By the time that the Philadelphia Convention got around to the topic of what purpose an upper house of Congress might serve and what powers it ought to wield, a great many decisions had already been made that would shape large portions of the relevant discussion. The most significant of these was undoubtedly the one which resulted in Congress being bicameral rather than unicameral, thus establishing the structural basis of the Senate’s very existence. Prior to this decision – since memorialized as the sealing of the so-called “Connecticut Compromise” – the assembled delegates had spent the better part of two months debating back and forth upon the merits of different schemes of elected representation without a consensus seeming likely to emerge.
The representatives of the larger states – like Massachusetts, Virginia, and New York – were resolutely in favor of apportioning seats in Congress according to a thorough survey of population. The states with the largest number of residents would receive the most delegates and the states with the smallest number would receive the fewest, thus distributing legislative authority exactly in proportion to how widely the resulting statutes would be felt therein. If a tax were to be levied on some manner of consumer good, for example, it made all the sense in the world for the states containing the greatest number of people liable to pay said tax to have the greatest share of influence over how it was to be laid. The delegates that had been sent to Philadelphia by the smaller states – like Rhode Island, Georgia, New Hampshire, and Delaware – were naturally resistant to any such proposal, particularly as it would have more or less doomed them to near-total irrelevancy in the context of national affairs. Instead, they favored something like a continuation of the system described by the Articles of Confederation. Under the auspices of this selfsame document, each of the states was entitled to send as many as seven delegates to Congress – chosen by whatever means they desired – and each state delegation was entitled to a single vote. This represented a far more reasonable distribution of power, the representatives of the small states vehemently urged, in no small part because it acknowledged the fundamental equality of the states as legal entities. The likes of Virginia and New Hampshire were undoubtedly very different – in turns of climate, resources, and culture as well as population – but these differences by no means entitled one to claim a superior position over the other.
The two proposals which at length came to embody these dueling perspectives were the Virginia Plan, drafted by one James Madison (1751-1836), and the New Jersey Plan, authored by William Paterson (1745-1806). Under the terms of the former, the lower house of Congress was to be apportioned according to the populations of the various states while the upper house was to be filled by way of a ballot conducted in the lower house. Nominations for seats in the upper house were to be supplied by the states to be represented therein and the two houses were to elect a national executive by way of a joint ballot. The delegates sent to Philadelphia by the large states, as aforementioned, were generally quite pleased with this arrangement, specifically as it would serve to prevent their delegations in Congress from being outvoted by those who represented much smaller populations. But as the delegates from the small states understandably disliked the notion that their accustomed power was to be taken away, they quickly aligned themselves behind the counterproposal cited above. Not only did they hold it to be manifestly improper for population to be the only measure of legislative authority, but certain of them also held the shift from voting as states in Congress to voting as individual members to be too radical a departure from the procedures of the existing confederal government. As the aforementioned William Paterson accordingly noted at the time, “We have no power to go beyond the federal scheme, and if we had the people are not ripe for any other. We must follow the people; the people will not follow us.”
Notwithstanding the seeming incompatibility of these plans, other aspects of the relevant debate did move forward. Though Paterson’s New Jersey Plan did envision a unicameral legislature very much of a kind with how Congress operated under the Articles of Confederation, most of the delegates nevertheless showed themselves to be increasingly amenable to the idea of a bicameral national legislature. The British Parliament, after all, had an upper as well as a lower house, and so too – with the exception of Pennsylvania – did the legislatures of all thirteen states. And as long as there was going to be an upper house, a consensus also slowly began to form around the idea that its members ought somehow to represent a different class of people than were likely to fill the proposed lower house. Many delegates had grown disenchanted with the rank populism that had characterized post-Revolutionary politics in a number of the states and were accordingly eager for some means of restraining what was sure to be the similarly “democratic” character of the proposed national legislature. Ultimately, of course, the development of these ideas into concrete proposals could only go so far without the assembled delegates at some point establishing on what basis their new Congress was to be built and to function. Members of the Connecticut delegation had offered words of compromise as early as June 11th – during which debate Roger Sherman (1721-1793) notably observed that,
As the States would remain possessed
of certain individual rights, each State ought to be able to protect itself:
otherwise a few large States will rule the rest. The House of Lords in England […]
had certain particular rights under the Constitution, and hence they have an
equal vote with the House of Commons that they may be able to defend their
rights.
While, in the moment, this remark did little to ameliorate what had become the defining disagreement of the Philadelphia Convention thus far, it did set the stage for the breakthrough that was to come. For it was after not too much longer that the assembled delegates came to the common conclusion that the question of apportionment could no longer be set aside.
As would often prove the case when the delegates were keen on finally settling a particularly thorny question, a committee was formed comprised of one member from every delegation and given the task of reconciling the competing interests of the large states and the small states. This body, meeting for the first time while the larger Convention was in recess for the observance of July 4th, then swiftly moved to adopt almost exactly the kind of compromise proposal that Roger Sherman and his colleagues had been advocating for the better part of a month. Congress, the twelve committee members decided, was to be divided into an upper and lower house, with the former apportioned by population and the latter apportioned equally. Both houses would have the power to originate legislation, but – by way of a concession to the large states – only the lower house would have the power to propose bills for the levying of taxes. But while this seemed to strike an ideal balance between the interests of the two competing parties, the committee’s report was not immediately adopted by the Convention when it next met on July 5th. Having been presented with some means of surmounting what had to that point been the largest single obstacle in their path, the assembled delegates naturally sought out and immediately fixated upon the next-most controversial question imaginable. Namely, they began to argue about how the lower house was to be apportioned. By population, they all agreed; but by what ratio, and to what extent?
The disagreement at hand was uncomplicated, if fundamental. The delegates from states in which slavery remained economically essential – located mainly in the South – declared it only right and proper that the enslaved peoples residing therein be counted towards the apportionment of their seats in the lower house of Congress. The delegates from states in which slavery had been abolished or sentenced to eventual extinction – located mainly in the North – conversely asserted that it made no more sense to count enslaved peoples among the state’s populations than it did to apportion representatives for every cow, oxen, or draft horse. From the Northern perspective, the slaveowners seemed to want to treat their human property like farms animals when it benefitted them economically and like full citizens when it benefited them politically. And from the Southern perspective, slaves represented far too much in terms of their economic potential – and, in turn, the South’s economic capacity – not to be counted on the same basis as people who were free. At the heart of these dueling arguments, of course, was the essential calculus of political power. Under the scheme then being floated by the assembled delegates, the Northern, non-slave states would enjoy a larger representation in the lower house of Congress than the Southern, slaveholding states in the event that the proposed constitution was adopted. Not only that, but the rate at which the free population of the Northern states was growing compared to that of the Southern states seemed likely to ensure that this would remain the case for the foreseeable future. Unwilling to thus resign themselves to a perpetually inferior position within the national legislative sphere, the Southern delegates accordingly deployed all manner of argument possible in an attempt to convince their Northern counterparts to allow for the inclusion of their fast-growing slave populations in any scheme of legislative apportionment.
While the aforementioned Southern delegates did not manage to achieve their desired end as they had originally stated it – with enslaved peoples treated as equal to free peoples for the purpose of Congressional apportionment – their core argument did receive some degree of recognition. Slaves would not be counted as equal to free residents for the purposes of apportionment but would rather have their numbers recorded at a ratio of three-fifths. As this same arrangement would apply to federal taxation as well as representation, the two sides appeared to arrive a mutually beneficial compromise. That is, in exchange for the Southern states agreeing to take on the tax burden of people whom they otherwise treated little differently from livestock, the Northern states permitted the inflation of their counterparts’ representation in Congress. Having thus settled upon a mechanism of apportionment – circa July 12th, when a motion by a South Carolina delegate to return to counting enslaved peoples as equal to free peoples was handily defeated by a vote of the full Convention – the conversation shifted back once more to the proposal previously submitted by the aforementioned Committee of Twelve. When, after a few additional days of debate, the full Convention voted to approve the same – circa July 16th – a handful of last-minute modifications were then proposed and approved and the question was finally as of July 23rd. Congress would be bicameral, with a proportional lower house and an equal upper house. The members of the upper house would be assigned two per every state, and they would be entitled to vote individually rather than by delegation.
The mechanisms of representation and election were but one piece of the puzzle, of course. Certainly, it was exceedingly significant that the Convention had finally agreed upon how their new vision of Congress was to be structured. Several major obstacles had been successfully overcome, and the revised national government which the assembled delegates had set themselves to designing was at long last beginning to take on a definite shape. But there remained, all the same, a great many unanswered questions as to how certain of the institutions whose outlines the delegates had succeeded in sketching would actually function in practice. The Senate, for example, while now fairly clearly defined as being the upper house of Congress whose members were distributed equally among the states, had yet to be granted many specific powers or responsibilities. Per the compromise proposal authored by the Committee of Twelve and ultimately adopted by the full Convention, it would refrain from proposing any new taxes or appropriations, but this could hardly have represented the full magnitude of the Framer’s intentions. State upper houses and executive councils, alike with their colonial counterparts, had possessed and exercised far more responsibilities than just acting as a second debating chamber with the relevant legislative assembly. It therefore stood to reason that the assembled delegates had similar plans in mind for the national upper house upon whose existence they had just lately settled.
In point of fact, conversations to exactly this effect had been happening in some manner since before it was entirely certain what form the new Congress would take. As early as June 26th, for example – one week before the formation of the Committee of Twelve – James Madison remarked upon what he perceived to be ideal purpose of an upper house in the midst of an oration on the oft-precarious nature of republican government. Mainly, he said – as recorded in Robert Yates’ Notes of the Secret Debates of the Federal Convention and Madison’s own Notes of the Debates of the Federal Convention – such a body ought to act as the primary representation of the nation’s landed interests. It may not have seemed a necessary thing at the present moment, when landed wealth was relatively widespread and those unlanded individuals who could vote were few in number, but this was bound to change in time. At length, Madison asked of his fellow delegates,
When we approximate to the states and
kingdoms of Europe; when the number of landholders shall be comparatively
small, through the various means of trade and manufactures, will not the landed
interest be overbalanced in future elections, and unless wisely provided
against, what will become of your government?
Tellingly,
Madison’s next allusion was to the nation whose politics and culture were bound
to exert the largest single influence upon the character of American
government. “In England,” he said,
At this day, if elections were open
to all classes of people, the property of the landed proprietors would be
insecure. An agrarian law would soon take place. If these observations be just,
our government ought to secure the permanent interests of the country against
innovation. Landholders ought to have a share in the government, to support
these invaluable interests, and to balance and check the other.
Plainly, though the exact form of
the Senate had not yet been established, Madison had already determined for
himself what role it ought to play under the auspices of the proposed
constitution. For preference, he explained, it should be a fundamentally
conservative body, both in that it ought to possess, “Permanency and stability”
in and of itself and in the sense that its members should represent the unchanging,
immovable property of the nation. In part, this was so that the Senate might
serve to “check and balance” the influence of the more democratic impulses that
were bound to characterize the lower house of Congress. Runaway populism was a
common feature of the various state assemblies over the course of the 1780s,
and one for which Madison maintained a distinct distaste. It was also, however,
something of a practical matter. Just as the British House of Lords represented
the interests of the kingdom’s various landed estates, so might the American
Senate act as the mouthpiece and the guardian of the landed interests of the
American republic. Remove the House of Lords, Madison observed, and Parliament
might see its way clear to seizing the properties of the landed magnates and
redistributing them to those whom it finds to be in need. Absent a similar
degree of legislative oversight, might not the same thing happen in America?
Why should American landowners be more vulnerable to having their property
rights violated than their British counterparts? Why shouldn’t they have an
institution within the national government responsive to their particular interests
and needs? Madison’s answer, of course, was that they should, and that the
Senate ought to be that institution.
The question at hand, for the
record, which prompted these comments was whether or not the members of the
upper house of Congress ought to sit for terms of nine years. Madison, as
evidenced by his arguments in favor of making the Senate as stable and
unchanging as possible, was obviously in favor. “The longer they continue in
office [,]” he said of the prospective Senators, the better will the, “Minority
of the opulent” be protected against the majority. Madison’s close ally during
the Philadelphia Convention, James Wilson, was of much the same opinion
himself, though his stated reasoning was less explicitly classist. Specifically,
while he agreed with Madison that the Senate ought to be as stable as possible,
Wilson showed himself to be particularly concerned with the foreign policy
interests of the proposed national government. “Every nation [,]” he said,
“Attends to its foreign intercourse-to support its commerce-to prevent foreign
contempt, and to make war and peace.” And as it seemed to him that, “The Senate
will probably be the depository of the powers concerning [,]” these selfsame
objects, “It ought therefore to be made respectable in the eyes of foreign
nations.” Doubtless, Wilson was reflecting upon some of the principal
deficiencies of the existing national government when he made this observation.
Under the terms of the Articles of Confederation, the foreign policy of the
United States was the responsibility of Congress, either by way of its
appointed Foreign Minister or through its own inherent power to draft and
approve treaties. But while the latter mechanism granted every state an equal
say when negotiating with foreign powers, the inability of Congress to impose
its will upon the states – in terms of treaty obligations no less than taxes –
meant that even those agreements which Congress managed to ratify were only
ever theoretically enforceable. The nascent American republic’s reputation on
the world stage had unsurprisingly suffered as a result, making it that much
harder for the young nation to secure foreign loans, alliances, or treaties of
amity and commerce.
Wilson’s solution to this problem,
at least in part, was evidently to vest the newly constituted upper house of
Congress with both a substantial degree of responsibility within the sphere of
foreign affairs and the requisite substance and gravitas to inspire respect
both abroad and at home. “The true reason [,]” he argued accordingly,
Why G. Britain has not yet listened
to a commercial treaty with us has been, because she has no confidence in the
stability or efficacy of our Government. 9 years with a rotation, will provide
these desirable qualities; and give our Govt. an advantage in this respect over
Monarchy itself.
Granted, unlike
Madison, Wilson did not tie the Senate’s usefulness to the social class of its
prospective members. It was the, “9 years with a rotation” which he cited
explicitly as allowing the body in question to fulfill its assigned
responsibilities. But he also used terms like “respectable” and “dignified” to
describe the character which he felt that the Senate ought to possess. And
while these may not seem like particularly loaded terms now, they had a
distinctly socio-economic connotation in the context in which Wilson deployed
them. The man may not have been the scion of a wealthy landed family like
certain of his Southern colleagues, but he had been the recipient of a very
impressive education in his native Scotland, replete with an in-depth study of
classical languages and a thorough exposure to the history and literature of
Greek and Roman antiquity. This may not have placed Wilson in the same economic
sphere as his adopted homeland’s equivalent of the British landed aristocracy,
but it certainly would have located him in much the same social sphere. His
conception of “respectability” and “dignity,” in short, would have been much
the same as those of his friend and colleague Madison. A working man would not
have qualified, however neatly and thoughtfully he comported himself. Nor would
a yeoman farmer possessed of little enough land that he had to work it with his
own two hands. No, the respectable and the dignified would have been gentlemen
like himself, possessed of education and culture, refined and worldly. How else
were they supposed to fulfill his stated foreign policy responsibilities? Whom
else would foreign envoys deign to treat with but those whom they could hold in
the same social regard as themselves? Wilson may not have said as much, but the
implication of his words was there. The Senate needed to be dignified, he said,
and in so doing aligned himself with a particular socio-economic interest.
Virginia’s George Mason, during
these same discussions, made this same case again perhaps most explicitly of
all. Evidently in accord with the aforementioned Madison, Mason proposed that
his colleagues take up the question of whether property ought to be a qualifier
for election to the Senate. The question of duration had by this point already
been settled, with only three states voting in favor of a nine-year term in
office and all but four voting in favor of a six-year term. All the same, it
appeared to the esteemed Virginian that something more was yet required. “One
important object in constituting the Senate [,]” he accordingly observed,
Was to secure the rights of property.
To give them weight & firmness for this purpose, a considerable duration in
office was thought necessary. But a longer term than 6 years, would be of no
avail in his respect, if needy persons should be appointed. He suggested
therefore the propriety of annexing to the office a qualification of property.
It is interesting
that Madison made no such suggestion, rather merely noting the purpose which he
thought the Senate ought to fulfill. But then here was Mason, attempting to turn
his colleague’s rumination into policy, specifically by barring those with
insufficient property from serving. The question did not get very far, being
voted down almost immediately, but this was by only a slim margin, six noes to
five ayes. And it also wasn’t the first time on that particular day when
someone among the delegates made a similar suggestion. On a separate question,
at an earlier point in the proceedings, one Charles Cotesworth Pinkney had
given voice to a very similar kind of sentiment.
The question to which Pinkney’s
commentary was directed had to do with how the Senate might possibly be funded.
Specifically, the delegates were debating whether or not Senators ought to
receive a stipend for their service and from where the funding for said
stipends might come. Pinkney was among the first to respond to this inquiry,
and his conception of the issue seemed to place him very much in a league with
the likes of Madison, Mason, and – to a lesser extent – Wilson. It was his
opinion, it seemed, “That no Salary should be allowed […] As this branch was
meant to represent the wealth of the Country, it ought to be composed of
persons of wealth; and if no allowance was to be made the wealthy alone would
undertake the service.” This was not a property qualification, specifically,
and so was different from the mechanism which Mason would go on to suggest, but
it would seem to have sprung from much the same line of thought. Madison had
suggested earlier in the day that the Senate ought to serve as both the
mouthpiece and the guardian of landed wealth in America. And then Mason
suggested later in the day that the best way to ensure that “needy persons”
weren’t appointed to the Senate was to attach some form of property qualification
to the office itself. Pinkney’s proposal, while more definite than the one and
less explicit than the other, nevertheless spoke to the same kinds of
socio-cultural assumptions. All three men seemed to be fairly certain as to the
function which they believed that the Senate should perform. It was to represent
the interests of property – “the wealth of the Country,” as it were – be
possessed of dignity and respect, inspire admiration abroad, and promote
stability at home. Perhaps its members should have been screened based on their
possessions. Perhaps they should simply have been made to donate their efforts absent
any kind of recompense. But in any case, no matter how its membership was
specifically defined, the Senate was to represent a particular kind of American
possessed of a particular kind of perspective and interests. And while it would
seem likely that not every delegate to the Philadelphia Convention shared this
opinion, it is telling that the like of Madison, Mason, Wilson, and Pinkney
did. Pinkney was one of the most prominent members of one of the most prominent
families in South Carolina, while Wilson, Mason, and Madison were scholars par
excellence. Their voices, in short, would have carried tremendous weight
among their colleagues, and between them seemed to represent the most cogent
vision of what the Senate should have been at this early stage in the relevant
discussion.
Granted, the composition and the character
of the prospective upper house was not the only topic of discussion during this
preliminary outing. A fair bit of time was also spent speculating upon the nature
of the web of relationships which would necessarily come to exist between the
Senate, the national government, the states, and the American people. The
trigger for this line of thinking was the aforementioned probe into whether and
how the Senate might potentially be funded. Pinkney, as cited above, argued
that any funding at all was undesirable, specifically as it would serve to invite
those other than the wealthy to serve. But while Benjamin Franklin voiced his
agreement with this assertion – specifically as it seemed likely to stave off popular
accusations that the Philadelphia Convention delegates were simply designing sinecures
for themselves – the motion went down to defeat, six to four, when it was
ultimately put to a vote. The debate that followed gave voice to some of the
reasons for this defeat, all the while also shining a light on certain latent
concerns. Oliver Ellsworth, for example, shortly rose to argue that individual
Senators ought to be paid by the states they represented. In part, he said, this
would serve to furnish the national government with a certain amount of
domestic confidence. After all, if the states were made to help fund a thing,
they’d be more inclined to see it succeed than if they were otherwise
uninvested. And as far as the viability of the Senate was concerned, making the
states financially responsible would serve this end as well. If the Senate was
to be the only body in which the states would enjoy a direct representation,
they would naturally go to no small lengths to ensure that their delegates were
paid promptly for their service and were in attendance as often as possible. As
federal stipends would not seem to accomplish these ends, Ellsworth was accordingly
disinclined to endorse them.
James Madison, meanwhile, was
vehemently in favor of Senators being paid out of the national treasury as
opposed to the state treasuries. The latter procedure, he argued, would have
represented,
A departure from a fundamental
principle, and [subversive of] the end intended by allowing the Senate a
duration of 6 years. They would if this motion should be agreed to, hold their
places during pleasure; during the pleasure of the State Legislatures.
To be sure, this
notion would have pleased no small number of Madison’s colleagues then present.
As Ellsworth had just made manifest, some of the states would have much
preferred the Senators assigned to represent them in Congress serve at their
pleasure rather than the pleasure of the national government and viewed control
over their salaries as an ideal means to accomplish the same. But this was not
at all in keeping with what Madison had presently envisioned. To this thinking,
the essential purpose of the Senate was to act as, “A firm, wise and impartial
body,” which, “Might not only give stability to the Genl. Govt. in its
operations on individuals, but hold an even balance among different States.”
Ellsworth’s motion, he continued, “Would make the Senate like Congress, the
mere Agents & Advocates of State interests & views, instead of being
the impartial umpires & Guardians of justice and general Good.” Evidently, while
the conversation at hand was still ostensibly about how a certain department of
a new national government might be funded, Madison had his sights set on
something of much broader significance. What concerned him, it seemed – and Ellsworth
as well – was not so much how certain things were to be paid for under the administrative
framework he was working to hash out, but what these financial relationships
would imply about that selfsame framework’s essential purpose.
Ellsworth, though he spoke only
briefly, nevertheless made it clear that he viewed the national upper house
which he and his colleagues were actively discussing as fundamentally a mechanism
by which the states would be permitted to make their interests known. It accordingly
followed that Senators should be paid from the treasuries of the states that
appointed them. Not only would this promote a real sense of investment on the
part of the various state governments in the very concept of a strengthened
central government, but it would allow the states to very directly dictate a
significant portion of the national agenda. What this seemed to amount to, on
Ellsworth’s part, was a belief in the creation of a space within the national
political sphere into which the states would be able insert themselves with
more or less free reign. As far as Madison was concerned, however, this would
do little more than, “Make the Senate like Congress [under the Articles], there
mere Agents & Advocates of State interests & views [.]” The Virginian,
as he went on to explain, hoped for far more from any attempt to substantially
modify the national compact. He had no interest in giving the states yet
another space in which to throttle each other over petty disagreements. Rather –
in keeping with his generally centralizing outlook at the time – he believed that
the Senate should serve a much grander purpose on behalf of the American people
as a whole. Far from simply echoing state interests and state concerns within
the halls of Congress, Madison believed that the Senate ought to act as, “A
firm, wise and impartial body,” organized along state lines but fundamentally separate
and distinct from the same. It should be a mechanism of stability, he asserted,
not disagreement; an instrument of balance, he avowed, not parochialism.
Senators should be, “Impartial umpires & Guardians of justice and general
good [,]” he was convinced, and they would never be able to serve this glorious
end if they were the creatures of the states that certain of his colleagues
wished them to be.
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