For what purpose did our founders establish a government with a legislature divided into two separate branches with such a different structure and temperament? Why did they construct the election of senators as they did, why was it changed and, more importantly, which is better?
Today we see in the Senate a cadre of men and women many of whom have lost touch with those they were elected to represent and who act as elitists to whom the power and prestige of office is their right and not a privilege. Such a representation in the Senate was not the vision of either the Federalists or the Anti-Federalists, though the Anti-Federalists feared that what we have today in the Senate would eventually rear its tyrannical head. To really understand the nature of the Senate we need to go back to the Constitutional debates in 1787 and learn how and why the Senate was formed as it was so that we can better understand the damage that the passage of the seventeenth amendment did to the balance of power that our founders sought to establish.
To begin we must return to the time of the Revolution and the makeup of what was to become our great republic. We began our existence as thirteen separate and divergent colonies under the control of the British Crown. Following their victory for independence each of these colonies then became thirteen independent, sovereign states which coalesced into a loose Confederation, much like many of the confederations of ages past. In this initial stage of development the leaders in the various states were highly influenced by the Baron Montesquieu’s momentous work, The Spirit of the Laws, in which he recounts such confederations in history, how they failed and how better governments ought to be constructed. When these leaders realized that the state of the current confederation was severely crippled, they met in Philadelphia in the spring and summer of 1787 with the intention of revising the Articles of Confederation to shore up these weaknesses. Among these weaknesses that needed to be strengthened were such problems as the disputes between the states over commerce, an ineffective central government that was incapable of defending the states and asserting any authority over them as it was broke and unable to raise any revenue from the states, and a lack of any common currency among the states as each one was minting its own. These were just a few of the serious problems facing the representatives of the states as they assembled that summer in what we now call “Independence Hall”. Because these men represented individual, sovereign states that were jealous of their independence, much heated debate occurred over the nature of the legislative branch, its makeup, the length of terms elected officials would serve and most importantly, how many would be elected to each of the two representative bodies.
In these debates there were two strong currents of thought running at odds with each other. There was the emphasis of what was considered to be adequate representation in both houses in terms of the number of those elected, especially in the House which was to be the “people’s house of representation.” Those who were to serve in the House were to be directly elected by the people and as such would serve to represent the interests of the citizens on the most local of levels. To balance this body the Senate was created to represent the interests of the individual states which would be giving up the sovereignty they currently enjoyed in order to form this new and “more perfect union” known as the United States.
One of the major issues debated during the summer of 1787 was the number of senators that each state would be allowed to have. The larger states, such as Virginia, desired to have the numbers determined by the appropriation of the population of the states, but the smaller states such as Connecticut feared that their interests would be subrogated to and ignored by the larger states who would have a larger representation. Roger Sherman, a jurist and delegate from the state of Connecticut, came up with the proposal that is now known as “The Connecticut Compromise” which resolved this impasse and it is his proposal that we find incorporated in Article I Section 3 of the Constitution:
“The Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof for six Years; and each Senator shall have one Vote.”
With this compromise the desire to have a form of democratic representation was achieved in the House as it would be composed of Representatives elected directly by the people, while the Senate would preserve the federalist nature of the old Confederation by being tied to the interests of the states in that the Senators would be selected or appointed by the various state legislatures. As Alexander Hamilton argued during the ratification debates in the New York State convention,
“When you take a view of all the circumstances which have been recited, you will certainly see that the senators will constantly look up to the state governments with an eye of dependence and affection. If they are ambitious to continue in office, they will make every prudent arrangement for this purpose, and, whatever may be their private sentiments or politics, they will be convinced that the surest means of obtaining reelection will be a uniform attachment to the interests of their several states.”
Madison echoed this purpose in The Federalist Papers Number 58:
“There is a peculiarity in the federal Constitution which insures a watchful attention in a majority both of the people and of their representatives to a constitutional augmentation of the latter. The peculiarity lies in this, that one branch of the legislature is a representation of citizens, the other of the States: in the former, consequently, the larger States will have the most weight; in the latter, the advantage will be in favor of the smaller States.”
To see why this was such an issue we must understand the mindset of those who came to be known as the Anti-Federalists whose suspicions of the new Constitution would have to be overcome if it was to be ratified. In his introductory remarks to the collection of James Madison’s notes on the Constitution Convention debates, Ralph Ketcham summed up the Anti-Federalist viewpoint very succinctly:
“…the anti-federalists saw in the enlarged powers of the central government only the familiar threats to the rights and liberties of the people….A persistent thrust in anti-federal thought, then, was both to withdraw some of the explicit powers given to the national government and to restrain with further checks and balances the exercise of its remaining powers….The anti-federalists came to these views…because the ideology of the American Revolution were filled with suspicions of power, especially distant, centralized power….
To the anti-federalists this meant retaining as much as possible the vitality of local government where rulers and ruled could see, know, and understand each other. Thus they cherished the Revolutionary emphasis on state and local councils and committees, and the Articles of Confederation where the central government rested entirely on the states. The idea of self-government was tied inextricably to something like a town meeting directness or at least to a state legislature of many annually elected representatives who would really know the people of their districts….Only with such intimacy could the trust, good will, and deliberation essential to wise and virtuous public life be a reality. Anything else, even though resting in some fashion on the consent of the people, would not really be self-government.”
That this was one major area of agreement between the Federalists and the Anti-Federalists is revealed in the essay written by the Anti-Federalist “Brutus”, published on April 10, 1788:
“The apportionment of the members of the Senate among the States is not according to numbers, or the importance of the States; but is equal. This, on the plan of a consolidated government, is unequal and improper; but is proper on the system of confederation — on this principle I approve of it. It is indeed the only feature of any importance in the constitution of a confederated government…It was obtained after a vigorous struggle of that part of the Convention who were in favor of preserving the state governments.”
So if you were to read these debates during that spring and summer and the writings of both the Federalists and the Anti-Federalists in the following year on this mode of the Senators being selected by the state legislatures, the main reasons in support of it could be summed up as follows:
- By being beholden to the state legislatures for their appointment, Senators would have a greater interest and be more influenced by the interests of the states, thereby helping to preserve a portion of the sovereignty of the states.
In this respect it was argued that it would bind the state governments to the federal government and thereby serve as a check on the power of the central government. This was Madison’s argument in The Federalist Papers Number 62:
“It is equally unnecessary to dilate on the appointment of senators by the State legislatures. Among the various modes which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial with the public opinion. It is recommended by the double advantage of favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems.”
This whole concept of senators being appointed by the state legislatures had been the brainchild of John Dickinson, a lawyer and delegate from the state of Delaware. It was he who had placed the motion before the Convention on June 7 that this be the manner in which the Senators were selected and in setting forth his motion he gave the reasons that Madison was later to take up in his writings in The Federalist Papers. In his notes on the debates of that day Madison recorded that
“Mr. Dickinson had two reasons for his motion. 1. because the sense of the States would be better collected through their Governments; than immediately from the people at large; 2. because he wished the Senate to consist of the most distinguished characters, distinguished for their rank in life and their weight of property…; and he thought such characters more likely to be selected by the State Legislatures, than in any other mode.”
- Dickinson’s second reason behind his motion then leads us to the next reason for selecting the Senators in this fashion, namely that it was expected that those in the Senate would be of a higher level of wisdom and experience in matters of the law and governing and that those of a similar background, namely state legislators (rather than the common citizenry), would have a better insight into who best to select to be their state representatives in the national legislature.
To this sentiment Madison concurred, as he recorded his own remarks in this same discussion:
“The use of the Senate is to consist in its proceeding with more coolness, with more system, and with more wisdom, than the popular branch” - i.e., the House of Representatives (Epaminondas).
- In a subsequent speech on that same day, Dickinson not only reiterated this need for the states to have a stake in the national government as separate from the people, he went on to suggest that were both bodies of the legislature to be chosen in the same fashion then there would be a danger of collusion between the two and that they could then lead the country down the same path without consideration of other paths that might be better taken. In other words, just as there was to exist a tripartite system of checks and balances in the new government between the executive, legislative and judicial branches, then even within the legislative branch these two distinctive bodies would serve as a check against one another!
“Mr. Dickinson. The preservation of the States in a certain degree of agency is indispensable. It will produce that collision between the different authorities which should be wished for in order to check each other. To attempt to abolish the States altogether, would be impracticable, would be ruinous….If the State Governments were excluded from all agency in the national one, and all power drawn from the people at large, the consequences would be that the national government would move in the same direction as the State governments now do, and would run into all the same mischiefs. The reform would only unite the 13 small streams into one great current pursuing the same course without any opposition whatever.”
Once again, in the debates that later raged throughout the state ratification conventions, Madison argued this same point in The Federalist Papers Number 62:
“Another advantage accruing from this ingredient in the constitution of the Senate is the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of a majority of the people”,(i.e. the House of Representatives) “and then of a majority of the States” (i.e., the Senate, the representative body for the states)….It is a misfortune incident to republican government, though in a less degree than to other governments, that those who administer it may forget their obligations to their constituents and prove unfaithful to their important trust. In this point of view a senate, as a second branch of the legislative assembly distinct from and dividing the power with a first, must be in all cases a salutary check on the government. It doubles the security to the people by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient….I will barely remark that as the improbability of sinister combinations will be in proportion to the dissimilarity in the genius of the two bodies, it must be politic to distinguish them from each other by every circumstance which will consist with a due harmony in all proper measures and with the genuine principles of republican government.”
- A fourth major reason for appointing senators in this fashion, it was argued, would be that it would be a guard against the corruption of the legislative body. The argument was that it would take a corruption of more than just an individual by a group or the deceiving of the electorate, as it would also require the corruption of the legislators of the state legislatures as well, not to mention the collusion of the House of Representatives, a body of distinctive characteristics that would make it an unlikely co-corruptor. This is the very argument that Madison expounded in The Federalist Papers Number 63:
“ Before such a revolution can be effected, the Senate, it is to be observed, must in the first place corrupt itself; must next corrupt the State legislatures; must then corrupt the House of Representatives; and must finally corrupt the people at large. It is evident that the Senate must be first corrupted before it can attempt an establishment of tyranny. Without corrupting the State legislatures, it cannot prosecute the attempt, because the periodical change of members would otherwise regenerate the whole body. Without exerting the means of corruption with equal success on the House of Representatives, the opposition of that coequal branch of the government would inevitably defeat the attempt; and without corrupting the people themselves, a succession of new representatives would speedily restore all things to their pristine order.”
Again, returning to Madison’s essay in The Federalist Papers Number 62, he further sets forth the premise that due to the difference in the character of the two bodies in the legislature, they would act as a check upon one another (with the implication being that were they both constituted in the same manner such a check and balance on one another would not be possible):
“It is a misfortune incident to republican government, though in a less degree than to other governments, that those who administer it may forget their obligations to their constituents and prove unfaithful to their important trust. In this point of view a senate as a second branch of the legislative assembly distinct from and dividing the power with a first, must be in all cases a salutary check on the government. It doubles the security to the people by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient….I will barely remark that as the improbability of sinister combinations will be in proportion to the dissimilarity in the genius of the two bodies.”
- One final advantage which I shall just briefly touch upon that was set forth as an advantage to this mode of appointment was the fact that since there would only be two senators per state and that the geographical coverage of the state would be much greater than the local districts of the state legislatures, then it would be less likely for the people who would be voting for a senatorial candidate to know him and conversely to be known by him. It was argued that by having the state legislators conduct the election of the senators that they would have a better feel of the desires of the citizenry as they, unlike a senator, would know and be known by their constituents.
This was the genius and wisdom behind the arrangement for the election or appointment of those who were to represent the states’ interests in the new federal legislature. The question now put before us is what went wrong that would cause later generations to want to change this system and ultimately do so with the seventeenth amendment? Following that then is the question, was this a change for the better – why or why not? These will be the focus of next week’s essay.
-Epaminondas
