The Founding Fathers: a Conserving Caucus in Action

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The Founding Fathers: A Conserving Caucus in Action

George W. Carey Georgetown University

Greg Weiner Assumption College, [email protected]

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Recommended Citation Carey, George W. and Greg Weiner. "The Founding Fathers: A Conserving Caucus in Action." Modern Age vol. 56 no. 1 (Winter 2014): 29-41. https://home.isi.org/founding-fathersbr-conserving-caucus-action.

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THE FOUNDING FATHERS a conserving caucus in action

George W. Carey and Greg Weiner

everal fine and highly readable accounts provides a context for a better understanding Sof the Philadelphia Constitutional Con- of the dynamics of the Convention, how vention have appeared over the decades. differences of interest and theoretical persua- What characterizes most of these works—as sion were reconciled, and why the Constitu- well as, we should add, the countless articles tion took the form it did. Such is the case, dealing with the Convention—is their focus to take the most dramatic example, with the not only on the delegates, their backgrounds well-known account of the “large state, small and views, but also on the conflicts that state controversy” that almost resulted in the arose between them during their delibera- breakdown of the Convention. tions. Perhaps most prominent among these Yet this portrait of the Philadelphia Conven- readings is John Roche’s seminal essay “The tion as a “reform caucus” overlooks the con- Founding Fathers: A Reform Caucus in siderable extent to which the delegates were Action,” which casts delegates to the Con- constrained by, and therefore only relatively vention as politicians rather than as theorists modestly modified, long-established political and emphasizes their employment of com- forms in use in the American colonies and promise to overcome conflict.1 The result, states for decades. This is to say, they showed Roche writes, is that “the careful observer of an inclination to follow John Dickinson’s the day-to-day work of the Convention finds admonition, “Experience must be our only no over-arching principles.” Such principles guide. Reason may mislead us.”2 In this sense, as appear to exist, he suggests, were retro- the Convention was less a reform caucus than spective justifications applied to the products a conserving one. Indeed, while it is undeni- of compromise. This focus is quite under- ably true that the delegates were skilled at standable, if for no other reason than that it the art of compromise, the Convention was

George W. Carey (1933–2013), a longtime contributor to Modern Age, was one of the foremost authorities on the political theory of the American Founding. His voluminous writings included Basic Symbols of the American Political Tradition (with Willmoore Kendall), The Federalist: Design for a Constitutional Republic, and In Defense of the Constitution. He taught at Georgetown University for more than fifty years. Greg Weiner is assistant professor of political science at Assumption College in Worcester, Massachusetts, and the author of Madison’s Metronome: The Constitution, Majority Rule, and the Tempo of American Politics.

29 MODERN AGE WINTER 2014 also characterized by a remarkable degree of up to the Revolution, that which Friedrich consensus on fundamental matters of gover- von Gentz identified as a “lack of abstract nance. This consensus reached not merely the theory.”3 On Gentz’s showing, the American republican underpinnings of the regime but Revolution, quite unlike the French, could also several particulars as to its form, such as even be considered reactionary, since the bicameralism and the separation of powers. colonists sought a return to the conditions Roche correctly notes that the framers were that prevailed during the colonial period of not abstract theorists, but they were theo- “salutary neglect.” retically sophisticated. The general absence of We do not mean to suggest that the framers abstract theory in their debates may largely were copycats. Clearly this was not the case. reflect the fact that few fundamental theo- Nor could it be, given the need to address the retical issues were in dispute; on the contrary, delicate issues surrounding federalism and such conflicts as did exist pertained largely to what the role of the states in the structure the best practical means of realizing ideals on and processes of the new government should which the overwhelming proportion of del- be, matters about which the political tradi- egates agreed. The sheer magnitude of the task tion was largely silent. Moreover, they looked before the delegates—that of uniting inde- upon their political institutions and tradition pendent and largely sovereign states under with a critical eye, acknowledging the fail- one government—would probably have been ures and weaknesses of state constitutions. impossible lacking a consensus on the basic In this sense, the prior experiences indicated principles of governance. Moreover, given the what avenues should not be traveled, or they speed with which the Convention completed pointed to potential dangers in some of the its work, this consensus clearly had to embrace institutional or procedural arrangements a number of concrete matters of governance, set before the Convention. Yet, as even this principally those relating to the procedures “negative” role reveals, the political tradition and structures of government necessary for served to establish crucial parameters in the the realization of the basic principles. debates and deliberations of the Convention; Equally important, a major source of this that is, it not only provided the common consensus, we believe, is to be found in the grounds and shared experiences for a mean- American political tradition, starting with ingful exchange of views; it also limited the the principles and practices of government range of potential alternative arrangements stretching back to the earliest colonial the framers would consider. times. Prior forms provided the basis of This consensus reached a remarkable array broad consensus and set practical boundar- of issues that covered virtually the full range ies to the options available to the framers. of questions political theorists might ask Consequently, the most important areas of about a new regime, including its form— consensus did not need to be “arrived” at republican—and such institutional arrange- or achieved by compromise to begin with; ments as separation of powers. The Virginia they were supplied by experience. To put Plan, the template on which the Conven- this otherwise, if we place the Philadel- tion’s deliberations were based, supplies a phia Convention and its handiwork into a compelling example. Virtually every feature broader historical perspective, we encounter of it that received serious consideration by again a trait in the American political tradi- the delegates can be clearly traced to prior tion that was evident in the period leading forms. The plan of a lower house electing an

30 THE FOUNDING FATHERS: A CONSERVING CAUCUS IN ACTION

upper house—famously attributed to James spoke admiringly on June 2 of the British Madison’s study of David Hume4—in fact system, but hastened to add that a “limited appears in the colonies as early as the Fun- Monarchy however was out of the question.” damental Orders of Connecticut and in the Hamilton, for his part, was sufficiently self- postrevolutionary constitutions of Georgia conscious about his British-style proposal on and South Carolina, as well as in Charles June 18 that he had to beg “Gentlemen of Pinckney’s draft of a national plan of govern- different opinions [to] bear with him” on the ment.5 Its commitments to bicameralism subject. and establishment of three separate branches To be sure, disagreement over various of government, as will be seen below, mir- aspects of these principles and how best they ror nearly the entirety of state constitutions. could be secured was substantial, though The Council of Revision, comprising rep- nowhere near as intense as that over a range of resentatives from the executive and judicial issues surrounding federalism (for example, branches, was based on a similar institution what the role of the states should be in the in New York. Only the national negative on central government, the extent of national state laws could be called innovative, yet this power vis-à-vis the states)—the one issue, measure pertained largely to federalism and again, on which the tradition provided the was, in any event, less a source of controversy least guidance. Nevertheless, the delegates— at the Convention than a simple nonstarter all of whom at least acknowledged the that never stood a serious chance. need for a stronger national government— Similarly—and in stark contrast to the recognized the necessity of tackling these many historical accounts that emphasize the issues. In relatively short order, consensus possibility that abuses of popular rule might on these matters produced an understanding drive the nation to monarchy—the delegates that the Articles of Confederation had to evince an almost unanimous consensus that be abandoned, that the Convention would the new government would not only be have to ignore that part of their instructions republican but would also tilt toward the officially authorizing the Convention “for populist end of the republican spectrum. the sole and express purpose of revising the Once the decisive question of whether the Articles of Confederation.” Thus, in several new regime would operate on individuals key areas of the Convention’s work, we can was settled, no one questioned that its center see broad consensus bounded by experience: of gravity would be a lower house elected by Abandonment of Articles and Scope of the people for relatively brief terms. Indeed, National Powers. The introduction of the given the paucity of evidence to the contrary, Virginia (or Randolph) Plan on May 29, it is difficult to see how the idea that republi- just the third working day of the Conven- canism was in danger ever took such a strong tion, was a clear indication that the Articles hold on the historiography of the found- of Confederation would be scrapped. This ing. The Convention never considered any plan abandoned the defining character- regime other than republican; and, indeed, istics of the confederate model: its key so prevalent was the consensus in favor of the institution—the “prime mover,” so to speak, republican form that the rare comments rais- within the system—was a popularly elected ing concerns about that prospect are notable lower chamber of a bicameral legislature, chiefly for the almost bashful tone of apology with its representation proportioned among that attended them. Dickinson, for example, the states according to population, and its

31 MODERN AGE WINTER 2014 laws operating upon individuals rather than to be a potential problem, as indicated by the states. To be sure, there were some who Paterson’s proposal to empower the national believed that the Convention, in deliberating government to enforce the collection of taxes on the Virginia Plan, was going beyond its within the states. mandate from Congress or the instructions The differences in institutional forms, to of their state legislatures. On May 30, for be sure, were no small things, but we can also instance, George Read of Delaware points see that the authority accorded to the national out that “deputies from Delaware were government by both the Virginia and New restrained by the commissions from assent- Jersey Plans reflects a remarkable degree of ing to any change of the rule of suffrage” consensus within the Convention on mat- from that of equality of state representation. ters that would, in the ratification debates, The major assault on the Virginia Plan comes prove highly controversial. It would not be on June 9 from William Paterson, who goes an exaggeration to say the plans agreed on all beyond charging that the Convention was the important questions of authority. While acting beyond its legal authority in abandon- other features of the New Jersey Plan—for ing equal state representation to maintain- example, those relating to the judiciary and ing that such abandonment would not be plural executives—were not likely to gain endorsed by the people. much support in the Convention, the most Paterson’s remarks, as well as his introduc- notable and controversial provision was for a tion on June 15 of the Small State or New Jer- unicameral legislature with equality of state sey Plan as an alternative to the Virginia Plan, representation; that is, the retention of the however, must be placed in context. In many Congress established by the Articles with ways, his plan conformed to the Convention’s even more extensive responsibilities. That official mandate simply to alter the Articles, Paterson would advance such a proposal in although, taken as a whole, these alterations light of what had already transpired is, we were substantial. For instance, it did go a long believe, best understood as taking an extreme way in meeting the objectives of those who position to establish a “bargaining” stance wanted a stronger union, such as that envi- from which a compromise could be secured sioned in the Virginia Plan, by granting the that would embrace proportional representa- central government taxing powers and control tion in one chamber and equality of state over interstate and foreign commerce, and by representation in the second. Moreover, providing as well that its laws would be the Paterson’s plan did not reflect any theoreti- “supreme law of the respective States.” This cal hostility to bicameralism: if the Congress scope of federal powers extended to most of was going to continue to serve as essentially the same areas in which the Virginia Plan pro- a diplomatic body, the theoretical need for posed to empower the national government. a second chamber dissipates. In any event, It did not, to be sure, include farther-reaching only two days—largely consisting of wither- ideas such as Madison’s national negative on ing critiques by Wilson and Madison—are state laws. But the important point to observe devoted to a discussion of Paterson’s plan. is that the divisions between the two per- The abandonment of the Articles is rendered tained not to the scope of federal powers but official on June 19 by a vote of 7–3, with the rather to the institutional forms necessary to Maryland delegation divided, to abandon ensure that the states did not encroach on the further consideration of the Paterson Plan national regime—a possibility all understood and return to a consideration of the Virginia

32 THE FOUNDING FATHERS: A CONSERVING CAUCUS IN ACTION

Plan as “altered, amended, and agreed to.” So prevalent was Montesquieu’s authority The issue of representation in the second on this matter—he has been rated as the chamber, however, remained and would most often cited theoretical figure on the prove troublesome. American shores during the era7—that any The Separation of Powers. In Federal- departure from the principle of separation of ist No. 47, Madison writes of separation powers would have required clear justifica- of powers that “no political truth is . . . of tion. It is the absence of such commentary, greater intrinsic value, or . . . stamped with not the presence of it, that proves the extent the authority of more enlightened patrons of of consensus on this principle. liberty.”6 A survey of the state constitutions Thus, it is not surprising that the Virginia adopted after the Declaration of Indepen- Plan embraced the separation of powers, dence would seem to bear out Madison’s even though Madison himself would come appraisal. Of the six states that prefaced their to regard its protections for the principle as constitutions with a statement or declaration insufficient. That the Paterson Plan, which of rights, four expressly called for the separa- sought to salvage the Articles, also incor- tion of the three branches of government. porated separation of powers might, at first The “Declaration of Rights” for the Mas- blush, seem unusual. Yet the mere fact that sachusetts Constitution of 1780 contains this plan provided for an energetic govern- the most elaborate statement regarding this ment that could enforce its will upon the separation and its purpose: “. . . the legislative states, quite unlike the state of affairs under department shall never exercise the executive the Articles, necessitated a division of powers and judicial powers, or either of them; the in order to have any chance of success within executive shall never exercise the legislative the Convention. and judicial powers, or either of them; the Following on the analysis of Montesquieu, judicial shall never exercise the legislative Federalist No. 47 makes it clear that the and executive powers, or either of them, to purpose of separation of powers is to prevent the end that it [the Massachusetts govern- arbitrary rule. The decisive point to notice is ment] may be a government of laws and that the Convention was undivided on the not of men.” The first article in the body of importance of that principle. The fault lines the Georgia Constitution of 1777 is more that emerged centered not on the theoreti- succinct: “The legislative, executive, and cal foundations of separation of powers but judiciary departments shall be separate and rather on different opinions as to the insti- distinct, so that neither exercise the powers tutional threats to it and the proper insti- properly belonging to the other.” tutional responses: some delegates wanted While other state constitutions were not to strengthen the executive and judiciary as explicit as Georgia’s, their basic frames of against an encroaching legislature; others, government clearly reveal a concerted effort to weaken the presidency lest its occupant to adhere to this principle. It bears emphasis become tyrannical; and still more favored a that these rhetorical declarations of devotion strict and inviolable separation between all to the separation of powers appear in the three branches. But the separation of powers revolutionary constitutions as an explicit was not an accidental by-product of extrane- theoretical justification for institutions that ous institutional debates. had long evolved—a self-conscious invo- The degree of consensus surrounding the cation of the authority of Montesquieu. separation of powers is evident in the fact that

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certain important lines pertaining to it were should appropriately be linked with the drawn early in the proceedings. The Virginia legislature. Plan called for a Council of Revision that Thus, their primary purpose was to would empower “the Executive and a conve- protect the two weaker departments, the nient number of the National Judiciary” to executive and judiciary, from legislative veto measures passed by the legislature. Both aggrandizement—again, to preserve the Madison and James Wilson were persistent separation of powers in practice. As Wilson and forceful proponents of uniting the judi- put this at an earlier point in the debates, on ciary with the executive, seeking adoption of July 21, “the joint weight of the two depart- this provision on June 6 and July 21 without ments was necessary to balance the single success. What can rightly be called a third weight of the Legislature.” Equally impor- effort, on August 15, took the form of allow- tant, however, such a union would render ing either “the Executive” or the “Supreme the exercise of the veto power in the face of Judiciary Departments” to exercise a veto: if legislative aggrandizement more likely. The both vetoed, “3/4 of each House” would be executive standing alone might not have the required to override; if only one, “2/3 of each confidence, firmness, or courage, deficien- House.” This proposal was soundly rejected cies overcome by uniting with the judiciary. by an 8–3 vote. Yet Madison, speaking on the same day, Why were Madison and Wilson so persis- doubted that even this union of executive tent in seeking this union of the two depart- and judicial branches would do the job; “the ments? The reason was to retain rather than Legislature,” he believed, “would still be an to jettison the separation of powers. The overmatch for them.” principal justification for their efforts is to The debate over the Council of Revision be found in Madison’s remarks of July 17 to assumes importance because its opponents, the effect that at the state level the legisla- while not opposed to the ends sought by its tures have aggrandized virtually all powers proponents, hold to a vision of separated and that a meaningful separation of pow- powers and what its implementation required ers therefore does not obtain. He notes as that eventually wins out and finds expression well that “the Executives of the States are in the Constitution. On June 6 Dickinson in general little more than Cyphers; the succinctly set forth the overriding objection, legislatures omnipotent.” On July 21 he namely, that the “junction of the Judiciary” repeats his concern in even more alarming with the executive branch “involved an and specific terms: “Experience in all the improper mixture of powers.” Earlier, on States had evinced a powerful tendency in June 4, Elbridge Gerry, apparently the most the Legislature to absorb all power into its vocal opponent of this provision, observed vortex. This was the real source of danger to that judging “the policy of public measures” the American Constitutions; & suggested was “foreign” to the judicial function. Fol- the necessity of giving every defensive lowing upon this, Rufus King maintained authority to the other departments that was that “the Judges ought to be able to expound consistent with republican principles.” On the law as it should come before them, free August 15, Wilson points out that, while from the bias of having participated in its tyranny was most commonly associated formation.” Caleb Strong, on July 21, makes with a “formidable” “Executive,” “where essentially the same point: “The Judges the Executive is not formidable” tyranny in exercising the function of expositors

34 THE FOUNDING FATHERS: A CONSERVING CAUCUS IN ACTION

might be influenced by the part they had check on the legislature in order to prevent taken . . . in framing the laws.” Luther Mar- tyranny from that quarter. As Nathaniel tin is even more emphatic in rejecting any Gorham observed during the debate on July role for the judges in the legislative process 21, the last time the Council of Revision on largely different grounds: “A knowledge was proposed, “All agree that a check on the of Mankind, and of Legislative affairs can- legislature is necessary.” And in fact, from not be presumed to belong in a higher degree an early stage in the deliberations (June 4), to the Judges than to the Legislature.” Not a solid majority backed an executive veto unrelated to Martin’s objection is Pinckney’s power whose override would require a two- observation regarding Madison’s final pro- thirds vote in both legislative chambers— posal of August 15 that “the interference of the same requirement for an override of a the Judges in the Legislative business . . . will governor’s veto contained in the New York involve them in parties, and give a previous and Massachusetts constitutions. tincture to their opinions.” The disputes surrounding these issues Looking at this dispute from a wider per- were, to be sure, substantial, but they should spective, the major difference between those not obscure the degree to which the delegates who favored this combination of executive were, so to speak, deliberating in the same and judicial powers and those who opposed political universe. That is, they understood it revolved around their respective estimates the need for the separation of powers; they of the capacity of the legislature to over- did agree that the legislature would have whelm the executive and judicial branches. to be checked; they did appreciate the rea- All, however, were united in a theoretical sons underlying their differences; and they commitment to separation of powers, which were mindful of how their decisions would in fact motivated these other disputes. impinge upon other basic values, not the Greatly influenced, no doubt, by what they least of these being republicanism. In short, witnessed taking place in the states after they shared the same basic objectives. Their independence, those who sought to fortify eventual resolution of these differences came the executive called for checks on the leg- down to a matter of judgment: Would, for islature that would be extremely difficult to example, the independence of the judiciary overcome. Indeed, some suggested that the suffer from even a partial union with the only sure remedy against legislative tyranny executive? Would a three-fourths override resided in giving the executive an absolute provision render the president too powerful? veto.8 Those opposed to these measures sim- Would a two-thirds provision be sufficient to ply did not view the legislative threat in such prevent legislative encroachment? an apocalyptic light. The issue of who should elect the president At the same time, a wider perspective also perhaps better illustrates the fundamental reveals fundamental grounds of agreement agreement on principle that pervaded the that in the end served to facilitate com- deliberations. The Virginia Plan provided promise on one of the most critical issues for the election of the executive by the com- confronting the Convention. Put otherwise, bined chambers of the legislature. Early in even though the proposal to unite the execu- the deliberations key issues arise that will tive and judicial branches to fend off legisla- later be debated at some length: Who should tive encroachments was rejected, there was elect the executive—the legislature or the still a consensus that the executive needed a people—and what should be his term of

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office? On June 13 the Committee of the may be executed in a tyrannical manner.” Whole reports on the Randolph Resolutions While it should be noted that even though affirming the Convention’s prior decision Madison—unlike Wilson, with whom he that the executive be elected by the national shared almost identical views on the need legislature for a term of seven years, adding for separation of powers—never endorsed the proviso that he “be ineligible a second life tenure for the executive, he nevertheless time.”9 On July 17 the delegates vote unani- felt that McClurg’s motion deserved “a fair mously for election by the national legisla- hearing & discussion, until a less objection- ture but also, on a 6–4 vote, eliminate the able expedient” could be found to prevent proviso barring reeligibility. On this issue legislative tyranny. the delegates apparently accepted Gouver- George Mason regarded “during good neur Morris’s July 17 view that “ineligibil- behavior” to be only “a softer name for an ity . . . tended to destroy the great motive to Executive for life,” and he raised the specter good behavior, the hope of being rewarded of a “hereditary Monarchy”; an “easy step,” by a re-appointment. It was saying to him, in his view, if the “good behavior” provision make hay while the sun shines.” were adopted. This charge drew denials of The ramifications of the decision to allow any such intention from McClurg, Madison, for reeligibility were almost immediately and Gouverneur Morris. Perhaps the most apparent. Jacob Broome indicated that with incisive of these was Madison’s argument reeligibility he was now for a shorter terms that the preservation of republican govern- of office, preferring a longer term if “he had ment “required some expedient for the pur- remained ineligible.” But James McClurg, in pose” of restraining the legislature, but “in moving “to strike out the 7 years, and insert devising it” that “the genuine principles of ‘during good behavior,’ ” raised the issue that that form . . . be kept in view.” hit to the heart of the separation-of-powers On July 19, presumably in light of the dif- principle. By eliminating the ineligibility ficulties attendant upon reeligibility, a major- clause, he argued, the executive “was put ity voted in favor of a motion by Oliver Ells- into a situation that would keep him depen- worth for election by electors “appointed by dent forever on the Legislature; and he the Legislators of the States” using a formula conceived the independence of the Executive that would take state population into account to be equally essential with that of the Legis- in allotting electoral votes. But by July 24 a lature.” McClurg’s motion was supported by majority reversed this decision and returned Gouverneur Morris, who at the same time to election by the national legislature, which indicated that “he was indifferent how the prompted Gerry and Martin to move “to re- Executive should be chosen, provided he instate the ineligibility of the Executive a 2d held his place by this tenure.”10 time.” Gerry, acknowledging the need for an Madison, in more extensive remarks, reit- executive independent of the legislature, went erated the point that “the Executive could on to contend that “the longer the duration not be independent of the Legislature, if of his office the more will his dependence [on dependent on the pleasure of that branch the legislature] be diminished,” and he sug- for a reappointment.” Invoking the authority gested terms of “10, 15, or even 20, years and of Montesquieu, he pointed to the conse- [that he] be ineligible afterwards.” quences of a union of these two branches: Clearly there were those such as Gou- “tyrannical laws may be made that they verneur Morris for whom reeligibility was

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critically important and who, therefore, process that embodied both the federal prin- could not accept any provision along the ciple, by providing a role for the states, and lines suggested by Gerry. King, for instance, the national principle, by apportioning dele- stated that reeligibility was “too great an gates largely on the basis of state population. advantage for the small effect it will have on Again, the give and take over this issue his independence.” It is with this in mind has to be understood in a wider context. The that Wilson, recognizing the difficulties experiences at the state level, coupled with that “spring from the mode of election,” set the basic strictures of the separation of pow- forth a proposal designed to overcome them ers and republicanism principles, provided and allow for reeligibility: “the Executive be the grounds upon which the deliberations elected for 6 years, by a small number, not proceeded. Put otherwise, these principles, more than 15 of the Natl. Legislature, to be perhaps imperfectly provided for in the state drawn from it, not by ballot, but by lot and constitutions, were uppermost in the minds who should retire immediately and make the of the delegates. The debates centered not election without separating.” While Gou- on the principle itself but over what was verneur Morris believed the plan worthy of required to ensure its realization in practice. consideration, Wilson’s plan failed to gain In the last analysis, this was a matter of judg- any traction. ment. As Morris put it on July 24 amid the On July 26, after two days of debate debates over executive-legislative relations, and deliberation, Mason surveyed all the “It is most difficult of all to rightly balance proposals suggested for the election of the the Executive. Make him too weak: The Leg- executive—different modes of popular islature will usurp his powers: Make him too election, “election . . . by Electors chosen by strong. He will usurp on the Legislature.” the people,” election by state legislatures Bicameralism. On June 20, in the midst or by state governors, and Wilson’s lottery of wide-ranging remarks in the Convention, scheme—and concluded “that an election Mason noted that while much had been said by the Natl. Legislature as originally pro- about the “unsettled mind of the people of posed . . . was the best.” On his motion, the America,” “he was sure” there were “two original provision for a seven-year term with points” upon which “it was well settled,” no reeligibility is adopted by a vote of 6–3 namely, “an attachment to Republican Gov- with two states divided. This decision, as we ernment” and “an attachment to more than know, did not settle the matter, nor given its one branch of the legislature.” He went on deficiencies should we have expected it to. If to observe that the constitutions of the states nothing else, the debates and deliberation to “accord so generally in both these circum- this juncture, particularly in pointing up the stances, that they seem to have been pre- difficulties associated with the election of the concerted.” “This,” he believed, “must either executive by the legislature, are sufficient to have been a miracle, or have resulted from explain why the eventual resolution of this the genius of the people.” Attributing the issue, election by the Electoral College, was attachment to bicameralism to the genius gratifying to most of the delegates; namely, of the people comes close to the mark, since it ensured executive independence from the there is good reason to believe—contrary national legislature, along with a relatively to the supposition that Americans sought short term and reeligibility. Added to this, to “copy” the British model—it naturally of course, was the composite nature of the evolved over time.

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What is widely regarded to be the first arrangement, wherein an appointed gover- American constitution, the Fundamental nor’s council constituted a second legislative Orders of Connecticut (1639), reveals the chamber, is that which eventually emerges in earliest stage of this evolution, with its provi- all the royal and proprietary colonial govern- sion for the election of magistrates and gov- ments save Pennsylvania and Georgia. ernor by the General Assembly. These magis- Without going into the details of the con- trates, who are also members of the General stitutions adopted by the states, both before Assembly, assumed executive responsibilities and after the formal separation from Great with the governor. Consequently they can Britain, certain trends should be noted. The be seen as standing somewhere between the most notable, of course, is that the governor’s legislative and executive departments. An councils—a feature of the royal colonies— amendment to the Fundamental Orders in are eliminated, though their functions are 1645 enhances considerably the magistrates’ assumed by new constitutional arrangements. legislative dimension by providing that they These arrangements varied somewhat. The vote as a unit within the General Assembly, a New Jersey Constitution of 1776 provided majority of their number being necessary for that an upper chamber, the “Legislative the passage of legislation.11 Finally, in keep- Council,” should be elected, but provided ing with the logic of this change, in 1698 as well that the governor, elected by both the General Assembly is divided into two Houses, should be “President of the Coun- houses—an “Upper House” and a popularly cil,” thereby still linking the council to the elected “Lower House”—with the provision executive. Delaware’s constitution indicates that “no act shall be passed . . . but by the the path followed by most states: the gover- consent of both houses.”12 nor’s council was replaced by an elected body, The Connecticut evolution is not unique. the “Council,” which constituted the upper In 1644 a Massachusetts ordinance, after chamber. In addition, there was provision for noting “inconveniences” associated with a “privy council” whose duties were primarily “magistrates & deputies sitting together” in executive in character. The Maryland consti- one assembly, ordained that “the magistrates tution likewise provided for the election of may sit & act business by themselves” and the upper house and a “privy council” with that their concurrence is necessary for the largely executive duties. Following Virginia’s enactment of laws.13 Likewise, the Rhode example, the North Carolina constitution Island charter was amended in 1666 so that provides for election to both legislative “the deputyes may sitt apart from the magis- chambers and establishes a “Council of State” trates as a House by themselves; and conse- whose main function is to “advise the Gover- quently the magistrates to sitt as a House by nor in the execution of his office.” themselves; and that of these two houses may Quite aside from the more or less natural consist the law makeing power.”14 The move evolution, there was widespread agreement for to bicameral legislatures was not confined bicameral legislatures on theoretical grounds. to New England: by 1643, the Governor’s John Adams’s widely circulated “Thoughts on Council, which had been part of the original Government” (1776), which offered principles Virginia Grand Assembly, a unitary body that should guide states in the drafting of established in 1619, became a separate second new constitutions in the wake of their inde- legislative chamber, the other being the House pendence from Great Britain, was a highly of Burgesses.15 In fact, Virginia’s bicameral influential work that defended the necessity

38 THE FOUNDING FATHERS: A CONSERVING CAUCUS IN ACTION of bicameralism to maintain liberty. Here be longer than for those of the lower cham- Adams, a proponent of “mixed” government, bers was a widely held position that gained indicts unicameral legislatures on various strength even over the course of the delib- grounds, the first being the “passion, flight erations. On June 12, Randolph proposes of enthusiasm . . . or prejudice . . . productive of a seven-year term for the upper chamber in hasty results and absurd judgments,” inher- order to ensure “firmness & independence”; a ent faults that require the steady hand of a proposal immediately supported by Madison second chamber either to stymie or correct. on grounds that such a term would provide a Like considerations lead Wilson, the most critically needed “stability” in order to check democratically inclined convention delegate, the excesses of the lower chamber. Later, on to insist in his 1791 Lectures on Law that a June 26, again expressing his concern that second chamber was absolutely necessary in the second chambers in the states have been light of the “passions” and “prejudices” of a no match for the lower chamber, he again single assembly that would, if left unchecked, maintains that “considerable duration ought eventually produce “despotism, injustice, to be given” the upper chamber, even terms of and cruelty.”16 In short, the need for a second nine years. On the same day, Wilson observes chamber was widely recognized across the that in addition to concerns over “anarchy political spectrum, a state of affairs that could & tyranny,” the Senate “will probably” have not help but be reflected in the Convention. responsibilities relating to foreign relations The composition and character of the and “treaties” that would render lengthy second or “upper” chambers in both the terms desirable in order to promote “respect- colonial and the period between the Dec- ability in the eyes of foreign Nations.”17 laration and the Constitution provided a In this Wilson is implying that the Sen- consensus, to some degree tacit, on certain ate would share certain functions with the critical issues surrounding the form and executive, not unlike the councils and upper function of the second chamber. To begin chambers of the colonies and states. And, with, in keeping with both the morality and not unexpectedly, this turns out to be the practice of the colonial and state govern- case. Underlying all the formal constitu- ments, as well as with the more theoretical tional provisions relating to term, size, and injunctions, they wanted an upper chamber functions was a recognition, largely implicit, that would be more sedate and deliberative but articulated by Madison on June 26, than the lower. Above all, it was assumed that a properly constituted second chamber that a second chamber, like the councils in might well come to be respected by the the colonial and state governments, should people for its “wisdom & virtue,” thereby closely examine the legislative output of the posing an effective and republican check lower chamber with an eye to determining on the ill-conceived measures of the lower whether it was suitable and, if so, how it chamber. Setting the minimum age for eligi- might be improved. To realize this, in turn, bility for the Senate at thirty, compared with it was understood that the second chamber twenty-five for the House, thereby seeking should have fewer members than the lower in to provide for a more mature membership, order to facilitate the necessary deliberation. may be understood as one small step in this There were still other critical features of a direction. So, too, was their insistence on second chamber upon which there was con- some form of filtered election, another staple sensus. That the terms for its members should of both the colonial and state governments.

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This consensus is underscored rather of theoretical contemplation detached from than impaired by Paterson’s proposal for a experience. However, and equally important, unicameral legislature. Paterson’s proposal the fact that the framers relied on experience was made before consensus emerged that the does not diminish the theoretical sophistica- new regime would operate on individuals, tion or coherence of their work. This is true thus removing the theoretical motivation not merely because their gradualism and cau- for bicameralism. Paterson’s legislature, like tion itself arose from a theoretical suspicion of that of the Articles, was—to borrow John detached reason. One of the most important Adams’s metaphor—less a legislative body features of the American political tradition than a diplomatic assembly. The key fact to is that it is characterized not by ad hoc insti- observe is that once the Convention agreed tutional design—as Roche suggests—but that it would instead function as a Congress rather by theory arising from practice. Put with authority over individuals rather than otherwise, Gentz’s distinction between the states, all parties—including those still American and French Revolutions was that pushing for the states to retain some sover- the former was not the product of “abstract” eignty—apparently agreed that a bicameral theory. It is far from the case, however, that legislature was needed. a lack of abstract theory indicates an absence In sum, while the principled differences of theoretical grounding altogether. On the over who or what the Senate should represent contrary, the American tradition exhibits a have understandably been a focus of attention commitment to theory moored to practice. among students of the Convention, what is Roche, arguing otherwise, describes often overlooked are the areas of consensus or Madison and Hamilton as “inspired pro- substantial agreement that rendered the del- pagandists with a genius for retrospective egates’ task manageable and the fact that this symmetry” for having, in The Federalist, consensus arose substantially from experi- draped the product of a “reform caucus” ence. Had they begun their deliberations on a in theoretical garb after the fact.18 But this second chamber de novo, without the benefit overlooks the extent to which the theoreti- of the prior political tradition, it is doubtful cal consensus at the Convention arose from they would have reached any resolution. a continuous practice of introspection nearly two centuries in the making before he foregoing has attempted to establish the delegates arrived in Philadelphia. Such Tthat the delegates to the Philadelphia institutions as bicameralism and separation Constitutional Convention of 1787 began of powers evolved from gradual and cautious their work with a broad-based consensus on speculation in the states that was anchored core theoretical matters and, further, that to practice and bounded by awareness of the this consensus was guided and bounded by limits of abstract reason. The framers’ silence the long-standing practice of the states. The on many theoretical matters reflects the importance of this consensus for understand- extent to which this consensus existed, and ing the American political tradition is myriad. their decision to embrace it, in turn, reflects Most clearly, it underscores the fact that Amer- both their own theoretical commitment to ican political institutions are the products of gradualism and their inheritance of a long a steady evolution reaching back to the earli- and coherent theoretical tradition they chose est colonial institutions, not a sudden burst to retain. That makes the Convention less a of innovation in Philadelphia, and still less “reform” caucus than a conserving one.

40 THE FOUNDING FATHERS: A CONSERVING CAUCUS IN ACTION

Finally, the foregoing considerations also primary elements these letters do specify are cast serious doubt on Madison’s much- either compatible with long tradition, such vaunted role as “Father of the Constitution.” as bicameralism and representation, or—as This encomium derives in considerable mea- in the case of the scope of federal powers— sure from his presumptive authorship of the proved largely uncontroversial because their Virginia Plan, which, as we have seen, served necessity was generally seen as self-evident. as the basis of the Convention’s substantive As we have seen, the only theoretically novel deliberations. Yet the theoretical arguments device these letters propose is Madison’s much Madison adduced within the Convention criticized proposal for a national negative on and in The Federalist, especially with respect state laws. Not only was this device repeat- to separation of powers, seem largely incom- edly defeated, it would not be too much to patible with core features of the Virginia Plan. say it never received serious consideration—a The case is complicated by the fact that only fact that concerned Madison enough that he circumstantial evidence connects Madison to predicted the Constitution would fail because the plan. He does outline some of its core fea- of it. This suggests that Madison may have tures in correspondence with Washington as been accurate, not merely modest, when he well as Edmund Randolph in advance of the famously described the Constitution as “the Convention, but these letters do not specify product of many minds.” The overwhelming the modes of election—the lower house influence of tradition on constitutional forms electing the upper and each of them electing shows it was the product of many decades as the president—that seem incompatible with well. his position on separation of powers.19 The

1. John P. Roche, “The Founding Fathers: A Reform Caucus in Action,” American Political Science Review 55, no. 4 (December 1961): 799–816. 2. Elliot’s Debates, 424 (August 13). All references to the Convention are to Elliot’s Debates, to the date indicated. 3. Friedrich von Gentz, The Origin and Principles of the American Revolution compared with the Origin and Principles of the French Revolution, trans. John Quincy Adams (Indianapolis: Liberty Fund, 2010). 4. See, inter alia, Douglass Adair, “That Politics May Be Reduced to a Science” in Fame and the Founding Fathers (Indianapolis: Liberty Fund, 1998). 5. http://avalon.law.yale.edu/18th_century/pinckney.asp. Pinckney’s plan calls for the House to elect a Senate “either from among themselves or the People at large.” All references to colonial documents and to postrevolutionary constitutions are to avalon.law.yale.edu unless otherwise indicated. 6. Alexander Hamilton, James Madison, and John Jay, The Federalist(Gideon edition), eds. George W. Carey and James McClel- lan (Indianapolis: Liberty Fund, 2000), 249. 7. Donald S. Lutz, “The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought,” American Political Science Review 78, no. 1 (March 1984): 189–97. 8. Among those who at one time or another favored an absolute veto were Hamilton, Wilson, and Gouverneur Morris. Mason seems to have expressed the general sentiment of the Convention in his remarks on June 4. He concluded by contending that an absolute veto would be tantamount to ceding “all the rights of the people to a single Magistrate.” 9. Ibid., 113. 10. Ibid. 11. Donald S. Lutz, ed., Colonial Origins of the American Constitution (Indianapolis: Liberty Fund, 1998), 239–40. 12. Ibid., 253. 13. Ibid., 90–91. 14. Ibid., 208. 15. See http://listlva.lib.va.us/cgi-bin/wa.exe?A2=ind0504&L=va-hist&D=1&P=2414. The assembly constituted in 1619 is today commonly referred to as the House of Burgesses and the first representative body in America. It is the first representative body, but the House of Burgesses did not come into existence until 1643 as the “lower” house of the Virginia legislature. 16. http://press-pubs.uchicago.edu/founders/print_documents/v1ch12s26.html. 17. On June 25 the idea of staggered elections—i.e., only a portion of the Senate seats being contested at any given national election—was apparently well received. This, in turn, meant that eventually the debate over length of terms came down to six or nine years, with one-third of the Senate elected either every two years or three years. This arrangement helped to satisfy to some degree both those who wanted stability and those who were concerned about accountability. 18. Roche, “The Founding Fathers,” 804. 19. Madison to Washington, April 16, 1787, http://press-pubs.uchicago.edu/founders/documents/v1ch8s6.html; Madison to Randolph, April 8, 1787, http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Ftitle=1934&chap ter=118609&layout=html.