A People's History of the Supreme Court

by Peter Irons

  But the delegates, however hot and bothered from the humid roasting they endured in the State House chamber or from the heated words of their fellows, mingled amicably in the nearby taverns and lodging houses and generally enjoyed each other’s company. Everyone admired Benjamin Franklin for his wit and sagacity, even those few who found him a bit supercilious and pontifical. And General Washington, who had entertained many of the delegates at his Mount Vernon estate, was a prized dinner companion and was sought after for horseback excursions into the Pennsylvania countryside.

  The day after Randolph proposed the Virginia Plan, the delegates voted to consider it not as a convention but as a “Committee of the Whole”; this parliamentary device allowed for debate and preliminary votes without binding the convention to any final decisions. The delegates first agreed “without debate or dissent, except that of Pennsylvania,” Madison noted, to his proposal “that the national legislature ought to consist of two houses.” Benjamin Franklin “was understood to be partial to a single house of legislation,” but no other delegation deferred to him on this issue.

  After that initial agreement, the delegates quickly moved to the most fundamental issue in government: democracy. The Virginia Plan stated that members of the lower house of the national legislature “ought to be elected by the people of the several states.” This raised a fundamental question: Can people be trusted to elect their own lawmakers? The first delegate to speak on this issue, Roger Sherman of Connecticut, firmly and bluntly said no. He insisted that all national lawmakers should be chosen by state legislatures. The people, he argued, “should have as little to do as may be about the government. They want information and are constantly liable to be misled.” Sherman used the term “want” in the old-fashioned meaning of “lack” rather than “desire.” But his point reflected the perspective of the New England town-meeting member that Sherman had been for many years. He came to the convention as mayor of New Haven, a blunt, outspoken man who had signed both the Declaration of Independence and the Articles of Confederation. Sherman spoke for those “localists” who believed in grassroots government but who felt drat democracy should stop at the state level. He distrusted those who would seek national office and the powers they would exert over the states.

  Sherman was seconded by another New Englander, Elbridge Gerry of Massachusetts. His state had recently experienced an armed uprising by the “people” of western Massachusetts against their state lawmakers during Shays’ Rebellion. Formed into ranks by a former revolutionary officer, Daniel Shays, two thousand farmers had formed a blockade of courthouses from which judges had issued foreclosure orders. Farmers had been heavily taxed to pay off the state’s war debts, and many could not meet the tax burden. While the state militia had routed the rebellious farmers, Gerry feared that allowing the “people” to elect national lawmakers might encourage a revival of the insurrectionary spirit of Shays’ Rebellion and that a national legislature might yield to pressure to curb state powers over taxation.

  Gerry’s attack on popular election of national legislators took the “too much of a good thing” approach. “The evils we experience flow from the excess of democracy,” he argued. “The people do not want virtue, but are the dupes of pretended patriots,” he continued, using the term “want” as Roger Sherman had. Without mentioning Shay’s Rebellion, Gerry claimed that his distrust of the “people” had been “fully confirmed by experience that they are daily misled into the most baneful measures and opinions by the false reports circulated by designing men, and which no one on the spot can refute.” Gerry, who like Sherman had signed the Declaration of Independence, confessed to his fellow delegates that he had “been too republican heretofore: he was still however republican, but had been taught by experience the danger of the levelling spirit.”

  No sooner did Gerry sit down than George Mason of Virginia jumped to his feet to answer the New Englanders. Mason spoke as a plantation owner from a state that allowed slavery, but he had drafted Virginia’s Declaration of Rights and took the most radical position of any delegate on the question of democracy. Madison noted that Mason “argued strongly for an election of the larger branch by the people. It was to be the grand depository of the democratic principle of the government.” Speaking as one property owner to another, Mason took Gerry to task for his distrust of democracy. “He had often wondered,” Madison recorded Mason as saying, “at the indifference of the superior classes of society” to those on the bottom. Mason admonished Gerry and his supporters on this issue that their “selfish motive” of protecting their property would best be served by providing “no less carefully for the rights and happiness of the lowest than of the highest orders of citizens.” A host of ironies surround this exchange between Sherman and Gerry, speaking as New Englanders, and Mason, the Virginia planter. With its tradition of town-meeting government, one would expect New England to send delegates to Philadelphia who would support popular election of all legislators, at whatever level of government. For more than a century and a half, the “freemen” of New England had voiced their opinions and voted their convictions, with few restrictions on the franchise. New England had its share of wealthy farmers and merchants, and of landless workers and servants, but the gap between rich and poor was fairly narrow. In contrast, Virginia was governed largely by wealthy planters and merchants, who formed an aristocracy of power and privilege. Only a handful of Virginians could vote for their local and state officials; close to half the population had no rights at all, living in slavery subject to laws that treated them as property. But Roger Sherman of Connecticut supported the “Great Compromise” that recognized slavery in the Constitution as lawful, while Mason vehemently denounced the “infernal traffic” in slaves. “Every master of slaves is born a petty tyrant,” he declaimed.

  James Madison took the most populist approach on the issue of electing lawmakers. He first argued, on May 31, that he “considered the popular election of one branch of the national legislature as essential to every plan of free government.” Madison also urged that members of the Senate—the delegates had begun referring to the upper house by this term, borrowed from the Romans—be elected by the people. If senators were chosen by the state legislatures, “the people would be lost sight of altogether; and the necessary sympathy between them and their rulers and officers, too little felt.” When the delegates returned to this question on June 6, John Dickinson of Delaware spoke against popular election of senators. The next day, Dickinson moved that senators be elected by the state legislatures, explaining that “he wished the Senate to consist of the most distinguished characters, distinguished for their rank in life and their weight of property, and bearing as strong a likeness to the British House of Lords as possible.” Dickinson admired the House of Lords not only for its “family weight,” as he put it, but for its numbers; he argued that the Senate “ought to be composed of a large number,” as many as 160 members.

  This was too much for Madison, who finally spoke up. He noted that the Roman senators “lost their influence and power, in proportion as their number was augmented.” The larger the legislative body, the more likely its members would “fall into factions among themselves.” Not only should the Senate be small in numbers, Madison argued, but “election by the people” would provide a “useful check” on the state legislatures. Elbridge Gerry took the floor after Madison and “insisted that the commercial and monied interest would be more secure in the hands of the state legislatures, than of the people at large.” When the delegates voted on this question, every state supported Dickinson’s motion. Madison could not even persuade a majority of his own delegation. Not until 1913 did the state legislatures give up their power to pick senators, by ratifying the Seventeenth Amendment to the Constitution.

  3

  “Dishonorable to the National Character”

  Debates in the Philadelphia convention did not proceed in any orderly or logical fashion, such as beginning with the structure and
powers of the Congress, moving to the executive branch, and finally to the federal judiciary. The delegates instead jumped back and forth, debating motions as they were made, setting up committees to refine proposals and report back when they were ready, voting for motions one day and against them the next. The convention lacked a steering committee, or anything like the Rules Committee in the House of Representatives. There were no formal “parties” or party leaders. Delegates asked for the floor to introduce motions or to speak whenever they wished, on whatever subject they pleased. Because of this formless structure, the convention discussed the powers of Congress well before it decided on election procedures, the size of each house, or methods of representation.

  The first debate on the powers of Congress took place on May 31, near the end of a long day of long speeches on how members of each house should be chosen. The delegates then moved to Edmund Randolph’s proposal in the Virginia Plan—which was really Madison’s plan—that Congress should have power “to legislate in all cases to which the separate states were incompetent.” The debate on this proposal was surprisingly brief. It was also surprising—to those delegates who did not know of Madison’s hand in the Virginia Plan—that Randolph spoke vigorously against his own proposal. He “disclaimed any intention to give indefinite powers to the national legislature, declaring that he was entirely opposed to such an inroad on the state jurisdictions, and that he did not think any considerations whatever could ever change his determination.” Madison recorded Randolph’s emphatic conclusion: “His opinion was fixed on this point.”

  As soon as Randolph took his seat, Madison put down his pen and took the floor to answer his fellow Virginian. He told the delegates that “he had brought with him into the convention a strong bias in favor of an enumeration and definition of the powers necessary to be exercised by the national legislature; but also brought doubts concerning its practicability. His wishes remained unaltered; but his doubts had become stronger. What his opinion might ultimately be he could not tell. But he should shrink from nothing which should be found essential to such a form of government as would provide for the safety, liberty and happiness of the community This being the end of all our deliberations, all the necessary means for attaining it must, however reluctantly, be submitted to.” After these heartfelt words, all but one state delegation—Connecticut was divided on the question—voted for the proposal Randolph had made and then opposed. On this issue, Randolph could not sway even his own delegation.

  Madison’s admission of “doubts” that the Constitution should include an enumeration of congressional powers may have been sincere, but he later gave in to his “wishes” and pressed the convention for a detailed listing of these powers. The delegates spent several steamy days in August debating proposals on congressional powers from the Committee on Detail—whose name aptly described its function—and motions by individual delegates. Many of these motions were to add or delete just one word or phrase, although sometimes adding or deleting a few words made a considerable change in the meaning of a constitutional provision. For example, when the delegates considered the provision of the Virginia Plan that limited the grounds for impeaching the president to “treason and bribery,” George Mason of Virginia proposed adding the word “maladministration” after “bribery.” Madison promptly objected. “So vague a term will be equivalent to a tenure during pleasure of the Senate,” he complained. Mason thought for a moment, and then suggested the phrase “other high crimes and misdemeanors” as a substitute. By a vote of eight to three, with no recorded discussion, the state delegations agreed. Almost two centuries later, Richard Nixon resigned as president in 1974 to avoid certain impeachment, and Bill Clinton survived an impeachment trial in 1999 for “high crimes and misdemeanors” whose definition the Framers never discussed. The brief colloquy between Mason and Madison is the entirety of the Framers’ “original intent” on this crucial provision.

  When the delegates finally agreed to an “enumeration” of congressional powers, they debated for several days before agreeing on a listing, which became Section 8 of Article I in the Constitution. Many of the eighteen grants of power were narrow and specific: Congress was authorized to “establish post offices and post roads,” to “fix the standards of weights and measures,” and to “grant letters of marque and reprisal” for the arming of ships to capture enemy cargo in wartime. Others were broad and momentous: Congress was empowered to “lay and collect taxes” in order to “provide for the common defense and general welfare of the United States,” to “borrow money on the credit of the United States,” to “regulate commerce with foreign nations, and among the several states,” and—after much debate over the respective powers of Congress and the president—to “declare war.” On this last point, Madison and Elbridge Gerry—who differed on almost everything else, including support for the final Constitution—joined in a motion to change the wording of the Committee on Detail, which had proposed granting Congress the power to “make war,” to the more limited power to “declare war.” Gerry spoke for both men in stating that he “never expected to hear in a republic a motion to empower the Executive alone to declare war.”

  The most divisive issue in the convention, even more than the powers of Congress, arose from the great disparties in population between the large and the small states. The question resolved around representation in the two houses of Congress. One group of delegates pressed for proportional representation in both houses, based on the total population of each state. Another faction argued strenuously that representation in both houses should be based on a combination of population and “wealth,” which became a euphemism in convention debates for slaves. A third group, largely but not exclusively from the smaller states, agreed with representation by population in the lower houses, but insisted that each state deserved equal representation in the Senate. Over the course of the summer, the heat of debate on these issues often matched the broiling temperatures in the convention chamber.

  The question of representation in Congress, or any legislative body, can be argued from differing principles of political philosophy. Radical democrats are generally loath to allow any deviation from the “one person, one vote” standard in every lawmaking body. Those of more “aristocratic” or elitist leanings are suspicious of popular government and advocate the allocation of legislative seats on such bases as geographic area—counting acres rather than voters—or interests such as farming, logging, or mining. Other issues often lurk in the background when these conflicting positions arc debated. During the Philadelphia convention of 1787, the real division was not between democrats and aristocrats, between delegates from rural or urban areas, or even between those from large or small states. The real issue was slavery.

  James Madison, perhaps more than any other delegate, understood the positions of each group and worked diligently to forge a workable compromise. His political philosophy, shaped by John Witherspoon at Princeton, and his own temperament as a compassionate person, combined to make Madison an advocate of radical democracy. On the other hand, as the son of a planter and slave owner from Virginia, he knew that delegates from states large in the “wealth” of slaves would insist that their interests be protected in Congress. Madison was also determined that the Philadelphia convention not end without agreement on a Constitution that established and empowered a strong national government From these differing perspectives, and with his ultimate goal in mind, he sensed—from one day to the next—the shifting coalitions on the question of congressional representation and tried to maneuver each side toward the “Great Compromise” that finally broke the impasse on this issue.

  Madison first urged compromise on July 9, after William Paterson of New Jersey had urged that each state have just one vote in the Senate. Paterson had earlier introduced a plan for a national government that called for modest revisions in the Articles of Confederation and the retention of sovereignty in each state. Madison considered the New Jersey Plan, as it came to be called,
as the most serious threat to his Virginia Plan, and he considered Paterson a formidable rival in the convention. Both men were Princeton graduates, but Paterson epitomized the elitism that Madison deplored; he wrote favorably of the “good breeding” that produced the “true gentlemen” who were best fitted to govern the masses. Paterson had no deep-rooted objection to slavery, but he appealed to its opponents in seeking to maintain the powers of the smaller states. Madison recorded Paterson as stating that “he could regard negro slaves in no light but as property. They have no free agents, have no personal liberty, no faculty of acquiring property, but on the contrary are themselves property, and like other property entirely at the will of the master.”

  Paterson made these remarks as matters of fact, with no moral judgment attached. He went on to pose a rhetorical question about representation in state legislatures: “Has a man in Virginia a number of votes in proportion to the number of his slaves?” The answer was obvious: he did not. “And if Negroes are not represented in the states to which they belong,” Paterson continued, “why should they be represented in the general government?” His point was clear, but his purpose was devious. Paterson sounded like a true democrat when he asked another rhetorical question: “What is the true principle of representation?” He answered that it was based on “the expedient” of choosing a small number of representatives “in place of the inconvenient meeting of the people themselves.” Paterson had only disdain for “the people” themselves—at least those without property—but he wanted to prevent states with small white populations but large numbers of slaves, such as Georgia and South Carolina, from outvoting states like New Jersey and New Hampshire in the federal Congress.