The Purpose and Powers of the Senate, Part III: Re-framing the Conversation

    Notwithstanding the affirmation of the previous entry in this series – namely that the British House of Lords and the various colonial executive councils each played a role in shaping the assumptions of the architects of the United States Senate – the Framers also doubtless brought to bear their various personal experiences with the upper houses of their respective states. The Articles of Confederation, of course, made no provision for a national upper house, thus leaving it up to the Framers to craft one out of whole cloth if they decided that their new national government was in need of the same. But by the time that the Philadelphia Convention was first convened in May of 1787, the states had been operating under their own constitutions for the better part of a decade and most of the resulting governments included some form of upper house. And when one also recalls that many of the people who we now refer to as the Framers of the United States Constitution also previously helped to draft their respective state constitutions, it would seem worth considering the extent to which these men’s ideas about upper houses – having previously been shaped by their upbringings in the Anglo-American world – were refined and given form by the constitutional arrangements ultimately adopted by their home states. The House of Lords was one thing, and the colonial governments another – neither of which these men could have controlled – but the fact that many of them had helped to craft the upper house of the state in which they lived surely conditioned how they viewed the very concept itself. Specifically, it must have seemed to each man that his state was the only one that had got the whole idea of an upper house right and that the government of the United States would benefit from following suit. Bearing all of this in mind, some of the upper houses of the various states – circa 1787, of course – would seem to warrant examination.

    Consider, to that end, what the frame of government in force in Massachusetts at the end of the 1780s had to say about the responsibilities previously exercise by the colonial executive council. The Massachusetts Executive Council, recall, had been both the upper house of the colonial assembly and a kind of executive advisory committee intended to assist the Crown-appointed governor. Its members were elected – on the consent of the governor – by the lower house of the General Court, were not intended to represent any established geographical districts, and tended to be drawn from only the most influential and the most loyal elements of contemporary colonial society. But while the constitution which the people of Massachusetts chose to ratify in October of 1780 preserved virtually all of these responsibilities – and even retained the nomenclature of “Executive Council” for the state’s primary gubernatorial advisory committee – it also split off the Council’s legislative responsibilities and created a separate Massachusetts Senate whose sole and exclusive purpose was to make law as a part of the General Court. With offices like Treasurer and Attorney General now being popularly elected, responsibility for executive appointments was also taken away from the Council, though it retained its established rights in terms of judicial offices and state magistrates. And whereas the colonial-era Executive Council had been distinctly non-geographical, both its direct successor and the new Massachusetts Senate were to represent specifically defined districts. Both Senators and Councilors were to be popularly elected and both Senators and Councilors were to serve for set terms in office.  

    Evidently, as these alterations would seem to suggest, the framers of the Massachusetts Constitution took some amount of issue with the way things had previously been done. Rather than rely on the Governor and the lower house of the General Court to nominate and ratify a series of councilors based on nothing more than their respective influence, popularity, or loyalty, they evidently concluded that it made better sense to tie individual council seats to specific geographic districts and to allow the people residing in those districts to fill them by way of popular election. Not only did this represent a democratization of the resulting institution, but it also demonstrated the extent to which the framers of the new Massachusetts Constitution favored tangible qualifications over intangible ones. It was no longer enough, they seemed to believe, for a person to claim a council seat based on their status as a property owner or their preeminence in a particular professional sphere. Rather, in keeping with the general trend among the American political classes of the era towards rationalization and standardization, the Governor’s chief advisors were to speak on behalf of the particular communities whose votes they had won. In addition, seemingly dissatisfied with the mixing of legislative and executive responsibilities – and the resulting conflicts of interest – which the colonial version of the Executive Council in large part represented, the authors of the Massachusetts Constitution also made a point of splitting off the Council’s existing legislative duties and incorporating them into a distinct and separate Massachusetts Senate. While the result was a more complex arrangement of institutions than had previously been the case – with a Governor, an Executive Council, a bicameral legislature, and a series of state courts – said arrangement was also a good deal more rational. With fewer overlapping responsibilities and more clearly separated spheres of influence, the organs of the newly minted government of Massachusetts were less likely to become embroiled in internal conflicts over jurisdiction and more likely to serve the people of that state to the fullest extent possible.

    The political elites in Virginia followed broadly similar logic to that of their brethren in Massachusetts when they set themselves to the task of drafting their own state’s first constitution some four years earlier in 1776. As was the case in the Bay State, Virginia’s existing colonial executive council was essentially to be split into its legislative and executive functions. The former, by which the council acted as the upper house of Virginia’s legislature, were to be reconstituted in the form of a distinct and separate Senate, the members of which were to be popularly elected to four-year terms to represent a series of geographic districts. Like the colonial council, the Virginia Senate could propose or amend any and all types of legislation, money bills being the exception. And unlike the colonial council, the Virginia Senate would possess no judicial responsibilities whatsoever. The colonial council’s executive functions, meanwhile, were to be transferred to a reconstituted Council of State, “Consisting of eight members, [to] be chosen, by joint ballot of both Houses of Assembly, either from their own members or the people at large [.]” But while in Massachusetts the similarly-described Executive Council maintained its colonial predecessor’s authority over judicial appointments, the Virginia Council of State was stripped of essentially all of the power that it had previously held. “The two Houses of Assembly,” read the new constitution,

Shall, by joint ballot, appoint Judges of the Supreme Court of Appeals, and General Court, Judges in Chancery, Judges of Admiralty, Secretary, and the Attorney-General, to be commissioned by the Governor, and continue in office during good behaviour.

All that this left to the members of the Council was the right to advise the Governor – but not to provide their consent – in the performance of his duties while commanding the state militia or making recess appointments to any of the posts cited above.

    Bearing all of these changes in mind, it would seem as though the framers of Virginia’s first independent constitution approached the upper house of their existing colonial government in much the same spirit of rationalization as would their counterparts in the Bay State. The fact that they also decided to create a separate legislative body to take over the Council of State’s legislative duties, for example, appears to speak to a similar desire on their part to eliminate potential sources of conflict between the various branches of the state government by more clearly delineating the spheres of influence within. The fact that they also took away the colonial council’s judicial responsibilities and instead vested them in a Supreme Court of Appeals likewise appears to indicate their rationalizing intentions. That the framers of the new Virginia Constitution seemed to approach the task of refashioning their state’s government with a similar set of objectives in mind to those of their compatriots in Massachusetts, however, should not be permitted to obscure the fact that the end results which the two groups achieved were at times markedly different. Whereas the Massachusetts Executive Council – suitably restructured – still looked to maintain some degree of executive authority, for example, the Virginia Council of State was reduced to little more than an advisory body with no binding power to speak of. In part, of course, this due to the two groups’ differing treatments of executive power.

    In Massachusetts, the framers of the state’s new constitution seemed to believe that a governor and an executive council, if handled properly, could still be trusted to exercise certain meaningful responsibilities. In Virginia, conversely, the framers of that state’s new constitution transferred almost all of the responsibilities that had belonged to the former colonial governor over to the reconstituted legislative assembly, leaving very little for the new state governor to do and even less for the aforementioned Council. Granting that this was not all that surprising given the mistrust of executive authority which the events of the Revolution had inculcated amongst the contemporary American political elite, it is noteworthy all the same the extent to which this outlook also impacted American attitudes towards the concept of an upper house. While neither the colonial upper houses nor the British House of Lords had been particular sources of enmity during the events which culminated in the formal break between Britain and the Thirteen Colonies, the fact that the colonial executive councils tended to exercise power either through or at the behest of the relevant colonial governors meant that weakening the latter necessarily involved weakening the former as well.

    As should by now come as no surprise whatsoever, the framers of Pennsylvania’s first independent constitution – circa 1776 – went farthest of all in following this trend to its logical conclusion. Or perhaps, depending on how you look at the thing, they went all the way in the opposite direction. On the one hand, it might be said that the new constitution merged the office of governor with the existing Provincial Council, in the process creating a directory-style executive wherein no one member exercised exclusive authority. On the other hand, however, one might also reasonably claim that said constitution simply eliminated the Provincial Council and turned the office of governor into a collective body of executives. By way of its responsibility over the appointment and commissioning of, “Judges, naval officers, judge of the admiralty, attorney general and all other officers, civil and military, except such as are chosen by the general assembly or the people [,]” the new Supreme Executive Council was nearer in its function and responsibilities to the old colonial governor. But it also closely mirrored the old Provincial Council in terms of how it was structured and constituted. Its members were to be elected on a county-by-county basis for a term three years, with a period of four years required to elapse before they could stand for re-election. It is also worth noting that Pennsylvania’s new constitution created a second committee-style body known as the Council of Censors, the purpose of which was,

To enquire whether the constitution has been preserved inviolate in every part; and whether the legislative and executive branches of government have performed their duty as guardians of the people, or assumed to themselves, or exercised other or greater powers than they are intitled to by the constitution: They are also to enquire whether the public taxes have been justly laid and collected in all parts of this commonwealth, in what manner the public monies have been disposed of, and whether the laws have been duly executed.

Pursuant to these objectives, the text went on to say, the Council of Censors, “Shall have power to send for persons, papers, and records; they shall have authority to pass public censures, to order impeachments, and to recommend to the legislature the repealing such laws as appear to them to have been enacted contrary to the principles of the constitution.” The Censors were to be chosen in pairs by every city and county in Pennsylvania and were to serve for a term not exceeding seven years.

    An noted above, Pennsylvania’s implementation of the executive council concept in its first constitution represented a significance departure from the trend which most of its sister-states had followed or would follow. Rather than shift most of what had previously been thought of as exclusively executive responsibilities from the office of governor and its attendant council to a popularly-elected legislature – as had been the case in Virginia – or continue the practice of dividing executive authority between a singular governor and either an elected or appointed committee – as would be the case in Massachusetts – the framers of Pennsylvania’s first independent constitution instead consolidated all executive power in the hands of an elected, representative committee while reserving some quasi-judicial functions for a second body responsible for constitutional oversight. That these alterations were accompanied by the wholesale elimination of the office of governor – as it had previously existed, at least – was very much in keeping with the aforementioned sense of disdain with which most of the contemporary American political classes had come to regard traditional executives. But the creation of council-style executive or judicial bodies – in the form of the Supreme Executive Council and the Council of Censors, respectively – represented a wholly novel rearticulation of the pre-exiting colonial power structure. Evidently, the framers of Pennsylvania’s first constitution were still attached to the idea that executive decisions were best made with the formal input of elected representatives of the state’s various geographic communities. Indeed, compared to the terms of the previous colonial charter, Pennsylvania’s new constitution doubled down on the idea that executive authority ought to be a collective endeavor, and that whereas legislation was best left to a proportional representation of the whole number of citizens therein, the execution of the laws and the appointment of judicial and executive officials rightfully belonged to a direct representation of the state’s existing communities. 

    Naturally, the variations on the existing colonial model of executive council which Massachusetts, Virginia, and Pennsylvania respectively adopted as part of the first independent constitutions were not the only forms which the former Thirteen Colonies chose to embrace. These three were among the largest states, of course, and the most wealthy and influential. And each of them, owing to their wildly divergent colonial origins, arguably represented very different cultural approaches to concepts like political hierarchy and executive power. But there were certainly other approaches implemented in the other colonies-cum-states. The new Maryland Constitution, for example, described a council very much like that of Massachusetts – its five members to be chosen by a joint ballot of the bicameral state assembly – but whose authority over appointments extended beyond just court officials to include, “The Attorney-General, Naval Officers, officers in the regular land and sea service, officers of the militia, Registers of the Land Office, Surveyors, and all other civil officers of government [.]” New York’s first constitution, meanwhile, created two such bodies which variously combined executive, legislative, and judicial prerogatives. One of them, to be comprised of, “The chancellor, and the judges of the supreme court, or any two of them, together with the governor,” was, “To revise all bills about to be passed into laws by the legislature [.]” This body, which could return bills it found to be “improper” to the state senate for reconsideration, was to be known as the Council of Revision. The other, which included among its members the Governor as chair and one Senator from each of the upper house’s four electoral districts, conversely saw to the appointment of, among other offices, the State Comptroller, the Secretary of State, the Attorney General, the Surveyor General, the Chancellor, the justices of the New York Supreme Court, sheriffs, district attorneys, all other judges, city and county clerks, mayors, and all military officers under state jurisdiction. This body, known as the Council of Appointments, was to meet every year, with its Senator-members appointed in preparation for the same.  

    Notwithstanding these alternately major or minor adaptations of their colonial-era executive councils – and the different combinations in which they sorted and mixed executive, judicial, and legislative authority – there do seem to have been some basic trends to which the framers of most of the various state constitutions were broadly determined to adhere. Just about every state, it seems, felt that certain executive prerogatives were best exercised by representatives of the various communities therein. This marked a departure from the practice of the executive councils during the colonial era but arguably moved the state councils closer in structure to the makeup of the House of Lords. The Lords, after all, in addition to functioning as the representative institution of a particular class within British society, also arguably served the purpose of providing the landed estates of the Kingdom of Great Britain with a voice in the nation’s legislative processes. And while not all of the state constitutions mirrored this arrangement particularly closely, most of them did seem to agree that geography – and, to some extent, history – were factors which ought to be woven into the logic and the practice of government. While Virginia’s Council of State was a pale shadow of its colonial predecessor – in terms of its authority and responsibilities – the Virginia Senate was required to partake in a joint ballot with the House for the commissioning of Judges of the Supreme Court of Appeals, and General Court, Judges in Chancery, Judges of Admiralty, the Secretary, and the Attorney-General. Massachusetts, in the form of an executive council, similarly created an elected and geographically structured body for the purpose of appointing judicial officials. Pennsylvania took this farther still by choosing to elect to people from every city and county to an executive council whose members then voted amongst themselves on who to appoint to what. And then there was New York, which required its upper house, elected geographically, to partake in the geographic appointment of a subgroup of senators to cooperate with the popularly elected Governor in the appointment of a wide and vast array of state, county, and even municipal officers. The system adopted by Virginia was demonstrably quite a simple one, and that which was described in New York’s constitution particularly complex. For their differences in form, however, they performed a broadly similar function. That is, they created systems of government wherein geography as well as population played a significant role in the formation of public policy.

    Or perhaps more specifically, it was that all of the framers of the various state constitutions seemed to have arrived at a broad consensus that certain ostensibly executive functions ought to be placed in the hands of collective bodies whose members represented communities rather than the people at large. To some extent, this kind of thinking was a holdover from the colonial era. As previously discussed, most of the colonies were possessed of some manner of executive council which functioned as a combination of legislative upper house and gubernatorial advisory committee. What the framers of the various state constitutions did, in terms of adapting these existing structures and institutions, was both democratize and rationalize them. Appointed councilors were made elected, terms limits were introduced, geographic qualifications were set, and responsibilities were moved around in such a way as reflected the political culture of the jurisdiction in question. Aristocratic Virginia placed significant stress on landed wealth while de-emphasizing the accustomed preeminence of the executive branch of its government. Conservative Massachusetts maintained the basic structure of its colonial-era government while altering the composition and responsibilities of its various constituent institutions. And radically democratic Pennsylvania, in a bit of an optimistic fervor, merged the office of governor with its former advisory council and created a second quasi-judicial body to hold the rest of its government to account. In every case, its bears noting, some role was set aside for geographic as well as popular representation. And whenever responsibility for certain duties was to be shared away from the traditional executive and granted to another body, the geographic representatives were invariably those so chosen.