Chapter 16. Conceived in Liberty 16. The Debate Over Representation in Congress
16. The Debate Over Representation in Congress
The stage was now set for one of the great titanic struggles of the Philadelphia Convention: the postponed question of the nature of representation in Congress, and specifically on the Virginia Plan of proportional representation. William Paterson and David Brearley of New Jersey took the occasion to launch a full-scale counterattack on the large-state nationalist junto. Brearley opened by pointing to the convenient solution of the question that had already been hammered out in the formation of the Articles: equal voting by each state. Only in that way could the smaller states avoid being surrounded by Massachusetts, Pennsylvania, and Virginia. Paterson was even more pointed, sternly reminding the convention that the express object was to amend the Confederation, and that
the articles of confederation were therefore the proper basis of all the proceedings of the Convention. We ought to keep within its limits, or we should be charged by our constituents with usurpation. … the people of America [are] sharpsighted and not to be deceived. … The idea of a national Govt. as contradistinguished from a federal one, never entered into the mind of any. … We have no power to go beyond the federal scheme, and if we had the people are not ripe for any other.
Paterson also threatened that Wilson’s hint at a new national confederation of states would not include the small state of New Jersey, which would never accept the proportional representation plan of American nationalism.
If representation was to be proportional, then some specific plan would have to be selected. On June 11, Roger Sherman proposed a significant compromise: that the House be chosen in proportion to the respective number of free persons, while the Senate consist of one vote per state. In this way, the lower house would be chosen on a national basis, elected by the people to their number, while the Senate would be chosen equally by the state legislatures.
Immediately, the issue arose of the kind of proportional representation in the lower house. John Rutledge and Pierce Butler urged representation proportional to the revenues supplied by each state; as Butler put it with unmatched candor: “money was power; and that the States ought to have weight in the Govt.—in proportion to their wealth.” By a vote of 7-3-1, the convention then affirmed some principle of representation for the lower house as opposed to equality of states; New York, New Jersey, and Delaware voted no, while Maryland was divided.
It was at this point that a fateful issue was injected into the proceedings: slavery. For if the proportion was to be according to population, the South wanted slaves included in the population figures. Wilson and Pinckney proposed that the proportion of each state in the lower house include every free person, including bond servants, plus three-fifths of all “other persons,” except Indians. Wilson’s excuse was that Congress had already recommended, and eleven states had approved, that revenue quotas under the Articles would be so apportioned—a specious argument, since levying taxes and granting representation are scarcely the same thing. In addition, “as Luther Martin told the Maryland legislature, taxing slaves discouraged slavery, while giving them political representation encouraged it.”5 At this juncture there was very little debate, and only Elbridge Gerry cogently pointed out that if the slaves were property, there is no more reason to represent them then the “cattle & horses of the North.” In the vote, the three-fifths clause was approved by no less than nine states to two, only New Jersey and Delaware, the champions of the small states, voting against.
The next order of business was the Senate. Roger Sherman, seconded by Oliver Ellsworth of Connecticut, made a very strong plea for each state to have one vote in the Senate. Implicitly adding Connecticut’s withdrawal threat to Delaware and New Jersey’s, Sherman warned that “Every thing he said depended on this. The smaller States would never agree to the plan on any other principle than an equality of suffrage in this branch.” It has been remarked that it was with this touchy issue of representation in Congress that tempers began to flare and withdrawals threatened. Yet, despite Sherman’s stringent plea, the vote for equal state voting in the Senate was rejected and a Wilson-Hamilton motion for the same method of apportionment as in the lower house was approved by the same closest of margins, 6-5. The votes were: for equal voting by states: Connecticut, New York, New Jersey, Delaware, Maryland; for proportional voting as in the House: Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia. In short, the small states and New York for equal voting; the large northern states plus the slaveholding South for the large-state nationalist plan of proportional representation.
We may now pause to consider the question: why did such smaller states as North Carolina, South Carolina, and the really small state of Georgia (and often joined by Maryland) take the large-state view, and also their victory? A Georgia or a South Carolina might be a nationalist for many reasons, but why generally a large-state nationalist? The answer is that these southern states, in which slavery played an integral role in the economy and society, expected the slave states to multiply in population and soon outweigh the North. Already the slave states were almost on a population parity with the predominantly free states. And the lands approximately ready for settlement were the Southwest, where Kentucky and Tennessee were already expanding rapidly, while the unsettled North was commanded by British army forts. Evidence of great expectations abounds; thus, James Madison wrote to Thomas Jefferson during the spring of 1787 that representation by population would be adopted because it would be “recommended to the Eastern States by the actual superiority of their populousness, and to the Southern by their expected superiority.” Both South and North agreed on the essentials of the question: later in the convention, George Mason would look forward to the day “as soon as the Southern & Western population should predominate, which must happen in a few years,” and Gouverneur Morris would concede the necessity of accepting the “vicious principle of equality” in the Senate “in order to provide some defence for the N. states” against a preponderance of southern and western power.6
After the crucial vote on representation in the Senate, the convention proceeded, by similar close majorities, to vote for referral of the new Constitution to conventions in the various states. Terms of appointment were decided for Congress, and in both cases the longest of the terms considered were chosen: three years for the lower house, and seven for the Senate. Madison led the fight from the nationalists for long terms, while Gerry argued for annual house elections to provide a popular check on their representatives.
The Committee of the Whole had now made up its decision on the Virginia Plan, and the nationalist triumph was seemingly complete. The committee made its report to the convention on June 13. The Virginia Plan had been essentially adopted whole. A supreme national government, the Congress of which could veto all state laws it considered unconstitutional and in violation of national treaties; a powerful single executive, chosen for a long term of seven years by Congress, with a nearly absolute veto power over Congress; a Supreme Court appointed by the Senate and a system of inferior federal courts authorized, which would be appointed by the president; a bicameral Congress, the lower house elected by the people on the basis of population including three-fifths of slaves, and an upper house selected by state legislatures on the same basis; the Constitution to be submitted to state conventions after approval by Congress; all this symbolized a total smashing large-state nationalist victory. The voting, especially in the close small- versus large-state conflict, had been made possible by the absence of two small states from the convention: Rhode Island, which refused to attend, and New Hampshire, whose delegates had not yet arrived.
But the small-state nationalist bloc, albeit joined with the liberals, had only begun to fight. To block the acceptance of the Virginia Plan Report on June 15, William Paterson outlined the contrasting New Jersey Plan. This last-ditch measure was successful in blocking ready acceptance of the Virginia Plan Report of the thirteenth, and both plans were now referred back to the Committee of the Whole.
The New Jersey Plan had been drawn up by a bloc of members of full delegations from New Jersey and Delaware, who were small state nationalists, and Connecticut and New York, who were liberals and moderates. The Plan’s main difference from Virginia’s was that, while it gave greatly increased power to the federal government, it at least tried to maintain the semblance of a confederation, and it gave the smaller states a voice in that confederation. Instead of the Virginia Plan’s bicameral legislature, the New Jersey Plan stuck with the current confederation’s unicameral legislature, and each state had only one vote. The federal government also had no veto power over state legislation. There was a federal judiciary and a plural federal executive, and while the latter had no command of the army, it had the power to “call forth” the confederation and “enforce and compel an obedience” to congressional laws and treaties.
It was at this point that Alexander Hamilton decided to get into the act. Outnumbered on his own delegation, Hamilton was, rather surprisingly, not playing a leading role in a convention he had been instrumental in promulgating; and besides, from his extensive position on the ultra-right he was getting restive at the meager concessions to liberals that he saw being made. Hence, with more than one constitutional plan now being offered, on June 18 Hamilton presented his own. Reviewing briefly the history of federal unions (Greece, Germany, Switzerland), Hamilton quickly concluded that federalism was hopelessly weak and ineffective, and that therefore “we must establish a general and national government, completely sovereign, and annihilate the state distinctions and state operations.” Deploring even republicanism in itself, Hamilton pointed uncritically to the British monarchical government as the model for American framers to follow. Attacking the masses of the people as “turbulent and changing” and filled with fervor, Hamilton called upon the convention to give to the few who “are the rich and the well born” a permanent share in national power. In a bizarre non-sequitur, Hamilton maintained that making the rich and well-born into a national ruling class would most assuredly give them a vested interest in the system, and “they therefore will ever maintain good government.” Only such a permanent ruling class could “check the imprudence of democracy.” Indeed, no democratically elected executive, even as conservative a one as under the Virginia Plan, can be of any value; only the British-style executive will at all suffice. The nationalistic Virginia Plan in general did not go far enough in increasing the power of the government, for it was “but pork still, with a little change of the sauce” [italics in original]. Pushing for what was in effect an elective, powerful monarchy, Hamilton called for a national executive elected for life, and one, moreover “who dares execute his powers”; the executive to be elected remotely from the public by electors chosen in the various states. Hamilton also urged a Senate elected for life, also independently by electors.
In Hamilton’s dream state, there were to be no restrictions whatsoever on the absolute power of the central government. The Congress was to have “the unlimited power of passing all laws without exception” [italics in original], and the executive to have absolute veto power. Also, an executive office in each state would be appointed by the president with absolute power to veto all state laws, and all militia officers were to be appointed by the national government. In addition to a Supreme Court, Congress was to appoint inferior courts in every state “so as to make the state governments unnecessary.” Alexander Hamilton had conclusively described the matter for his dream state—his ideal polity—and no clearer blueprint could have been devised for absolute despotism.
Significantly enough, one of the reasons given by Hamilton in the alleged necessity of replacing the Confederation with a strong national government was the weaknesses of the war power. Under the Confederation, the military was weak “and it is evident they [the Confederation] can raise no troops nor equip vessels before war is actually declared.” It has often been insisted that one of the major impulses behind the nationalist drive was a desire to replace the foreign policy of the United States under the strictly limited government of the Confederation with an aggressive foreign policy along the model of all Great Powers.
The Hamilton speech struck the members of the convention with the force of a thunderclap. To the liberals and moderates, this was the corporeal embodiment of their fears of the nationalist designs. To his fellow counterrevolutionaries, Hamilton’s candor was a terrible indiscretion, a mighty embarrassment, the imprudent revelation of all their fantasies they knew could not be achieved. As Professor Miller writes: “With good reason, therefore, Madison exclaimed that Hamilton was up to his old trick of letting the cat out of the bag; and this time the cat was a particularly ugly specimen that seemed quite capable of breaking up the Convention.” Madison and Wilson rushed to denounce Hamilton’s plan, both of them hyperactively assuring everyone that they were deeply devoted to preserving the rights and powers of the states, these absolutely necessary institutions. Hamilton himself added that he did not exactly want to abolish the states altogether, only to make them mere administrative subdivisions of the national government—hardly an explanation calculated to soothe the feelings of the moderates. Only the highly conservative George Read, of all the delegates, subscribed with enthusiasm to Hamilton’s idea; indeed, he went even a step further to urge the obliteration of even the states as administrative subdivisions, and then representation by eventually new administrative districts. The nationalist disapproval, however, killed the Hamilton Plan completely.
The convention’s Committee of the Whole turned to consider the New Jersey Plan. James Madison delivered the large state nationalist attack, e.g., a newly revised Articles would not prevent the states from violating national treaties, would not ensure good state laws, and did not supply sufficient force to suppress state insurrections such as Shays’ Rebellion. After Madison’s speech, on June 19 the convention voted 7-3-1 to reject the New Jersey Plan in favor of the agreed Virginia Plan. Voting to scrap the New Jersey Plan for the Virginia Plan: Massachusetts, Connecticut, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia; voting against scrapping: New York, New Jersey, Delaware; Maryland was divided. The Virginia Plan was now before the full convention as the basis for further work. Each clause of the Plan would now again be taken up in turn.
On the initial first clause of the Virginia Plan: to establish a “supreme national government,” Wilson, Hamilton, and King argued in favor, Wilson being careful to absolve himself from Hamilton’s design. Luther Martin of Maryland cogently set forth the state-sovereignty position:
the separation from G. B. placed the 13 States in a state of nature towards each other; that they would have remained in that state till this time, but for the confederation; that they entered into the confederation on the footing of equality; that they met now to amend it on the same footing, and that he could never accede to a plan that would introduce an inequality and lay 10 states at the mercy of Va. Massts. and Penna.
To this argument, Wilson and Hamilton replied with another one of their ingenious fancies: that somehow the Declaration of Independence meant that the states became independent first as united and not as separate entities. As a semantic concession to the moderates, proposed by Oliver Ellsworth, the word “national” was replaced throughout by “the United States.” But the supremacy of the central government—the real point of this clause—remained.
The next point was a bicameral Congress, and here the liberal-moderate bloc counterattacked strongly, a remarkable development, since at the end of May this clause had passed almost unanimously in the Committee of the Whole. On behalf of the Confederation, John Lansing of New York moved that Congress shall consist of a single body. George Mason of Virginia delivered a speech against, but Lansing was supported by Roger Sherman and Luther Martin. The vote on June 20 was surprisingly close, and Lansing’s motion for a unicameral Congress was defeated by only 4-6-1 (Yes: Connecticut, New York, New Jersey, Delaware; No: Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia; Divided: Maryland). The bicameral clause was adopted the next day by 7-3-1 (Connecticut switching its vote from the day before).
Next came the question whether the lower house of Congress would be elected by the people. Charles Cotesworth Pinckney of South Carolina led the attempt to throw out this clause and revert to the election by the state legislatures. Hamilton led the defense of this key part in the nationalist program. But only Connecticut, New Jersey, and Delaware joined South Carolina in supporting election of the lower house by the state legislatures. And only New Jersey (with Maryland divided) held out to the last against popular election of the lower house. The convention did agree, however, to lower the congressional term from three to two years.
The next clause of the Virginia Plan was the selection of the Senate by the state legislatures—one of the few concessions that the nationalists had been forced to make in the Committee of the Whole. Until now the division of the states had not precisely been small versus large; it had rather been the South plus the two large states of the North (Massachusetts and Pennsylvania) against the smaller states of the North. Now, on June 25, came the first purely sectional split of the convention. A motion to postpone consideration of the Senate until the three-fifths clause of representation in the House was settled mobilized the five slave states (the South from Maryland to Georgia) in favor of postponement, and the six northern states opposed. The nationalists, led by James Wilson, launched an assault to reverse their concession and elect the Senate by electors chosen by people in the several states. The convention, however, voted overwhelmingly to keep the concession of election by state legislatures; only the ultra-nationalist delegation from Pennsylvania and Virginia voted no.
The term of senators was then taken up; the moderates arguing for a shorter term than seven years to provide a popular check on the senators, and the reactionaries arguing for longer terms for the opposite reason. In a sense, the debate turned not so much on whether the proposed term should be lengthened from seven years to nine, or down to six or four, as to where the major threat to liberty laid. Madison, leading the nine-year proponents, trumpeted again on his formulaic theories and warned of the evils of majority rule, specifically the suffrage of the mass of the poor. In short, Madison and his nationalist cohort saw the main danger to liberty in the people and wished to build up an even stronger oligarchical rule in central government to exert power against the menace of the people. In this aim, Madison was backed by Wilson and Read, while Hamilton and Gouverneur Morris argued life terms for the senators. On the other hand, the liberals located the major threat to liberty precisely in the oligarchical threat the nationalists were happy to fasten over the people; the way to guard against the danger of government was to weaken the oligarchy and bureaucracy and multiply popular checks upon the rulers. Here, indeed, was the basic political issue between Left and Right in the United States. Thus, Roger Sherman, in the course of this debate, eloquently declared: “Govt. is instituted for those who live under it. It ought therefore to be so constituted as not to be dangerous to their liberties. The more permanency it has the worse if it be a bad Govt. Frequent elections are necessary to preserve the good behavior of the rulers.”
James Wilson, in his speech for lengthening the Senate terms, raised an interesting point, for it showed the importance that the nationalists gave to foreign affairs and to an aggressive foreign policy designed to aid merchants in pursuing their trade. Wilson asserted that since the Senate will have the power to make wars and treaties, “it ought therefore to be made respectable in the eyes of foreign nations. The true reason why G. Britain has not yet listened to a commercial treaty with us has been, because she had no confidence in the stability or efficacy of our Government. 9 years with a rotation, will provide these desirable qualities.”
After hearing the importance of the various arguments, the actual voting was another climactic event: the convention voted not to extend Senate terms to nine years and to cut the term to six. Only Pennsylvania and Virginia, joined by Delaware, voted to extend; to cut to six years, many nationalists decided to vote for, while four states (New York, New Jersey, South Carolina, Georgia), held out for a still shorter term. The decision for six years scarcely differed from the reported Virginia Plan.8
It was on June 27 that the convention reached the most fateful point of all, on which acrimony had spread and walkouts had been threatened: the apportionment of voting in the two branches of Congress. Luther Martin led a lengthy assault on proportional representation in the lower house. The separate states were still sovereign, said Martin, and had not abdicated; furthermore “an equal vote in each State was essential to the federal idea.” Acrimony over the debate mounted so alarmingly that Benjamin Franklin, at one point, frantically called for a turn to religion and prayer to seek a solution. At one point in the debate, on June 29, Dr. William Samuel Johnson of Connecticut resurrected a compromise made earlier by his Connecticut colleague Roger Sherman: that the upper house of Congress have equal representation by each state while the lower house be elected by proportional representation. But Madison, Hamilton, Gerry, and the nationalists would have none of this. Madison declared frankly that “the states ought to be placed under the control of the general government—at least as much so as they formerly were under the king and British parliament.”
Finally, in one of the fateful votes of the convention, the body voted on June 29 to establish suffrage in the lower house by some proportionate ratio and not by the equality of the Articles of Confederation. The vote was very close: 6-4-1 (Yes: Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia; No: Connecticut, New York, New Jersey, Delaware; Divided: Maryland). Once again the lineup was Massachusetts, Pennsylvania and the South against the rest.
The convention now came to an issue even more crucial than the previous one: the pattern of representation in the Senate. Until this point, the Virginia Plan as represented by the Committee of the Whole had been scarcely changed in any respect; but now the frantic liberals, moderates, and small state nationalists opened a desperate assault on the plan’s selection of senators also by proportional representation. Oliver Ellsworth of Connecticut made a strong plea for equality of voting as basic in the Connecticut Compromise scheme, and he trenchantly warned that no state north of Pennsylvania but Massachusetts would accept proportional representation in both branches of Congress. But the large-state nationalists were brutally adamant. James Wilson took the tactic that this separation of the states might just as well be made. Sneering at the states and their very existence, Wilson refused to accede to such a supposedly pernicious system of representation where a minority could rule the majority. Wilson, however, did use the effective argument that governments were made for men, not for “imaginary beings called States.” While joining Wilson in worrying about the rights of the national majority being destroyed by a minority, Madison added a shrewd, if overdrawn, point: the real struggle was not so much small state versus large but “by other circumstances … principally from [the effects of] their having or not having slaves. … the great division of interests in the U. States. … did not lie between the large & small States: It lay between the Northern and Southern …”
For his part, Rufus King of Massachusetts threatened a breakup of the convention and declared his absolute refusal to come under a government founded in a “vicious principle of representation” (i.e., equality of voting by states). Jonathan Dayton of New Jersey promptly attacked King’s argument, and Luther Martin of Maryland insisted that he could never accept federation on an unjust principle (inequality of voting).
The small state leader Gunning Bedford of Delaware then asserted “that there was no middle way between a perfect consolidation and a mere confederacy of the States.” Bedford also insisted that the large-states bloc include those states that would soon become large: Georgia, South Carolina, and North Carolina. The large states, Bedford pointed out, were trying to oppress the small, and their power will be abused. Bedford trenchantly declared “I do not, gentlemen, trust you. If you possess the power, the abuse of it could not be checked; and what then would prevent you from exercising it to our destruction?” [italics in original] Bedford concluded with a counter-threat of his own. Should the large states separate from the small, then “the small ones will find some foreign ally of more honor and good faith, who will take them by the hand and do them justice.” Never had the convention been closer to permanent split and dissolution, which now seemed imminent. At this point, Alexander Hamilton, discouraged, his plan dismissed and his vote continually overruled in his own delegation, left for home.
On July 2 Ellsworth moved that each state be allowed one vote in the Senate. On this crucial vote, the convention split evenly, 5-5-1. Voting yes: Connecticut, New York, New Jersey, Delaware, Maryland; No: Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina; Georgia was the surprise, it divided between Abraham Baldwin “aye” and William Houston “nay.” In a very real sense, it was this young western-Georgia lawyer Baldwin who saved the Constitutional Convention and the new Constitution, for without his switch vote, the equality of the states would have lost, the small states would have walked out, and the Constitution would not have been formed or, if formed, never ratified.
At this point it should have been clear that the alternative was either something like the Connecticut Compromise or dissolution. Yet the supposedly level-headed practical framers and moderates of the convention: Madison, Wilson, Washington, and Hamilton, were bitterly opposed to any such compromise as destructive of their basic nationalist design. General Charles Cotesworth Pinckney of South Carolina moved to create a committee from each state to propose a compromise. Not only did the nationalists lose in their opposition to Pinckney’s proposal; but the composition of the committee spelled an anti-large-state nationalist triumph. Of the members, only Elbridge Gerry of Massachusetts was a moderate large-state nationalist, while the committee included such staunch small-state leaders as William Paterson, Gunning Bedford, and Oliver Ellsworth; liberals such as Luther Martin and Robert Yates; and such compromisers as Abraham Baldwin of Georgia, William Davie of North Carolina, John Rutledge, George Mason, and Benjamin Franklin. No such major ultra-nationalist leaders such as Madison and Wilson were included on this committee.
The committee had been handed the problem of representation in both the Senate and House, and on July 5 it delivered its report. The committee recommended equal voting by states in the Senate and proportional voting by population in the House, and one congressman for every 40,000 people, including three-fifths of the number of slaves, with a minimum of one representative for each state. Here indeed was a threat to the large-state nationalist bloc, for their cherished principle of proportional representation in both houses was abandoned. In the height of this blow, the committee’s concession of allowing the House to originate all money bills and leaving the Senate unable to amend them was scarcely any consolation to their designs.
To this compromise, the large-state nationalists were adamantly opposed, and Madison launched the attack with a bitter rejection of “departing from justice” by granting equality in the upper house. Madison made clear that he would rather split the Union and form a separate nation with the large states and simply let the small ones exist as best they could. In this, Madison displayed not the broad flexible nature of the compromiser that has often been attributed to him, but rather the rule-or-ruin tactician of the hardline ultra-nationalist who settled for nothing less than total victory and was willing to see the Union dissolve rather than give up his program.
Gouverneur Morris of Pennsylvania was even blunter. Grandiosely designating himself as a “Representative of the whole human race,” Morris urged the large states to go ahead heedless of the public opinion, which “could not be known” anyways, and the smaller states would have to go along, whether by persuasion or by force. For “this Country must be united. If persuasion does not unite it, the sword will.” Returning to the attack in a second speech, Morris thundered that the compromise failed “to protect the aggregate interest of the whole.” In particular, contended Morris, “he had seen no [provision] for supporting the dignity and splendor of the American Empire.” For the states, Morris would just as soon see “all the Charters & Constitutions of the States … thrown into the fire, and all their demagogues into the ocean.” James Wilson joined his fellow nationalists in demanding their version of “justice and right,” while Gerry and Sherman argued meekly for compromise, and small-state nationalist William Paterson was more impressive in opposing the large-state nationalists.
In the midst of the debate, the convention entered a complex and equally significant and bitter struggle over the lower house of Congress. If it was argued that representation there would be proportional, the next logical question was: proportional to what? Gouverneur Morris now moved to push the convention into an even more reactionary stance than what had been reflected in the Virginia Plan: to make representation proportional not only to the number of people, but also to wealth. Morris conjoined wealth and power and maintained that life and liberty were not nearly as important as property. Life and liberty, he speciously declared, were better defended in the “savage State”; the purpose of society and government was only to secure property. Therefore property had to be represented in government. Morris also brusquely declared that the Atlantic states should be secured in a fixed domination over the national government over new and future western states. Morris was supported in this call for dominance by wealth and seacoast by King, Gerry, and the South Carolina coastal planter delegation.
This question was referred to a committee of five, headed by Morris, which reported on July 9 for apportionment by wealth and number. The committee proposed an initial House based vaguely on such an ambition, and warned that the Virginia Plan’s apportionment of one representation for every 40,000 would make Congress too large and would soon give dominance to the western states. The committee recommended that western representation be doled out “in safe proportions.” To replace these vague injunctions, a new committee under Rufus King was appointed, which recommended an apportionment based on the three-fifths slave clause, and even more than three-fifths for slaves. The slavery issue was by now in the thick of the debate over representation in the lower house, and here North and South squabbled bitterly. King declared that “he was fully convinced that the question concerning a difference of interests did not lie where it had hitherto been discussed, between the great & small States; but between the Southern & Eastern.” Therefore, he had been ready to make concessions in the proposed national apportionment to the South, concessions which some in the South, such as Charles Cotesworth Pinckney, did not think sufficient. The northern surrender to the slave states was at the heart of the new American Constitution, and the concession on House apportionment was one of the crucial elements in that surrender. King, at the heart of this concession, was later to declare that the three-fifths clause “was, at the time, believed to be a great one, and has proved to have been the greatest which was made to secure the adoption of the Constitution.” In a speech at the convention, King shined great light on the reason for this meek submission to a system which everyone in the North abhorred. The reason was economic interest: “If the [Northern states] expect those preferential distinctions in Commerce & other advantages which they will derive from the connection they must not expect to receive them without allowing some advantages in return.”
At the same time William Paterson attacked the very idea of slave representation: slaves are only property of the masters, they have no free choice or personal liberty, and consequently are not represented in the southern state legislatures: so why then in the Congress? Furthermore, this would constitute an encouragement to the slave trade. In a reply, Madison cynically suggested his own pro-large-state, pro-slave-state “compromise”: that the House represent all free people in proportion to their number, and that the Senate represent the nation in proportion to everyone, free and slave.
The King Committee suggestion was agreed to on July 10, by 9-2, only South Carolina and Georgia holding out for even more concessions to slavery, while the other southern states were already content with the apportionment concession. But now the future, as well as the initial allocation of votes in the lower house, had to be decided. Accordingly, Edmund Randolph of Virginia and Hugh Williamson of North Carolina suggested the next logical step: that federal censuses be taken periodically on the population of the various states, and that apportionment in the House be periodically updated to account for free white inhabitants plus three-fifths of the slaves.
This was no more than the logical step, but for some reason now the northern consciences began to balk. Of course, this balking was prodded by the universal expectation that southern slave-state population would continue in the future to expand, and at a much faster pace than the North; thus, periodic revision would mean accelerating southern predominance in the national government. But now the arguments of the beleaguered northerners could only be very weak indeed. The only thing they could say was that the Congress, in its wisdom, should be free to set its own representation (e.g., Sherman, Gouverneur Morris), and this was clearly unsatisfactory. And Morris’ remonstrance was highly unbearable to the demagoguery of James Madison, for here was Morris urging representation by population, yet trying defiantly to weaken future representation of the southern-western population! Madison frankly declared that Morris must have “determined the human character by the points of the compass.”
The Randolph-Williamson census plan was subject to two amendments from the Right. The ultra-slavery forces, headed by Pierce Butler and Charles Cotesworth Pinckney, demanded equal representation for slaves and free men, a proposal beaten down on July 11 by 3-7. The only states in favor were Delaware, South Carolina, and Georgia. New York’s Lansing and Yates had left the convention for good the previous night, in disgust at the agreement for proportional representation in the House, and charged it was a nationalist conspiracy they would have nothing to do with. This was one of the great fateful errors at the convention, for while they were there, the New Yorkers had much to gain and nothing to lose by staying in the convention. They could have used their state’s vote to weaken the Constitution’s power as much as possible and then refuse to sign it at the end. The loss of New York deprived the liberal Antifederalists of what little precious vote they had at the convention.
The next move from the Right was John Rutledge’s motion to put wealth back in as a factor in representation along with number, a motion frankly designed by Rutledge to suppress the potential rise of the western states. Rutledge’s plan lost by a tie vote of 5-5 (South Carolina and Georgia being joined by Massachusetts, Pennsylvania, and Delaware; staunchly opposed were Connecticut, New Jersey, Maryland, Virginia, and North Carolina).
The convention then agreed, by a margin of only 6-4, that a periodic census should be made of the free inhabitants; then came the vital three-fifths clause for slaves, and on this fateful vote the three-fifths clause was defeated by 4-6. For this clause were all the southern states except South Carolina, holding out for parity, and including Connecticut, were willing to compromise; opposed were all the northern states and Maryland. It now looked as if the convention would fall apart on both issues of representation in the Senate and the House.
The next day Gouverneur Morris softened the blow of representation by population and wealth by requesting that direct taxation (e.g., land and poll taxes) be in proportion to a state’s representation. This apparent softening, however, also meant that the poorer and soon more populous western states would be reluctant to claim their full representation because it would subject them to greater taxation. At this point William R. Davie of North Carolina bitterly attacked the elimination of the three-fifths clause and threatened a walkout if slaves were not to be represented by at least three-fifths in the Congress. Davie proposed a light slap at the slave states by imposing direct taxation in proportion to a state’s representation, in order to win back the three-fifths clause. The new climate of opinion, led by Ellsworth of Connecticut, managed to reverse the convention’s decision, and on July 12 it approved the three-fifths rule, including the direct-taxation clause. The vote for the whole clause, including the three-fifths rule, was now 6-2-2 (Pennsylvania and Maryland’s vote switched from no to yes, and South Carolina and Massachusetts from no to divided).
Now that the South had won on the three-fifths clause, there was no need to insert a wealth clause for representation; indeed, the coming western slave states were expected to be relatively poor. The large-state nationalists like Randolph, Madison, and Wilson had always opposed anything but population as the standard for representation, and the convention unanimously agreed to drop wealth (only Delaware was divided) and return to the original Virginia Plan of apportionment by population only (including three-fifths of slaves) and updated by periodic censuses. Gouverneur Morris, resisting to the end the elimination of wealth as a factor in representation, threatened breakup of the convention and a separate northern confederation. Above all, the basis of mere population led Morris to adopt the “vicious principle of equality” of voting in the Senate to protect the supposedly eventual smaller population of the North against southern and western discrimination.
Attention returned to the problem of the Senate, on whether to accept the previous vote of equality of votes in that branch. With Luther Martin of Maryland and Jonathan Dayton of New Jersey adamantly insisting on equality, the provision was counterattacked bitterly by Wilson, Madison, King, and Pinckney. King reflected the large-state nationalists’ vehemence in urging this offense to “justice” and declared that “he preferred the doing of nothing, to an allowance of an equal vote to all the States,” and Wilson and Madison maintained similar views. Madison also raised the point that states’ equality would benefit the relatively smaller-state, non-slave North as against the slave South.
Finally, on July 16 the convention voted on the Senate problem; in a very close vote, equality of state voting in the Senate was approved by 5-4-1. Voting for state equality: Connecticut, New Jersey, Delaware, Maryland, North Carolina; opposed: Pennsylvania, Virginia, South Carolina, Georgia; Massachusetts was divided, Gerry and Caleb Strong for, King and Nathaniel Gorham, no. The Connecticut Compromise was barely approved.
Thus were the climactic struggles over representation in the federal government decided, and state equality in the Senate was the very first vote in which the original Virginia Plan was significantly attacked. The large-state nationalists were incensed by this single rebuff, and some wanted to walk out and form their own nationalistic constitution, but they finally decided to stay in the convention. It was now time to turn from the problems of representation in the central government to the question of the substantive powers of that government.9
- 5. Staughton Lynd, “The Abolitionist Critique of the United States Constitution,” in Martin Duberman, ed., The Antislavery Vanguard (Princeton, NJ: Princeton University Press, 1965), p. 217.
- 6. Ibid., pp. 230–32.
- 8. [Editor’s footnote] For more on Rothbard’s views regarding short terms and compulsory rotation, see Murray Rothbard, “Bureaucracy and the Civil Service in the United States,” Journal of Libertarian Studies (Summer 1995): 16–28; Rothbard, Conceived in Liberty, vol. 4, pp. 1239–43; pp. 125–29.
- 9. [Editor’s footnote] Farrand, The Records of the Federal Convention, vol. 1, pp. 177–78, 245, 261, 297–99, 301–06, 324, 423–26, 437, 471, 483–91, 504, 527–33, 552–66, 604; Max Farrand, The Records of the Federal Convention, vol. 2 (New Haven, CT: Yale University Press, 1911), p. 7.
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