Last week, we covered how the Constitutional Convention spent about three days setting up the procedures that they would follow and selecting officers to run the Convention.
On Wednesday, May 30,1787, the Committee of the Whole finally got down to business. Chairman Nathaniel Gorham brought the committee to order. Their first point of discussion was the Virginia Plan, introduced by Edmund Randolph, but largely written by James Madison.
Before we dive into that, I want to say that, typically with this podcast, I’ve tried to stick to events in chronological order. I’m going to depart from this slightly for the next few weeks. I want to focus on several of the Constitutional debates that occurred during the convention. But the delegates did not just deal with one issue and then move on to the next. Instead, they debated an issue for a while, they went on to another, then came back to the first one again. Since I want to focus on this important event over a few episodes, I’m going to take a look at a particular issue or set of issues in each episode, then cover the debate over the course of the entire convention until the delegates reached a final outcome.
Representation in Congress
The biggest issue to be tackled by the convention was how the states would be represented in Congress. In the Continental Congress, as in the convention itself, each state received one vote. It did not matter that more than ten times as many people lived in Virginia as did in Delaware, both states got the same one vote. From the perspective of the Confederation Congress, this made sense. The Congress was simply a coordinating body between the states on how to deal with Britain and run the war. It was not involved in making the bulk of the laws that impacted people. It served essentially as a regional international body that coordinated affairs on behalf of the sovereign states which needed to work together.
Supporters of proportional representation saw this new congress as something that would have more regulatory power. These representatives in this new congress would be elected directly by the people and would legislate on their behalf. It made no sense that some people would have much greater say in congress, simply because they lived in a state that had a smaller population. The seven smallest states made up only about a quarter of the population, but would have a majority say in Congress. That was simply anti-democratic.
Supporters of equal votes for states were more concerned about competing state interests. Many small states had suffered from having to give in to their larger and more powerful neighbors. Larger states had frequently set up systems to their own advantage. Large states would not even have to consider the interests of smaller states. Virginia, Pennsylvania, North Carolina and Massachusetts contained a majority of the entire population. If they could agree on things, they would never need to do anything that served the interests of the other states.
Before the convention had even begun the Pennsylvania delegates had suggested that proportional representation be a given in the new government. Anything else would make this new government a collection of states rather than a single united country. When Delaware’s delegation showed up with instructions that they could not even negotiate on the matter of equal representation of states, it showed that there were many on each side that were fundamentally unwilling to negotiate on this point.
On the very first day of debate, George Reed told the delegates that the Delaware delegation was prepared to walk out and leave the convention if the delegates voted for proportional representation. It appears that the majority was prepared to support it, no one wanted Delaware to leave on the first day. After some consideration, they tabled the debate on the issue and moved on to other things.
The issue lay dormant for a couple of weeks until on June 9, William Paterson of New Jersey called for the debate to be renewed. New Jersey was a leading supporter of equal votes for states. It was relatively small and was threatened by its larger Pennsylvania and New York neighbors. The same day that the debate renewed, another leading advocate of the equal votes system arrived at Congress, Luther Martin of Maryland.
The New Jersey delegates argued for a continuation of equal state representation. In addition to the argument that small states would be overwhelmed in a proportional system, they also argued that the convention did not have the authority to make such fundamental changes to the Confederation Congress. They were there to suggest a few additional powers, not fundamentally rewrite the power structure. In response to arguments that that proportional representation was critical to making the government accountable to the people, another New Jersey Delegate, David Brearly offered, a suggestion. Rather sarcastically, he noted that if states no longer mattered, perhaps they should just redraw all the state lines so that all the states had an equal population. He knew full well that the larger states were not going to shrink in size so that other states neighbors could grow.
By the end of the day, everyone realized that the majority still supported proportional representation. The equal states faction once again requested the matter be tabled.
New Jersey Plan
The following week, on June 15, Paterson proposed an entirely new plan in place of the Virginia Plan. He introduced what came to be known as the New Jersey Plan. This plan looked much more like what many delegates had envisioned when discussing a federal convention designed to amend the Articles of Confederation, not replace it with a completely new government.
Under the New Jersey Plan, voting in Congress would work the same as it always had under the Articles of Confederation. There would be a single house and each state would receive one vote.
Supporters of this plan noted that this convention was not called to create a national government. It was designed to make some amendments to the Articles of Confederation to make it more workable. This Confederation consisted of a group of sovereign states that worked together for their common interests. Creating a Congress where states were represented by population would mean that smaller sovereign states would essentially lose their sovereign status. They would have no way to prevent larger states from imposing their will on the other states. Equal voting by states was critical to the sovereignty of smaller states.
Further, there was no need for two houses of Congress. Each state had a vote in Congress. Gumming up this process with some elitist second house that could thwart the will of the representative house went against the idea of self-government. This notion of an upper-house was similar to the House of Lords in Britain. There was a small group of elites who could thwart the more popular house based on no real legitimate basis, only their elite status. A single house in Congress was just fine.
So, essentially leaving the basic structure of the Continental Congress as is, the New Jersey plan went on to address the real changes that its supporters thought were necessary to amend the Articles of Confederation.
One of the big problems in the Confederation Congress was the inability to raise money to pay off war debts and other debts. This plan authorized congress to tax imports, impose a stamp tax, and through postage fees. Tax evaders would be tried in state courts, but with appeals going to a new federal judiciary.
Congress could also raise additional funds by demanding funds based on a state’s population, including 3/5 of all slaves. The Confederation Congress already had this power, but the plan advocates suggested giving Congress greater powers of enforcement.
The New Jersey Plan also recommended an executive branch, perhaps a committee, that would be in control of the military and other necessary government functions. The executive could be removed by a majority of state governors.
The plan also recommended the creation of a federal judiciary, appointed by the Executive and which would hear cases involving impeachments of Federal officers, as well as certain appeals from state courts.
The New Jersey Plan declared that laws by Congress would be the supreme law of the land, thus overruling any conflicting state laws. State judges would be required to uphold federal laws. It also gave Congress the power to admit new states into the union, establish a uniform rule of naturalization, and ensure that citizens of each state received equal treatment when they were before courts in other states. That's a quick summary of the New Jersey Plan.
Under this plan, the Congress would not change much at all from the way it operated under the Articles of Confederation. Rather, it simply added executive and judicial branches to the mix. There were a few tweaks like they didn’t need a unanimous vote to requisition taxes from the states, but no major structural changes.
This New Jersey Plan was meant to be a more comprehensive plan, addressing more than simply the question over proportional representation, which is this week's topic. This was meant to serve as a basis for all the changes the Convention should consider. For the prior three weeks, all debate had centered around the Virginia Plan, which had recommended an entirely new form of national government. The New Jersey Plan was designed to bring the overall debate back to the idea of making some reasonable amendments to the Articles of Confederation without completely recreating government from scratch.
These two competing visions would dominate the remainder of the Convention, which still had months of debate to come. For now though, I just want to focus on how the New Jersey Plan shaped debate over the issue of representation in Congress.
Wealth Representation
Before we return to the continuing debate over proportional vs. equal representation, I should mention that there was another proposal for a different kind of representation. Several delegates suggested that representation should be based on wealth. This was raise particularly by the South Carolina Delegation, which thought that its slave population, which was a measure of wealth, and which would be included in any system of taxation by the federal government, should also give them a greater number of votes in the Congress.
The debate over wealth representation was not limited to the slavery question. Gouverneur Morris, who was an outspoken opponent of slavery at the convention, also supported the idea of wealth representation. States which contributed more to the federal government in the form of taxes should also have a greater say in the policies of that government.
The idea of representation being tied to the level of taxes given to the government, and that taxes would be tied to the wealth of each state meant that wealthier states that had more taxes would also get more votes. So this idea had some support in both wealthier free states and in the southern states.
Later in the convention, this idea was dropped. Southern states were happy to let it drop in favor of representation based on population, as long as 3/5ths of their slaves were counted in the population, in order to give the more power. The consensus was that this was going to be a republic, which means people should be represented equally. Wealthier people should not be given additional voting power because of their wealth.
Debate Continues
As a result, the main debate centered around representation based on population vs. equal state representation. New Jersey plan author Paterson pointed out that a proportional plan where states like Delaware and Georgia had two delegates, would require a house of more than 180 delegates to be proportional. A second house half that size would increase the size of Congress to an unworkable 270 people. That seemed absurdly large and would be a great expense to operate. A single house legislature did not need a second house as a check. The executive council and the states served as a check on the federal legislature. That was all that was needed.
All of that day, Friday, and the next Saturday, the delegates argued over the two plans. James Wilson of Pennsylvania was one of the strongest advocates for proportional representation. From his point of view, the government was supposed to be from the people. It was the people who should be represented, not the states. If each state had equal representation, the people of some states would simply be more powerful than others. That was completely unacceptable.
Ironically, at the time, Wilson’s home state of Pennsylvania did not have proportional representation. Each county, plus the city of Philadelphia, had six representatives. That was the same, regardless of population. Some counties had over 30,000 and some had less than 5000, yet each county had the same representation in Pennsylvania's state legislature.
The following day was a Sunday, so both sides had a chance to regroup and consider other options. On Monday, Alexander Hamilton took the floor for the entire day, criticizing both the Virginia Plan and the New Jersey Plan. This was the longest speech given at the convention. Hamilton was, by far, the most extreme nationalist at the convention. He proposed a government that had proportional representation. But he wanted an elected chief executive who would sit for life and who would appoint all of the state governors. The president would also have the power to veto all state and local laws.
This was much closer to the colonial model where a king, sitting for life, would appoint all colonial governors. In fact, Hamilton said that he considered the British model of government, as it was practiced in Britain, “the best in the world.” Many of Hamilton’s extreme views were shared by no one else at the convention. He could not even get anyone to second his motion to introduce his plan. Many began calling him a monarchist. His speech did, however, have the effect of making the Virginia Plan’s radical changes seem more moderate in comparison.
The following day, Madison attacked the New Jersey Plan. He argued that it did not fix the major defects that existed in the Articles of Confederation. The states would continue to hold too much power, leaving the federal government impotent. Foreign powers would continue to try to drive a wedge by negotiating directly with the states.
At the end of the day, a vote was called on the issue. The delegates voted in favor of proportional representation. By a vote of 7-3-1. New York’s delegation, despite being a fairly large state, voted in the minority, with the other two delegates outvoting Hamilton. New Jersey, and Delaware also voted in the minority. Maryland had only two delegates present, cancelling out each other’s vote.
For the rest of the week, the convention debated a number of other issues related to the Virginia Plan, but the equal states faction were not happy. The only reason they did not walk out of the convention was a hope that they could revisit the issue again. Delegates realized that even if a majority supported proportional representation, if that meant that four or five states might refuse to join the union under those terms, that would be devastating.
Connecticut Compromise
There was, of course, an obvious compromise. As early as June 11, even before the introduction of the New Jersey Plan, Connecticut delegate Roger Sherman raised the idea of having the states represented equally in the Senate while having proportional representation in the House. Neither side was happy with the idea at the time. The equal states faction still only wanted a single body legislature. The proportional votes faction saw they had majority support and did not want to give the small states more power in either legislative body.
For the rest of June, the convention did not really reconsider the vote to have proportional representation in both houses. The equal states faction accepted the reality that they best they could get was equal representation in a single house. That was the so-called Connecticut Compromise, since it had been first introduced by Roger Sherman of Connecticut.
The minority equal states faction still had the power to walk and prevent the convention from having any chance at all for ratification. Just before the Fourth of July break, Franklin suggested the creation of a “grand committee” to come up with an acceptable compromise. The committee could consist of one delegate from each state. Most of the hard core advocates of proportional representation, men like Hamilton, Wilson, and Madison were not placed on the committee.
On July 5, the committee’s chairman, Elbridge Gerry of Massachusetts, reported the committee’s recommendation that the Senate have equal representation for each state and that the House have proportional representation based on population.
The committee’s recommendations did not settle the matter. The proportionalists, who knew the majority supported their views, continued to fight. Madison, Wilson, and Gouverneur Morris continued to argue for proportional representation in both houses over the next ten days. Their argument was essentially that the small states benefited the most from a union of states and would not walk away from this. If they did, the large states would probably eventually just conquer the smaller states in open warfare and eventually absorb them. No one wanted that.
Charles Pinckney proposed a compromise that would put the states into different classes in the Senate. Larger states would have more representatives in the Senate, but the smaller states would still get disproportionately larger representation than their population justified. Wilson and Madison got on board with the plan. They hoped it would be enough for the small states. The small states, however, suspected they could win on equal representation in the Senate, voted down the compromise.
The following day, July 16, the delegates held a vote on the Grand Committee recommendations. They approved it 5-4. Connecticut and North Carolina accepted the compromise, along with smaller states New Jersey, Delaware and Maryland. New York probably would have voted yes as well, but its delegates had already left the convention, and so New York did not vote at all. Massachusetts was tied and did not vote.
While the hard core supporters of proportional representation, men like Madison and Wilson, were not happy with this outcome, they accepted the result and did not try to revisit the issue for the rest of the convention.
Next week, we’ll look at the other issues regarding the creation of a new federal Congress.
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Next Episode 348 Convention Creates a Legislature (coming soon)
Previous Episode 346 The Constitutional Convention Begins
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Further Reading
Websites
The Virginia Plan: https://www.senate.gov/civics/common/generic/Virginia_Plan_item.htm
The New Jersey Plan: https://www.nps.gov/articles/constitutionalconvention-june15.htm
The Constitutional Convention of 1787: A Revolution in Government https://constitutioncenter.org/the-constitution/white-papers/the-constitutional-convention-of-1787-a-revolution-in-government
The Constitutional Convention of 1787: A Day by Day Account: https://www.nps.gov/inde/learn/historyculture/stories-constitutionalconvention.htm
The Hamilton Plan https://teachingamericanhistory.org/document/the-hamilton-plan
Free eBooks
(from archive.org unless noted)
Secret Proceedings and Debates of the Convention Assembled at Philadelphia, in the Year 1787, Richmond; Wilbur Curtiss, 1839.
Brant, Irving James Madison: Father of the Constitution, 1787-1800. Bobbs-Merrill Co. 1950 (borrow only).
Donovan, Frank R. Mr. Madison’s Constitution: The Story Behind the Constitutional Convention, New York: Dodd, Mead & Co. 1965 (borrow only)
Farrand, Max The Framing of the Constitution of the United States, Yale Univ. Press, 1913.
Farrand, Max (ed) The Records of the Federal Convention of 1787, Vol. 1, Vol. 2, and Vol 3, Yale Univ. Press, 1911.
Ford, Worthington, Chauncey The Federal Constitution in Virginia, 1787-1788. Cambridge: University Press, 1903.
Jameson, J. Franklin Studies in the History of the Federal Convention of 1787, Washington: Government Printing Office, 1903.
Madison, James Notes of Debates in the Federal Convention of 1787, Ohio Univ. Press, 1966.
McMaster, John Bach (ed) Pennsylvania and the Federal Constitution: 1787-1788, Historical Society of Pennsylvania, 1888.
Meigs, William M. The Growth of the Constitution in the Federal Convention of 1787, Philadelphia: J.B. Lippincott Co. 1900.
Richardson, Hamilton P. The Journal of the Federal Convention of 1787 Analyzed, San Francisco: Murdock Press, 1899.
Scott, James B. James Madison's notes of debates in the Federal convention of 1787, New York: Oxford Univ. Press, 1918.
Books Worth Buying
(links to Amazon.com unless otherwise noted)*
Amar, Akhil Reed America’s Constitution: A Biography, Random House 2005.
Beeman, Richard R. Plain, Honest Men: The Making of the American Constitution, Random House, 2009.
Bowen, Catherine Drinker Miracle at Philadelphia: The Story of the Constitutional Convention, Little, Brown & Co. 1966 (borrow at archive.org).
Collier, Christopher Decision in Philadelphia: The Constitutional Convention of 1787, Random House, 1986 (borrow at archive.org).
Morris, Richard B. Witnesses at the Creation: Hamilton, Madison, Jay and the Constitution, Holt, Rinehart & Winston, 1985.
Rossiter, Clinton 1787: The Grand Convention, Macmillan Co. 1966 (borrow on archive.org).
Smith, Page The Constitution: A Documentary and Narrative History, Morrow Quill, 1978.
Stewart, David O. The Summer of 1787: The Men Who Invented the Constitution, Simon & Schuster, 2007.
* As an Amazon Associate I earn from qualifying purchases.
