Journal of the Federal Convention June 6th 1787

Democratic v. Republican Principles. State Legislatures Elect First Branch. Most Excellent Madison Speech. Council of Revision.

Mr. PINKNEY according to previous notice & rule obtained, moved "that the first branch of the national Legislature be elected by the State Legislatures, and not by the people." contending that the people were less fit Judges in such a case, and that the Legislatures would be less likely to promote the adoption of the new Government, if they were to be excluded from all share in it.

Mr. GERRY. Much depends on the mode of election. In England, the people will probably lose their liberty from the smallness of the proportion having a right of suffrage. Our danger arises from the opposite extreme: hence in Massts. the worst men get into the Legislature. Several members of that Body had lately been convicted of infamous crimes. Men of indigence, ignorance & baseness, spare no pains, however dirty to carry their point agst. men who are superior to the artifices practised. He was not disposed to run into extremes. He was as much principled as ever agst. aristocracy and monarchy. It was necessary on the one hand that the people should appoint one branch of the Govt. in order to inspire them with the necessary confidence. But he wished the election on the other to be so modified as to secure more effectually a just preference of merit. His idea was that the people should nominate certain persons in certain districts, out of whom the State Legislatures shd. make the appointment.

Mr. WILSON. He wished for vigor in the Govt., but he wished that vigorous authority to flow immediately from the legitimate source of all authority. The Govt. ought to possess not only 1st. the force, but 2dly. the mind or sense of the people at large. The Legislature ought to be the most exact transcript of the whole Society. Representation is made necessary only because it is impossible for the people to act collectively. The opposition was to be expected he said from the Governments, not from the Citizens of the States. The latter had parted as was observed [by Mr. King] with all the necessary powers; [FN1] and it was immaterial to them, by whom they were exercised, if well exercised. The State officers were to be the losers of power. The people he supposed would be rather more attached to the national Govt. than to the State Govts. as being more important in itself, and more flattering to their pride. There is no danger of improper elections if made by large districts. Bad elections proceed from the smallness of the districts which give an opportunity to bad men to intrigue themselves into office.

Mr. SHERMAN. If it were in view to abolish the State Govts. the elections ought to be by the people. If the State Govts. are to be continued, it is necessary in order to preserve harmony between the National & State Govts. that the elections to the former shd. be made by the latter. The right of participating in the National Govt. would be sufficiently secured to the people by their election of the State Legislatures. The objects of the Union, he thought were few. 1. [FN2] defence agst. foreign danger. 2 [FN2] agst. internal disputes & a resort to force. 3. [FN2] Treaties with foreign nations. 4 [FN2] regulating foreign commerce, & drawing revenue from it. These & perhaps a few lesser objects alone rendered a Confederation of the States necessary. All other matters civil & criminal would be much better in the hands of the States. The people are more happy in small than [FN3] large States. States may indeed be too small as Rhode Island, & thereby be too subject to faction. Some others were perhaps too large, the powers of Govt. not being able to pervade them. He was for giving the General Govt. power to legislate and execute within a defined province.

Col. MASON. Under the existing Confederacy, Congs. represent the States [FN4] not the people of the States: their acts operate on the States, not on the individuals. [FN5] The case will be changed in the new plan of Govt. The people will be represented; they ought therefore to choose the Representatives. The requisites in actual representation are that the Reps. should sympathize with their constituents; shd. think as they think, & feel as they feel; and that for these purposes shd. even be residents among them. Much he sd. had been alledged agst. democratic elections. He admitted that much might be said; but it was to be considered that no Govt. was free from imperfections & evils; and that improper elections in many instances, were inseparable from Republican Govts. But compare these with the advantage of this Form in favor of the rights of the people, in favor of human nature. He was persuaded there was a better chance for proper elections by the people, if divided into large districts, than by the State Legislatures. Paper money had been issued by the latter when the former were against it. Was it to be supposed that the State Legislatures then wd. not send to the Natl. legislature patrons of such projects, if the choice depended on them.

Mr. MADISON considered an election of one branch at least of the Legislature by the people immediately, as a clear principle of free Govt. and that this mode under proper regulations had the additional advantage of securing better representatives, as well as of avoiding too great an agency of the State Governments in the General one.

He differed from the member from Connecticut [Mr. Sherman] in thinking the objects mentioned to be all the principal ones that required a National Govt. Those were certainly important and necessary objects; but he combined with them the necessity of providing more effectually for the security of private rights, and the steady dispensation of Justice. Interferences with these were evils which had more perhaps than any thing else, produced this convention. Was it to be supposed that republican liberty could long exist under the abuses of it practised in some of the States.

The gentleman had admitted that in a very small State, faction & oppression wd. prevail. It was to be inferred then that wherever these prevailed the State was too small. Had they not prevailed in the largest as well as the smallest tho' less than in the smallest; and were we not thence admonished to enlarge the sphere as far as the nature of the Govt. would admit. This was the only defence agst. the inconveniencies of democracy consistent with the democratic form of Govt.

All civilized Societies would be divided into different Sects, Factions, & interests, as they happened to consist of rich & poor, debtors & creditors, the landed, the manufacturing, the commercial interests, the inhabitants of this district or that district, the followers of this political leader or that political leader, the disciples of this religious Sect or that religious Sect. In all cases where a majority are united by a common interest or passion, the rights of the minority are in danger. What motives are to restrain them? A prudent regard to the maxim that honesty is the best policy is found by experience to be as little regarded by bodies of men as by individuals. Respect for character is always diminished in proportion to the number among whom the blame or praise is to be divided. Conscience, the only remaining tie, is known to be inadequate in individuals: In large numbers, little is to be expected from it. Besides, Religion itself may become a motive to persecution & oppression. -These observations are verified by the Histories of every Country antient & modern. In Greece & Rome the rich & poor, the creditors & debtors, as well as the patricians & plebians alternately oppressed each other with equal unmercifulness. What a source of oppression was the relation between the parent cities of Rome, Athens & Carthage, & their respective provinces: the former possessing the power, & the latter being sufficiently distinguished to be separate objects of it?

Why was America so justly apprehensive of Parliamentary injustice? Because G. Britain had a separate interest real or supposed, & if her authority had been admitted, could have pursued that interest at our expence. We have seen the mere distinction of colour made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man. What has been the source of those unjust laws complained of among ourselves? Has it not been the real or supposed interest of the major number? Debtors have defrauded their creditors. The landed interest has borne hard on the mercantile interest. The Holders of one species of property have thrown a disproportion of taxes on the holders of another species. The lesson we are to draw from the whole is that where a majority are united by a common sentiment, and have an opportunity, the rights of the minor party become insecure. In a Republican Govt. the Majority if united have always an opportunity. The only remedy is to enlarge the sphere, & thereby divide the community into so great a number of interests & parties, that in the 1st. place a majority will not be likely at the same moment to have a common interest separate from that of the whole or of the minority; and in the 2d. place, that in case they shd. have such an interest, they may not be [FN6] apt to unite in the pursuit of it. It was incumbent on us then to try this remedy, and with that view to frame a republican system on such a scale & in such a form as will controul all the evils wch. have been experienced.

Mr. DICKINSON considered it as [FN7] essential that one branch of the Legislature shd. be drawn immediately from the people; and as expedient that the other shd. be chosen by the Legislatures of the States. This combination of the State Govts. with the national Govt. was as politic as it was unavoidable. In the formation of the Senate we ought to carry it through such a refining process as will assimilate it as near as may be to the House of Lords in England. He repeated his warm eulogiums on the British Constitution. He was for a strong National Govt. but for leaving the States a considerable agency in the System. The objection agst. making the former dependent on the latter might be obviated by giving to the Senate an authority permanent & irrevocable for three, five or seven years. Being thus independent they will speak [FN8] & decide with becoming freedom.

Mr. READ. Too much attachment is betrayed to the State Governts. We must look beyond their continuance. A national Govt. must soon of necessity swallow all of them [FN9] up. They will soon be reduced to the mere office of electing the National Senate. He was agst. patching up the old federal System: he hoped the idea wd. be dismissed. It would be like putting new cloth on an old garment. The confederation was founded on temporary principles. It cannot last: it cannot be amended. If we do not establish a good Govt. on new principles, we must either go to ruin, or have the work to do over again. The people at large are wrongly suspected of being averse to a Genl. Govt. The aversion lies among interested men who possess their confidence.

Mr. PIERCE was for an election by the people as to the 1st. branch & by the States as to the 2d. branch; by which means the Citizens of the States wd. be represented both individually & collectively.

General PINKNEY wished to have a good National Govt. & at the same time to leave a considerable share of power in the States. An election of either branch by the people scattered as they are in many States, particularly in S. Carolina was totally impracticable. He differed from gentlemen who thought that a choice by the people wd. be a better guard agst. bad measures, than by the Legislatures. A majority of the people in S. Carolina were notoriously for paper money as a legal tender; the Legislature had refused to make it a legal tender. The reason was that the latter had some sense of character and were restrained by that consideration. The State Legislatures also he said would be more jealous, & more ready to thwart the National Govt., if excluded from a participation in it. The Idea of abolishing these Legislatures wd. never go down.

Mr. WILSON, would not have spoken again, but for what had fallen from Mr. Read; namely, that the idea of preserving the State Govts. ought to be abandoned. He saw no incompatibility between the National & State Govts. provided the latter were restrained to certain local purposes; nor any probability of their being devoured by the former. In all confederated Systems antient & modern the reverse had happened; the Generality being destroyed gradually by the usurpations of the parts composing it.

On the question for electing the 1st. branch by the State Legislatures as moved by Mr. Pinkney: it was negatived:

Mass. no. Ct. ay. N. Y. no. N. J. ay. Pa. no. Del. no. Md. no. Va. no. N. C. no. S. C. ay. Geo. no. [FN10]

Mr. WILSON moved to reconsider the vote excluding the Judiciary from a share in the revision of the laws, and to add after "National Executive" the words "with a convenient number of the national Judiciary"; remarking the expediency of reinforcing the Executive with the influence of that Department.

Mr. MADISON 2ded. the motion. He observed that the great difficulty in rendering the Executive competent to its own defence arose from the nature of Republican Govt. which could not give to an individual citizen that settled pre-eminence in the eyes of the rest, that weight of property, that personal interest agst. betraying the national interest, which appertain to an hereditary magistrate. In a Republic personal merit alone could be the ground of political exaltation, but it would rarely happen that this merit would be so pre-eminent as to produce universal acquiescence.

The Executive Magistrate would be envied & assailed by disappointed competitors: His firmness therefore wd. need support. He would not possess those great emoluments from his station, nor that permanent stake in the public interest which wd. place him out of the reach of foreign corruption: He would stand in need therefore of being controuled as well as supported. An association of the Judges in his revisionary function wd. both double the advantage and diminish the danger. It wd. Also enable the Judiciary Department the better to defend itself agst. Legislative encroachments.

1st. that the Judges ought not to be subject to the bias which a participation in the making of laws might give in the exposition of them. 2dly. that the Judiciary Departmt. ought to be separate & distinct from the other great Departments. The 1st. objection had some weight; but it was much diminished by reflecting that a small proportion of the laws coming in question before a Judge wd. be such wherein he had been consulted; that a small part of this proportion wd. be so ambiguous as to leave room for his prepossessions; and that but a few cases wd. probably arise in the life of a Judge under such ambiguous passages. How much good on the other hand wd. proceed from the perspicuity, the conciseness, and the systematic character wch. the Code of laws wd. receive from the Judiciary talents. As to the

2d. objection, it either had no weight, or it applied with equal weight to the Executive & to the Judiciary revision of the laws. The maxim on which the objection was founded required a separation of the Executive as well as of [FN11] the Judiciary from the Legislature & from each other. There wd. in truth however be no improper mixture of these distinct powers in the present case. In England, whence the maxim itself had been drawn, the Executive had an absolute negative on the laws; and the supreme tribunal of Justice [the House of Lords] formed one of the other branches of the Legislature. In short whether the object of the revisionary power was to restrain the Legislature from encroaching on the other co-ordinate Departments, or on the rights of the people at large; or from passing laws unwise in their principle, or incorrect in their form, the utility of annexing the wisdom and weight of the Judiciary to the Executive seemed incontestable.

Mr. GERRY thought the Executive, whilst standing alone wd. be more impartial than when he cd. be covered by the sanction & seduced by the sophistry of the Judges.

Mr. KING. If the Unity of the Executive was preferred for the sake of responsibility, the policy of it is as applicable to the revisionary as to the Executive power.

Mr. PINKNEY had been at first in favor of joining the heads of the principal departmts. the Secretary of War, of foreign affairs &-in the council of revision. He had however relinquished the idea from a consideration that these could be called in [FN12] by the Executive Magistrate whenever he pleased to consult them. He was opposed to an [FN13] introduction of the Judges into the business.

Col. MASON was for giving all possible weight to the revisionary institution. The Executive power ought to be well secured agst. Legislative usurpations on it. The purse & the sword ought never to get into the same hands whether Legislative or Executive.

Mr. DICKINSON. Secrecy, vigor & despatch are not the principal properties reqd. in the Executive. Important as these are, that of responsibility is more so, which can only be preserved; by leaving it singly to discharge its functions. He thought too a junction of the Judiciary to it, involved an improper mixture of powers.

Mr. WILSON remarked, that the responsibility required belonged to his Executive duties. The revisionary duty was an extraneous one, calculated for collateral purposes.

Mr. WILLIAMSON, was for substituting a clause requiring 2/3 for every effective act of the Legislature, in place of the revisionary provision.

On the question for joining the Judges to the Executive in the revisionary business, Mass. no. Cont. ay. N. Y. ay. N. J. no. Pa. no. Del. no. Md. no. Va. ay. N. C. no. S. C. No. Geo. no. [FN14]

Mr. PINKNEY gave notice that tomorrow he should move for the reconsideration of that clause in the sixth Resolution adopted by the Comme. which vests a negative in the National Legislature on the laws of the several States.

FN2 The figures "1," "2," "3" and "4" are changed to "first," "secondly," etc. in the transcript.

FN10 In the transcript the vote reads "Connecticut, New Jersey, South Carolina, aya-3; Massachusetts, New York, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, Georgia, no-8.

FN14 In the transcript the vote reads: "Connecticut, New York, Virginia, aye- 3; Massachusetts, New Jersey, Pennsylvania, Delaware, Maryland, North Carolina, South Carolina, Georgia, no-8."

(My comments are in parentheses.)

(Today we see more of the tension between democratic and republican principles. The foundation of an American republic must rest on the people, but not so much as to threaten our liberties with too much democracy)

Charles Pinckney (SC) and John Rutlidge (SC) proposed state legislature election of members to the House of Reps. The States will be less likely to oppose a plan with their participation.

(Recall last week, the Committee of the Whole accepted 6-2-2, popular election to the House of Reps. The 2-2 votes were the small States of NJ, SC, CN and DE. The overhanging question was, “Proportional or by equal State suffrage popular election?” There was no excess of trust between State delegations.)

Elbridge Gerry, experienced in Massachusetts politics, agreed and didn’t think much of the people’s judgment. At home, the people sent rogues and criminals to represent them.

(Mr. Gerry used the word, “indigence.” In those days, indigence truly meant sloth and idleness. Labor was in short supply and therefore paid relatively well. Any man, absent mental or physical deficiencies could work and soon buy his own plot. Only the idiots and lazy did not have, or were not working toward real property. Property gave man a positive stake in society and made him worthy of a voice in government.)

Mr. Gerry was as opposed as anyone to aristocrats and monarchs. He proposed the people nominate a slate of reps for appointment by the legislature. This would filter out the unfit.

(With such a system today, would there be as many left wing, anti-constitutional moonbats in Congress? Would Pelosi and Sheila Jackson Lee ideologues outnumber the Paul Ryans?)

James Wilson (PA) believed the only reason for representatives was because it was impractical for the people to vote themselves. He favored “vigor” in the government, but its power must reside in the people. He trusted large electoral districts more than small ones, in which elections are more susceptible to corruption.

(Wilson was a major Convention influence; he opposed ratification of the most democratic State Constitution of the time, that of Pennsylvania, yet appeared openly supportive of government by plebiscite.)

Roger Sherman (CN) touched on several points. He boldly asserted that elections by the people would spell the end of state governments. To preserve the states, give them a stake in the new government. He reminded the convention why they were developing a plan of government in the first place.

1. National Defense

2. Deal with internal disputes and suppress rebellions

3. Treaties

4. Regulation and taxation of foreign commerce

He questioned the viability of states so small and naturally contentious as Rhode Island.

Mr. Sherman also brought up the necessity of enumerated powers.

George Mason (VA) was not all that supportive of democratic elections, yet the people must be represented by those who know them. No government was free from imperfections. When faced with the people on one hand and state legislatures on the other, the people must have their say, for it is “in favor of human nature.” He accused the states, and not the people, of supporting paper money.

(I believe Mr. Mason made the first Convention reference to Natural Rights.)

James Madison (VA) supported representatives selected by the people in at least one house of the legislature. Too much direct state involvement was a bad idea. He thought Roger Sherman (CN)’s list was necessary but incomplete.

Madison added two central concepts to the list, private rights and the dispensation of justice. Abuse of these by some of the states was largely responsible for convening the convention.

Madison’s follow on speech had me somewhat puzzled at first. He just added insecurity of private rights and dispensation of justice to Sherman’s list of problems to address. They were traditionally preserved, if at all, not by law, but as an offshoot produced by various opposing interest groups going at each other’s throats. There will always be and no one can prevent factions of rich/poor, debtors/creditors, landed/ manufacturing, the “inhabitants of this district or that district, the followers of this political leader or that political leader, the disciples of this religious Sect or that religious Sect . . . “ If I am correctly reading Madison, our rights will not be secure even if there are numerous factions such that no group of them can form a majority to abuse the rights of the rest(?) Also, without naming Montesquieu with whom he disagreed, he proffered that a large republic vice a small one would by its size, better protect liberty.

(The philosophical roadmap of the time directed only small polities to republican government. Madison proffered the opposite was true; a large republic would make it difficult for various factions to collect their forces and oppress others. Combined with separation of powers, enumerated powers, States . . . his argument made sense.)

More comfort came at the end of his speech; he says, “It was incumbent on us then to try this remedy, and with that view to frame a republican system on such a scale & in such a form as will controul all the evils wch. have been experienced.” (Perhaps by the word “form,” he meant such concepts as limited government, enumerated powers, and the structure that eventually became our Constitution.)

(Madison would expand these thoughts in The Federalist #10. What he and the other Framers developed was a break from the ancients; it was a new theory of government.)

John Dickinson (DE) hit on what would be the eventual compromise; a Congress composed of a popularly elected House and a state legislature appointed Senate. Comparing the Senate to the House of Lords, he supported a strong central government but with adequate agency in the states. (By the law he pushed in DE, his delegation could not support a National Legislature without equal State Representation.)

Judge George Read (DE) dramatically said adios to the states. There was too much attachment to the old system. Why patch the new system with trappings of the old? The confederacy cannot be improved, dump it! He attributed opposition to the general government as coming from self serving men, not the people.

(Read’s comment is surprising as it comes from a small state delegate. He did not support state participation. Large States would soon enough overwhelm the small, so be done with States altogether.)

William Pierce (GA) supported a popularly elected House and State appointed Senate. GA at this time was sparsely settled, a small state in terms of population.

General Pinckney (SC) had less admiration and respect for the people. In SC they supported paper money. They were widely scattered, which would make voting attendance difficult. No, a considerable amount of power should remain with the states. Absent their participation in the general government, expect resistance and opposition. The idea would not go away.

James Wilson (PA) did not think keeping state governments was incompatible with the plan as long as the states kept to local purposes. Problems under the confederacy were attributed as much to state intransigence as to the structure of the confederacy itself. It was thought necessary to form a new government in which the states, while participants, could not muck up the works as they once did.

Pierce Butler (SC) opposed deciding the mode of election until the ratio of representation was determined. Both wealth and the numbers of free citizens must be considered.

(Mr. Butler’s comments here are from Rufus King’s notes, not Madison’s. Southern States well knew most of the rest of the country opposed slavery and wished to be done with it. Many clauses/resolutions were not considered in isolation, for one impacted another. In this case, slavery must be accounted for in representation to the House of Representatives. In another for instance, the power of the Executive and length of his term of office was affected by his mode of election.)

The motion to have state legislatures appoint members of the first house was defeated, 8-3.

James Wilson (PA) wished to revisit the Council of Judicial Revision.

James Madison (VA) seconded the motion. The executive could use Judicial help against the legislature. He did not see our executive becoming as strong as a monarch in part because the Executive was one of us. A hereditary monarch also possessed better defenses against the other branches of government because of his “pre-eminence in the eyes of the rest, that weight of property, that personal interest agst. betraying the national interest . . .”

He foresaw political attacks and possible foreign influence against the Executive. A panel of judges would “double the advantage and diminish the danger.” Madison then reflected a widespread concern that the national legislature would be as powerful as state legislatures, where they overwhelmed the executive and judicial branches. A judicial revision council would serve to protect the judiciary as well.

Madison minimized the problem of judges adjudicating law they had a hand in affirming. Only a small percentage of such laws would come into question, and just think of the wisdom the judiciary would bring to the table! In his second objection Madison said that if an executive veto was appropriate, with no violation of the separation of powers concept, well, then a judicial veto should be as well.

He closed with another reminder of his concern over an overreaching legislature that would roll the other branches.

(We know the Judiciary did not get the power Madison supported. For good reason. To veto a bill is to enter the political arena. As long as judges did not have to face the people in elections, leave it to the executive and legislative branches to knock each other about over political considerations.)

Elbridge Gerry (MA) saw no value in being “seduced by the sophistry of the Judges.”

Charles Pinckney (SC) opposed bringing in judges.

George Mason (VA) also feared Congressional dominance and supported a Council of Revision.

John Dickinson (DE) opposed mixing the judicial and executive powers.

Hugh Williamson (NC) proposed to require 2/3 approval in Congress rather than judicial revision.

The motion to add judges to the veto business failed 8-3.

Charles Pinckney (SC) would tomorrow reconsider Congressional veto of state laws.

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