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James Madison’s Critique Of The Senate Still Holds


Charlottesville

September 18, 2022


I did not know. And I bet the Founding Fathers had no idea how influential this "win" by the smaller states would be 200+ years later.


The ‘father of the Constitution’ wanted seats in the upper house to be based on population, and he lamented that equality for each state was placed beyond the reach of amendment


James Madison’s heart was clearly not in his argument in Federalist #62. Writing in late February 1788, when only six states had yet ratified the Constitution, he had to explain why the Federal Convention had devised the Senate as it did, giving tiny Delaware the same weight as his own Virginia, the nation’s most populous state. This decision, Madison wrote, was “evidently the result of compromise between the opposite pretensions of the large and the small states.” There was no way to justify it on principle, he went on, because it was “a part of the constitution which is allowed on all hands to be the result not of theory, but ‘of a spirit of amity, and that mutual deference and concession which the peculiarity of our political situation rendered indispensable.’”


The words that Madison quoted came from the letter in which George Washington, the Convention’s presiding officer, had announced the completion of its work on Sep. 17, 1787—the date we now celebrate (but not widely enough) as Constitution Day. What this diplomatic language concealed was Madison’s deep disappointment not only with the rule of voting in the Senate but also with the fact that this was the one provision of the new Constitution not subject to amendment. Today, when controversies over the performance of the Senate have grown more heated, Madison’s objections remain pertinent.


Madison assumed that if the more populous states could reach consensus on a new constitution, the less populous ones would ultimately yield.

Even before the Federal Convention came to order in late May 1787, the delegations from the large states of Virginia and Pennsylvania had privately discussed whether the body should follow a different rule of voting than the one the Continental Congress had used since 1774, giving each state one vote. The Pennsylvanians vigorously favored denying the small states an equal vote. But as Madison recorded in his notes, rather than give the small states an ultimatum at the outset, the Virginians thought “it would be easier to prevail” on them to yield their equal standing “in the course of the deliberations.”

In setting his agenda for the Convention, Madison assumed that if the more populous states could reach consensus on a new constitution, the less populous ones would ultimately yield to their decision. Madison believed that the small states could be persuaded that they neither needed nor deserved an equal vote in either house of Congress. Under the Virginia Plan proposed by his “dear friend” Edmund Randolph when debate opened, some scheme of proportional representation allotted by population and wealth would apply to both houses of the new Congress. But Madison’s confidence proved misguided. Small states such as Delaware, Connecticut and New Hampshire persisted in their commitment to equality in the Senate. The decisive vote on July 16 is usually called the Great Compromise, but in reality it was a victory for the small states: By a vote of five states to four, with one state (populous Massachusetts) divided, every state, regardless of size, would enjoy equal representation in the Senate.

The vote left the delegates from the populous states in disarray. The next morning they caucused to assess the situation. As Madison recorded the conversation, he and some of his allies thought that the large states should proceed on their own and propose a constitution based on proportional voting in both houses of Congress. The others felt they should “yield to the smaller States,” even if that meant proposing a constitution that was “imperfect & exceptionable.”

This disagreement doomed any stratagem that the large states could have launched. It committed the U.S. to a scheme of political representation that empowered an artificial minority that existed merely because of the boundaries that defined the states as geographic units.

If this failure were not consequential enough, on Sep. 15, the Convention’s last day of debate, the framers discussed the rules for constitutional amendment set in Article V. When Roger Sherman of Connecticut proposed a “further proviso” declaring that no state shall be “deprived of its equal vote in the Senate,” Madison replied that such a statement would invite other states to “insist on” their own special provisos. The Convention then decisively rejected Sherman’s motion. The principle of an equal vote in the Senate for each state would thus be subject to later review and revision. But that did not end the discussion. As Madison ruefully noted, “The circulating murmurs of the small States” swept across the chamber. Anxious to complete their work, and to portray the Constitution as the product of a consensus binding all the states, the framers quickly reversed course. Without further debate, they immediately made the equal state vote in the Senate the only clause not subject to amendment.

How different would American politics have been if the large states had prevailed? How different would American politics have been if the large states had prevailed on these two crucial votes? Such counterfactuals are intriguing but always matters of speculation. More important are Madison’s arguments, which have lost none of their power in the intervening years.

The standard rationale for the equal state vote in the Senate is that residents of less populous states have distinctive interests that need special protection. Conversely, the more populous states are thought to share some other set of interests that might incline them to dominate their less populous neighbors.

Madison understood the absurdity of these views. People never vote on the basis of the size of the state in which they live—except in a situation like 1787, when they are voting on the rules of voting and have a vested advantage to preserve. As citizens or lawmakers, we vote on the basis of our interests and opinions, age and occupation, religious or ethnic or racial identity, and so on. But we never ask, what’s good for the small states or the large states?

This was why Madison and his allies thought the small states could be persuaded. On what basis could Virginia, Pennsylvania and Massachusetts ever form a pact to rule the other states? The great differences among the states, he explained, had far more to do with their climate, which shaped their economies, and the resulting presence or absence of slave labor. “In point of manners, religion and the other circumstances, which sometimes beget affection between different communities,” Madison said, the larger states were no more connected to each other than to the other states. When pressed to answer these points, the best response that the Connecticut delegate Oliver Ellsworth could muster was that “altho’ no particular abuses could be foreseen by him, the possibility of them would be sufficient to alarm him.”

The idea that citizens of the less populous states needed special protection in one house of Congress remains the most enduring fallacy in the American constitutional tradition. Senators from Wyoming and Vermont don’t make common cause with each other simply because these are our least populous states, and there is no dangerous large-state alliance between California and Texas.

The interests and preferences that we share are distributed across the national landscape, and even in an era of partisan polarization, the size of our state, as Madison would have predicted, makes no difference in how it votes. As we commemorate the 235th anniversary of the framing of the Constitution, the flawed foundation of the Senate remains a disquieting fact we still need to confront. Mr. Rakove is the William Robertson Coe Professor of History and American Studies Emeritus at Stanford University and the author of “Original Meanings: Politics and Ideas in the Making of the Constitution,” which won the Pulitzer Prize in history.

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