Last week we covered the most controversial issue of the Constitutional Convention in Philadelphia in 1787. That was whether states should be represented in Congress by population or with equal representation for each state. The convention ended up splitting the difference, giving population representation in the House and equal representation in the Senate.
One or Two Houses
To reach that final agreement, however, the delegates had to agree to having two houses in the first place. While this issue was not nearly as heated as the controversial as the proportionality question, it did go through some back and forth.
For most supporters of two houses, the idea of an upper house kept the more intemperate voices of the people in the lower house from going too far. Short term popular majorities, often led by a charismatic figure, might gain a majority at times. There was a need to keep them in check.
Supporters of a single house essentially agreed with the purpose of the upper house, but said that it was a bug rather than a feature. Having one house of the legislature made up of elites who could thwart the will of the majority went against everything that a democratic republic meant. Rule by the people meant that the people should be able to implement the laws that they wanted without a tiny minority of rich old guys standing in their way.
Because the delegates voted general support for the Virginia plan to become the basis of their consideration and because the Virginia plan called for two houses, that became the basis for most discussions. The equal states delegates were also the delegates who had originally wanted a single body legislature. After the majority of the convention voted for proportional representation in both houses, the equal state folks also got behind the idea of a two house legislature so that at least one of them would offer equal representation. So, by a month or so into the convention, pretty much everyone was on board with a proposal that included two houses. There remained debates over how those two houses would be populated but the decision to have to houses had pretty much reached a consensus by that point.
Terms of Office
A big issue was how long a term of office should be. Many delegates wanted a term of one year. In fact, Massachusetts had instructed its delegates to demand a single year term and also to allow states to recall members during the year if they wanted. For many, these regular elections - which were the norm in most state legislatures at the time, were a way of ensuring that representatives always reflected the will of the people. Too much time between elections meant more time to get swayed by others in Congress, rather than listening to constituents.
Under the Articles of Confederation, appointments to the Continental Congress were annual, and subject to recall. Of course, there was no requirement that they be elected. In most cases, the governor or state legislature appointed delegates to the Confederation Congress.
The Virginia plan as introduced literally left this blank. The plan read “the members of the first branch of the National Legislature ought to be elected by the people of the several States every __ for the term of __.”
Others thought that one year terms were a mistake. Daniel of St. Thomas Jenifer of Maryland proposed three year terms, arguing that annual elections made people indifferent to them and that it made it more difficult to find candidates willing to run with such frequency.
Madison and Hamilton also supported three year terms. They, and others, argued that congressmen needed time to understand how the government worked, and that a constant churn would prevent that. There was also the time it took to travel to the nation’s capital. Having to return home all the time for elections would prove difficult. In the end, the Convention compromised on two year terms for the House.
In the Senate, there was a whole range of proposed term lengths, proposals included, three, four, five, seven, nine years, and even lifetime appointments. These were supposed to be wise statesmen who were somewhat detached from the people and who could serve as a check on the House when it went too far. Much of the debate compared Senate terms to those in the British Parliament, which were seven years. Madison wanted nine year terms so that they would line up with the three year terms that he wanted in the House. Having terms that didn’t line up meant that elections could not be held together in the same year. When the House terms were reduced from three years to two, Madison also accepted the idea that Senate terms should be six years, so that a Senator would still stand for election in one out of three elections.
Senators would be selected by state governments rather than elected directly. The Virginia Plan had recommended that Senators be chosen by members of the house. Pretty early on though, the overwhelming majority of delegates wanted state governments to choose their Senators. The Senate would serve as a protection of state sovereignty within the federal government. There wasn’t really any support for direct election of Senators.
Term limits
The Convention debated whether either house should have term limits or be subject to recall. Under the Articles of Confederation, appointed delegates could be recalled at any time during their one year terms. Further, no one under the Articles of Confederation could serve more than three terms in a row in Congress.
Debate over the power to recall members of the House or Senate never got much traction. Although a vocal minority liked the idea, the notion of recalling representatives mid-session and having to hold new elections to replace them, was considered unworkable. Beyond that many delegates wanted representatives to have a greater ability to act independent of popular opinion back home. Voters at home were not privy to all the debates and reasons for decisions that representatives would have. As a result, representatives had to be free to use their own best judgment on matters.
There was probably a better case for recalling Senators. After all, they had six year terms if they proved unpopular, and since the state legislature appointed them, it would be easy to appoint a replacement. But the nationalists wanted the Senate to be a body of wise and deliberative men who were aloof from factional majorities that might form in the House. These wiser independent leaders should not be looking at popular disapproval for their actions. That was why some delegates wanted to give them lifetime tenure. In the end, they would have to face reappointment every six years, but could not be recalled short of that.
For similar reasons, the Convention did not allow states to saddle representatives with instructions. Many state governments had gotten used to the idea of instructing their delegates on how to vote. Supporters of the new federal system believed that representatives should be able to use their own judgment, and not be hamstrung by rules imposed by people back home who were not part of the national debates. Most of the people serving in this convention had served as delegates under the articles of Confederation and had experienced frustration of such instructions.
The delegates also rejected the idea of term limits. The Virginia plan had initially anticipated some term limits on members of congress. Madison also proposed at one point that members of congress be ineligible for any other federal office for at least one year after leaving office. He saw this as a way to prevent members from creating government jobs for themselves.
In the end though, the delegates rejected all of this. The states voted unanimously against term limits. From their perspective, the term limit rules in the Articles of Confederation had proven to be a disaster. Those limits essentially sidelined some of the best delegates from further service, while putting up the B team to continue to represent their state. Members could continue to run for office as long as the people continued to reelect them.
Citizenship, Residency, and Age
The Convention also considered other restrictions on members of Congress, beyond being able to win an election. A big one was whether immigrants could serve in Congress. This raised some debate. Hamilton, in particular, strongly opposed a proposal to restrict members of Congress to native born Americans. Some have argued that he did this out of self-interest, since he had been born in the West Indies. Hamilton, however, probably would have been eligible since he was a citizen when the US was created. Hamilton was more concerned that highly qualified people from Europe might immigrate and would be able to add greatly to the nation through government service. They should not be prevented from running. That should be left up to the voters.
Supporters of requiring elected officials be native born or longtime citizens argued that outsiders could come into the government and change it based on their attachments to their home countries and also with foreign ideas that were incompatible with the American form of government. There were considerable debates on how long to require an immigrant to be a citizen before they could run for office.
In the end, the delegates agreed that all members of the House and Senate should be citizens. They initially placed a restriction that members must be a citizen for at least three years before holding office. In the final version they changed this to seven years. For the Senate, they settled on nine years.
There was also a question of residency. Could an outsider, say a member of another state or district move into an area immediately run for office? Some delegates thought there should be some period of years before someone could run for office, so that they truly represented those who elected them. In the end, the Convention required that an elected official reside in the state that they want to represent. There was no waiting requirement. If the official became an inhabitant of the state just before the election, that was good enough.
Delegates also considered age restrictions. There were some, like Wilson who argued for no restrictions on age. If a candidate gained the confidence of the voters, even at a very young age, youth should not bar him from serving. Initially, the delegates set the age at 21. That was the traditional age of adulthood, when a man could make contracts and do other things under the law.
George Mason, however, argued it should be set higher limits. Mason argued a man should not move from being considered a child one day to be able to represent people in government the next. Mason, who was aged 62 at the time, also noted that he looked back on his foolish mistakes of youth in his early twenties, and believed that everyone would become wiser with age. He moved that the minimum age be set at 25. In the end a majority of states agreed seven states to three, to set the minimum age for the House at 25.
Delegates also argued over a higher age for Senators. The Senate was to be a place for more mature, stable, and experienced men. Despite the fact that several delegates at the convention that was making these rules were still in their twenties, the delegates voted to set a minimum age of 30 for Senators.
Leadership
There seems to have been little debate over how each house would choose its leaders. Neither the Virginia Plan, nor the New Jersey Plan even addressed the issue. There was a general consensus that the House of Representatives would choose its own leader, called a Speaker. This was based on the British Speaker of the House of Commons. The House also received the power to create other officers as it deemed necessary. The details of all this was left up to the House itself.
There was not much thought at all given to the leader of the Senate. It was typical that in most state upper houses or in the House of Lords in Britain, that there was no leader. These bodies were small enough and collegial enough that they didn’t necessarily need a leader.
It wasn’t until near the end of the Convention when the Committee on Unfinished Parts proposed that the Vice President preside over the Senate. The main reason for doing this was to give the Vice President something to do. There were some objections. Elbridge Gerry of Massachusetts argued that this would be akin to placing the President in charge of the legislature and that it would destroy the independence of the legislature. Similarly, George Mason of Virginia argued that it was mixing the legislative and executive branches, which should be kept separate.
Others, however, pointed out that if the Senate chose one of its own to lead, that one state would be denied one of its two votes in the Senate, except in cases of a tie. The convention voted to let the Vice President sit as the ex officio President of the Senate, although the final wording just said he would sit as the President of the Senate.
Rules and Punishment
The Convention also established that each house would have the power to set rules for itself and to punish its own members. They did not want outsiders to be able to intervene in the operations of the House and Senate. Both the House and Senate were given the power to expel their own members, again without any outside involvement. Madison recommended requiring a two-thirds vote for expulsion in order to prevent extremely factionalized majorities from removing minority members they did not like. The majority agreed with Madison.
I think it is important to note however, that other branches of government had no power to remove members of Congress. Contrast this with the fact that Congress gave itself the power to remove any member of the executive or judicial branches through impeachment. Congress was meant to be the branch of government with the most control over all three branches of goverment.
Powers of Congress
While the Convention allowed states to set elections, it also gave Congress the power to overrule state election dates and mandate its own date for federal elections. It gave each house the authority to judge the results of the elections of its members, again, without any interference from the other branches.
Further, members, with some exceptions, would not be subject to arrest while Congress was in session, or while traveling to or from sessions of Congress. Members also could not be questioned anywhere else for speech and debate made in Congress. Delegates were well aware that by creating other branches of government, those branches might try to interfere with Congress, or attack individual members. Congress tried to put limits on that possibility.
Another rule was that all bills for raising revenue had to originate in the House, not the Senate. You may ask, what does it matter since both houses would have to approve it anyway? Part of the argument was that the House was closest to the people and representative of the people. That whole taxation without representation thing meant that the house that represented the people should control proposals to raise taxes.
When the Convention was debating the interests of large vs. small states, some of the large states argued that it was unfair that smaller states, contributing far less in taxes, should have equal power in originating money bills. In response, this rule about the house originating all bills raising revenue, was given to the large state faction. Of course, though, it was meaningless since the Senate could amend any such bill to say whatever it wanted, then send it back to the House.
Both houses would have to pass all laws, although the power to make treaties and appoint members of the other branches was limited to the Senate. We'll get into that more next week when we discuss the executive branch.
The Convention also listed the specific powers which the Congress, would have. Number one was borrowing money, which had been much of the purpose of the Continental Congress. The second thing listed was regulating commerce, both at home and abroad. Recall that this was the primary goal at the Annapolis convention and played such a large role in creating the demand for this convention. It also gave Congress the power to establish uniform rules of naturalization, so that states did not create their own.
There were a great many financial powers for congress. Establishing bankruptcy rules, coining money, punishment of counterfeiting were all given to Congress, probably with an eye toward preventing financial abuses like Rhode Island had committed in recent years. It explicitly took away the power of states to make their own money or create a new legal tender.
Congress had the power to declare war, raise armies and navies, deal with crimes on the high seas. It shared with states the power to arm and regulate militia. It denied states the power to enter into foreign treaties, grant letters of marque, etc. They could not maintain standing armies or ships of war. The new Federal government would have exclusive power related to war and foreign policy.
Finally, the Convention granted Congress exclusive power of a district which would become the seat of government. After their experience in Philadelphia where local officials had refused to protect Congress from angry Continental soldiers, the delegates wanted to be sure that Congress could regulate its own local government. The Constitution did not specify where this district would be, but did call on states to cede the land to make it into an independent jurisdiction controlled by Congress.
Next week, we will turn our attention to what the Convention thought an executive branch should look like.
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Next Episode 349 Creating a President, 1787 (coming soon)
Previous Episode 347 The Convention's Biggest Fight
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Further Reading
Websites
Age limits on Congress https://history.house.gov/Blog/2019/January/1-17-Young-Members
The Virginia Plan: https://www.senate.gov/civics/common/generic/Virginia_Plan_item.htm
The New Jersey Plan: https://avalon.law.yale.edu/18th_century/patexta.asp
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
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.
