, democracy could be thwarted with this seemingly democratic solution. This clause of popular election of the lower house of Congress was opposed from two directions: by those critical of national government, and by anti-democrats, often the same people who didn’t understand the intricacies and subtleties of the nationalist machinations. Thus, on the one hand, Roger Sherman of Connecticut demanded continued election of the lower house by the state legislatures. Otherwise, state governments would be critically weakened by the national government. On the other hand, Sherman, the South Carolinians, and Elbridge Gerry, frankly frightened by the Shaysite Rebellion, warned of the evils of popular election in Congress. 

The idea of direct popular election of Congress was defended by George Mason, a liberal who didn’t grasp the nationalist designs. Answering Gerry and Sherman, Mason simply defended such an elected lower house as the “grand depository of the democratic principle of the Govt.” James Madison, who did understand what was going on, shrewdly provided lip-service to the necessity of popular election of one legislative branch as “essential to every plan of free Government.” But then he revealed the purpose of the plan by assuming that popular elections would be refined “by successive filtrations” and that such filtrations of the Senate (the upper house), the judiciary, and the executive would effectively place the all-powerful national government beyond popular control. The even franker James Wilson laid bare the Machiavellian design of the nationalists: popular election of the House would free the national government from state control and thus raise “the federal pyramid to a considerable altitude” by giving it “as broad a basis as possible.” Thus, national power could really be removed from more popular control while at the same time, popular election would mislead the people into placing their necessary confidence in the government. For “no government could long subsist without the confidence of the people. In a republican Government this confidence was peculiarly essential.”

Wilson added that a large-scale government would naturally give this confidence because of the vainglory of the masses: “The people he supposed would be rather more attached to the national Govt. than to the State Govts. as being more important in itself, and more flattering to their pride.” Furthermore, any danger from excessive democracy could be met by making the elective districts large and therefore remote from control by the people themselves. One amusing incident occurred when George Read, exasperated at John Dickinson of Delaware’s wish to allow some room for the states in the American system, revealed his eagerness to see the total abolition of the states: “We must look beyond their continuance. A national Govt. must soon of necessity swallow all of them up. They will soon be reduced to the mere office of electing the national Senate.” Read attributed any reluctance to “interested men” in state governments. James Wilson, alarmed at Read’s imprudent frankness, hastened to assure everyone that the states would not be abandoned; in fact, they might well remain provided they were “restrained to certain local purposes.” With Read refusing to take the hint and repeating his pronouncements, it is doubtful that Wilson’s attempt to soothe proved much comfort for the few liberals present. Finally, after lengthy debate, the convention voted, on June 6, to elect the lower house of Congress by the people rather than by the state legislatures. The vote was 8-3; the three objecting were Connecticut, New Jersey, and South Carolina.

In the course of the debate on this question, Madison returned to the scene with a general defense of the concept of strong central government. In what is surely one of the most specious and overrated arguments for wide-ranging government ever provided (and foreshadowing his argument in The Federalist No. 10), Madison insisted that one of the main purposes of government was to defend the rights of various types of minorities. To do so, the bigger and farther-reaching government the better, for then it would be difficult for any one majority to form out of the great multiplicity of minority interests. As Madison put it:

Where a majority are united by a common sentiment and have an opportunity, the rights of the minor party become insecure. In a Republican Govt. the Majority if united have always an opportunity. The only remedy is to enlarge the sphere, & thereby divide the community into so great a number of interests & parties, that in the 1st. place a majority will not be likely at the same moment to have a common interest … and in the 2d. place … they may not be apt to unite in pursuit of it.

It should be evident that, first, coalitions to form a majority are not very difficult and, second, the centralizing of power into one large juggernaut provides far more of an opportunity—and more of an incentive—for trampling the rights of minorities. The stakes are larger and restraints weaker, not greater, because power is concentrated and consolidated. On the contrary, it is the fragmentation of power into many small local units that is likely to make oppression of minorities more difficult. Furthermore, minorities tend to have more control in smaller political units since they are more likely to have effective representation in them. In other words, the smaller the political unit, the harder it is for any one minority to coerce another, and the greater control each minority has.

In fact, Madison’s real argument here was worded in deceptive language. What Madison and his fellow nationalists were really anxious to secure were the rights of minorities against the majority, or more specifically, oligarchical rule by a specialized minority at the expense of the majority. What central government power made easier was just such minority rule, for central government was both stronger and more remote from the knowledge, vigilance, and control of the people. The larger the scope and strength of government, indeed, the more difficult it is for a knowledgeable majority to form and unite to rise up against its remote oligarchical and bureaucratic rule.

The unrealism of Madison’s theory can be seen from the only true examples which were given of supposed majorities trampling over the minority that made strong central government necessary: “Debtors have defrauded their creditors. The landed interest has borne hard on the mercantile interest.” But the reality of the 1780s was that the landed farmers were being oppressed by the public debt and tax structure imposed by merchant-public creditors, and that such attempts as Shays’ Rebellion to break off their yoke were one of the important factors in pushing the nationalists to form the Constitutional Convention. In short, strong centrist government was partly devised to re-impose the minority mercantilist yoke upon the majority, which was being thwarted in some of the states.2

The next critical debate was over the upper house (the Senate), which Virginia had proposed to have elected by the lower house of Congress, thus assuring large state nationalist domination of the Senate as well as the House. Here the resistance was too great, and only Massachusetts and South Carolina backed the Virginia Plan. James Wilson insisted on crushing the states completely by also electing the Senate according to popular vote, while George Read was by far the most reactionary in advocating the executive appointment of senators from members of state legislatures. John Dickinson protested that he opposed any “attempt to abolish the States” altogether. The result, on June 7, was unanimous agreement to have senators selected by the separate state legislatures.

Thus, by early June, the convention had decided on election of the lower house of Congress by the people of various states, and election of the senators by the state legislatures. But one critical point about the representation had yet to be settled: how many representatives would be granted to each state? This struggle had been postponed when the Delaware delegates threatened to walk out should representation be proportionate, as in the Virginia Plan, to population in the apportionment of both houses of Congress.3

• 1. [Editor’s footnote] Rothbard presents votes on several resolutions in the form of Yes-No-Divided. Recall that Rhode Island declined to attend the convention and New Hampshire arrived late. Delegates from several states periodically left (including at one point the entire New York delegation, which was continually split between Hamilton versus Yates and Lansing), and this explains why the total number of states in the vote counts was not always uniform.
• 2. Many historians have represented the struggle as being over paper money and private debts, but as has been seen, almost all groups favored paper money inflation of one form or another. The main conflict of private debtors was the highly justifiable one of imprisonment for nonpayment of debts.
• 3. [Editor’s footnote] Max Farrand, The Records of the Federal Convention of 1787, vol. 1 (New Haven, CT: Yale University Press, 1911), pp. 30–37, 48–50, 135–37. Farrand’s records are based largely off of James Madison’s own personal notes.