James H. Hutson concludes his valuable 1984 survey of two hundred years of Constitutional scholarship on a pessimistic note. Scholarship, says Hutson, is at a standstill because there is no consensus on how to interpret what took place at the Constitutional Convention of 1787. Into the vacuum created by the protracted war between conflict and consensus historians, statisticians like Calvin Jillson have entered. Hutson’s pessimism (1984) now seems to border on skepticism (1986) over a possible way out of this situation. After demonstrating convincingly that Madison did not doctor his Notes and that Yates’ Notes are unreliable—thus I use only Madison’s Notes for my own argument in this paper—Hutson nevertheless raises serious questions about relying on Madison’s Notes as our source. Although Madison’s Notes have “integrity,” they report only a small fraction of what was actually said on any given day. Hutson’s argument, in effect, is that we cannot hope to figure out what the delegates meant if we have a massively incomplete account of what they said. But Hutson has focused on the quantitative side of the record. Madison’s Notes do contain sufficient material to reconstruct what was at stake at the Convention as well as the conceptual framework within which the delegates articulated their opinions. An incomplete record is not the same thing as a record which is fundamentally flawed. Nor does the absence of scholarly consensus mean the same thing as a standstill in scholarship.
On the contrary, vast improvements have been made in scholarship on the Convention. For example, scholars no longer have to conduct their investigations within the framework provided by Charles Beard (1913). The Constitution, said Beard, was an economic document written by holders of personal property (securities) and opposed by holders of real property (land). This crude form of class analysis became the established orthodoxy until the 1950s. It is true that much of what the Framers said had something to do with emitting bills of credit, the obligation of contracts, and the payment of debts. Nevertheless, they were there to write a constitution.
Much of the credit for liberating scholarship from the perspective of economic determinism, as well as from the parallel political teaching of James Allen Smith and Vernon Parrington that the Framers created an anti-democratic document, is due to the pluralist perspective articulated by Robert E. Brown, Forrest McDonald and John Roche. The pluralist approach provides an historical answer to Beard’s focus on the immediate economic interests of the Framers. But the pluralist response to Beard – that America in 1787 was a middle-class democracy and that delegates on both sides of the debate held personal and real property—does not go far enough. Suffice it to note that the delegates did not consider themselves to be meeting in Philadelphia six hours a day, five days a week, and for four hot summer months, for the purpose of passing an interstate highway act or hammering out a reform of the tax code, though much of what they said had to do with interstate commerce and the powers of taxation. Moreover, to interpret the behavior of the delegates as if they were twentieth-century members of Congress is to suggest that nothing out of the ordinary was taking place in 1787. But the delegates gathered in Philadelphia to write a constitution. And central to framing a constitution was a concept of justice which guided the delegates in their discussion of contracts, commerce and credit.
Certainly it would be presumptuous of me to suggest that we should read the Convention as if it has never been read before. For the retrieval of the philosophic grounding of the politics at the Convention, we owe much to the pioneering efforts of Martin Diamond and Herbert J. Storing. They helped us to focus on what was at stake in an enduring sense. As a consequence, any contribution which I might make to our understanding of the delegates who opposed the establishment of a national government requires that the Diamond and Storing theses be taken seriously. I argue, however, that Diamond and Storing did not go far enough. They did not see the story through to the end, and they did not fully capture the principle which guided the delegates who defended federalism.
In this paper, I propose that the principle of federalism was grounded in justice. Three aspects of justice will be emphasized: the rule of law, distributive justice and human justice. Contrary to Diamond and Storing—as well as Riker, Wolfe and Zuckert—I argue that the “true” federalists at the Convention can be found in the Connecticut, Delaware, New Jersey and New York delegations and in Luther Martin of the Maryland delegation. Although there were differences between and among the delegations they argued that the established law, the equality of the states and the abolition of the slave trade were the proper footing on which the deliberations should take place. Because the debates over the Gerry Report in general, and the debate on July 16 in particular, play a terminal rather than a central role in the work of Diamond and Storing, I will give special textual focus to these dimensions of the Convention. I will use this critical two-week period in early July as a guide to what took place both prior to and subsequent to the Connecticut Compromise.
The usual method is to start at the beginning and trace the emergence and resolution of the crisis that engulfed the delegates. This is particularly true of scholars like Diamond-to whom we owe the “true” federalist nomenclature—and Storing—to whom we owe the strong case in favor of the state sovereignty argument—who together claim that fundamental principles, and not simply interests, were at stake at the Convention. Along the way, certain critical days are mentioned. For Diamond, May 30, June 6, and June 19 stand out. For Storing, June 18, June 30, and July 2 are turning points in the life of the Convention. This approach is also true of scholars like Christopher Wolfe—who explicitly attempts to save Diamond from himself in order to rescue the extended republic thesis—and Michael Zuckert—who implicitly attempts to save Storing from himself in order to preserve federalism from the progeny of the New Dealers. Both together critique Diamond and Storing from within the framework of principle. What the work of Diamond, Storing, Wolfe, and Zuckert—as well as that of Walter Berns, whose interpretation is neither wholly Diamond’s nor wholly Storing’s but a mixture of both—have in common is the rather abrupt termination of their coverage at July 16. Also missing is an appreciation of the extent to which the opponents of a national government appealed to a sense of justice. In this paper, I also rely on critical days—May 31, June 11, and July 2—but I avoid the pitfalls of the strictly chronological approach, go beyond July 16 and, most importantly, ground the arguments of the “true” federalists in a concept of justice.
A sort of compromise has now been reached between those scholars who see principle and those who see interest at work at the Convention. The latter, working within the Max Farrand-John Roche bundle-of-compromises tradition, are now perhaps more willing to grant that principle was operative prior to July 16. But they leave it up to the former to argue with each other over what principle was at stake. Or, like William H. Riker, scholars with an inclination for rational choice ignore the early part of the deliberations and instead explore the heresthetical pursuit of interests after July 16. For example, Riker trivializes the debates prior to July 16 in his 1983 American Political Science Association Presidential Address: “Of the 55 delegates, only four could be regarded as genuine Anti-Federalists, that is whole hearted supporters of provincial establishments” (p. 4). According to Riker, only Yates, Lansing, Mercer and Martin cared much for the state governments. And of these, only Martin stuck around long enough to make what, in effect, turns out to be no impact at all on the final outcome of the deliberations: Why, then, is the equality of state governments guaranteed by Article Five of the Constitution?
What does Riker say about the arguments of the delegates from New Jersey, Delaware and Connecticut? He tells us that they had as much distaste for state governments as fundamental institutions deserving constitutional protection as did Madison and Wilson. No proof is advanced on behalf of this interpretation, or the peculiar usage of the antifederalist nomenclature to describe positions at the Convention. Was Wilson being purely rhetorical when on June 19 he observed “that by a Natl. Govt. he did not mean one that would swallow up the State Govts. as seemed to be wished by some gentlemen. He was tenacious of the idea of preserving the latter?” Riker informs us that the delegates from the smaller states simply wanted to protect the interests of their individual states from the interfering interests of their neighboring states. Only one textual justification is given by Riker for his interpretation of the early part of the deliberations: “Pinckney predicted, cynically and correctly: `Give New Jersey an equal vote, and she will forget her scruples, and concur in the National system.”‘ Is this all there was at stake at the Convention prior to July 16? At least Pinckney admits that New Jersey had scruples. Moreover, as I will demonstrate, the demand for an equal vote is precisely the principle for which New Jersey and the delegates from four other states contended.
The scholars of principle—for example Diamond and Storing—are apparently willing to grant that interest was operative, but only after July 16. They permit interests to collide and collude, but only during the month of August. For example, prior to July 16, Storing tells us that abstract questions were debated and a practical answer was given. The delegates compromised not because they were horse traders, but because they were involved in political action. They had a deadline to meet and much was expected of them. But first, they had to settle the theoretical question, namely, the sovereignty of the union or the sovereignty of the states. After July 16, however, the debate became more concrete, complex, and interest-oriented: the north-south issue predominated. Yet Storing offers no evidence to support his view that slavery, for example, was an issue of interest rather than an issue of principle, or that the issue of slavery is a post- July 16 phenomenon. He quits his coverage with the Connecticut Compromise. For Diamond, on the other hand, the theoretical issue is the large republic vs. the small republic. According to Diamond, this issue was settled mainly in favor of the large republic on July 16 after which time particular compromises took place. That this scholarly division of labor between principle and interest conforms to the chronological division of principle and interest at the Convention has even been proven statistically by Jillson. Thus, Diamond’s extended republic-small republic thesis explains the events up to July 16, while John Roche’s interest-group liberalism explains the behavior of the delegates after the “critical election” of July 16.
The recent acceptance by political scientists of the ideological discovery of Whig historians that the principle at stake at the Convention—or more accurately in America between 1760-87—was indeed republicanism, but not the kind explained by Diamond, has not altered the statistically verified division between principle and interest at the Convention. For example, Jillson (1986) substituted the Pocock-Wood-Bailyn court-party vs. country-party republicanism for Diamond’s extended vs. small republicanism and found that the fit was good for the votes through July 16! Interest, not principle, still prevails after July 16 and principle, take your pick, prevails in the early going. How the Whig view of republicanism relates to the principle of federalism, something that the Diamond view of republicanism considered to be central, is not adequately explained by the Whig theory. (All this is separate from the methodological problems associated with Jillson’s use of rigorous statistical techniques to explain what happened at the Convention.) The Whig view of republicanism is interested in showing patterns of historical influence; it is not really interested in philosophical questions or locating the American Founding within an American context which, despite its particularity, appeals to principles grounded in the laws of nature or the American experience. In a sense, it substitutes a crude form of intellectual genealogy for Beard’s crude class analysis. Accordingly, both are ultimately unsatisfactory explanations of what was at stake in 1787.
The long and exhausting journey from the end of May to July 16 severely tests our intellectual and physical endurance to travel yet another seven weeks. But unlike many contemporary scholars, the Framers had the perseverance to see the story through to the end. They knew that not only interests but principles were at stake throughout the deliberations. Nor is it good enough to suggest that the true federalists, yet to be identified, “pooped out” or became disillusioned and went home; or that the delegates got tired and forgot what they were arguing about. The argument over principles managed to endure and was secured in the final document. But we do need to have a clear understanding of what principles were at stake. Was it Diamond’s extended republic vs. small republic? Or Storing’s union vs. states? With regard to the issue of federalism and antifederalism (as well as “true” federalists, “pure” federalists, and “genuine” federalists), we need to grasp more fully why Edmund Randolph, George Mason, and Elbridge Gerry refused to sign the Constitution. After all, their reasons for dissent were incorporated into the antifederalist attack on the Constitution. Were they, therefore, true federalists? According to Diamond and Storing, we must turn to the thought of the antifederalists to discover the articulation of the true federalist position. Did the authors of The Federalist not really want a national government? Did they not astutely bestow on themselves the name “Federalist” in order to secure the ratification of the Constitution? Such claims are central to the Diamond and Storing renditions. It is rather odd, therefore, that Diamond and Storing do not tell us why these three delegates refused to sign the Constitution. Finally, we must be careful not to read subsequent events – for example, the ratification controversy or the Civil War – back into the deliberations which took place in the summer of 1789.
The Storing Thesis
The stumbling block for scholars of principle has been the large state-small state dichotomy. This has been the framework within which scholars of interest operate. Thus it is important for Storing that the large states actually stood for principles associated with union and that the small states stood for principles associated with states. I believe that there is considerable truth to this. On July 14, for example, Roger Sherman “urged the equality of votes not so much as a security for the small States; as for the State Govts. which could not be preserved unless they were represented and had a negative in the Genl. Government.” Moreover, on June 16, in defense of the New Jersey plan, William Patterson argued that whether the structure of the Articles was kept, as he proposed, or abandoned, the states stood “on the footing of equal sovereignty.” And on July 2, when the Convention voted 5-5-1 (Georgia divided) on the proposition to permit equality of representation in the Senate, Randolph offered a compromise: “he would agree that in the choice of the Executive each state should have an equal vote.” In other words, Randolph recognized that the issue was equality of the states as states. What is missing from Storing’s approach, but present in the arguments of the delegates who opposed the adoption of a national plan, is a concept of justice which helps us to understand “the footing” of Sherman and Patterson, as well as the persistence of the delegates who argued on behalf of equal representation. In the same June 16 speech, Patterson asks: “if a proportional representation be right, why do we not vote so here?” He argued that the fundamental compact, the Articles of Confederation, to which the large states and the small states voluntarily agreed, required that a compact unanimously agreed to must be unanimously undone. Justice required that established law be observed.
If Storing is correct that the small state argument is actually an argument on behalf of the states, then why are there so many references made by the delegates themselves to the differences between small and large states? (This critique of Storing can be applied to Diamond who sees large republic-small republic rather than union-states as the critical divide.) For example, Sherman on June 11 stated that “the smaller states would never agree to the plan on any other principle than an equality of suffrage in that branch (Senate).” On June 20, Sherman informed the delegates that “the disparity of the states in point of size was the main difficulty.” And earlier, on June 9, Patterson “considered the proposition for a proportional representation as striking at the existence of the lesser states.” The delegates also make several references to other differences which distinguish the states from each other. What are we to make of Madison’s argument on June 30 that the great divide in America was really between the northern and the southern states? Or of Hamilton’s June 29 observation that” the only considerable distinction of interests, lay between the carrying of non-carrying States, which divide instead of uniting the largest States.” Or the remarks of other delegates that the conflict was between the commercial and agricultural states, or between distant and central states, or between eastern and western states? Storing dismisses these variations in his pursuit of the union-states dichotomy, and so does Diamond in his pursuit of the large republic-small republic dichotomy. Is there a principle which unites this disparity of delegate statements concerning what was at stake? I believe the answer is to be found in exploring their comments about justice.
Storing’s thesis is that the theoretical problem of the Articles of Confederation was that the aim of perpetual union, declared by the Articles, was to be secured on the basis of independent states. Those delegates at the Convention who wanted a firmer union emphasized the aim; those who wanted independent states emphasized the basis. Storing does not name names, but he certainly implies that those who opposed a firmer union were actually anti-union. They had to be persuaded to become pro-union. The Virginia Plan, Storing continues, secured the aim by calling for an independent nation. By way of contrast, the New Jersey Plan granted powers of taxation, commerce, and coercion to Congress while retaining the basis of the Articles. Storing correctly demonstrates that Patterson offered two arguments on behalf of the New Jersey Plan: (1) that it was within the powers of the Convention, and (2) that it would meet with the approval of the people. According to Storing, Hamilton, on June 18, reminded the delegates that they should be interested in aim and not basis. In fact, says Storing, Hamilton’s alternative plan made the Virginia Plan look moderate and therefore more acceptable. He offers no proof on behalf of this claim. Who needed convincing that the Virginia Plan looked moderate, and were they convinced? Storing does not tell us. Like Diamond, he reads the Convention through the eyes of the nationalists; moreover he assumes that the nationalists were, and believed themselves to be, in the driver’s seat.
After the defeat of the New Jersey Plan on June 19, Storing continues, Luther Martin turned to the Declaration of Independence to demonstrate his argument that independent states created the union and then the union, in the form of the Articles, confirmed the independence of the states. On June 27, Martin added two “new arguments: the Articles can only be revoked with the consent of the states, and partial confederacies are better than a consolidated plan. This last argument was recklessly articulated by Gunning Bedford on June 30 in his “small states will seek foreign alliances to relieve the oppression of the large states” speech. This speech represents the nadir of the Convention for Storing. It is important that Storing views the nadir as also revealing the true position of those who opposed a national government. In other words, they were willing to dissolve the union and seek foreign alliance (Bedford) or partial confederacies (Martin) in order to preserve the independence of the states. Fortunately, says Storing, the cooler heads of Franklin and Johnson prevailed, Abraham Baldwin of Georgia on July 2 voted against his convictions that proportional representation should prevail in both houses, good fortune came in the form of the July 4 holiday, and the Gerry Committee was created to resolve the dispute over sovereignty. The compromise was accepted on July 16. This is Storing’ s account of the battle between those who favored union and those who wanted independent states. And thus the story ends.
Again, what is lacking in Storing’ s account is a perspective of justice. Implicit in the legal argument advanced by Patterson and Lansing was a challenge to invoke the principles of the Declaration on behalf of the abolition of the existing government. On June 20, Lansing complimented Randolph for putting the issue on its “true footing.” However, since he did not consider the public safety to be in danger he could not “dismiss his scruple that the Convention lacked the authority to restructure the government, as Randolph had done. Martin also invoked the Declaration to show that an equal vote for each state was founded in “justice and freedom and not merely in policy.” The Virginia Plan, Martin contended, was a “system of slavery for 10 States.” And on June 28, Sherman talked about how natural rights may be most equally and effectually guarded in Society.” When the rich man and the poor man enter into society, argued Sherman, the rights and safety of the poor man are secured by an equal vote. This consideration prevailed when the articles of confederation were formed.” Having moved the argument of justice from the rule of law to the level of laws of nature, there was only one higher authority to which the delegates could appeal. Franklin suggested that they pray.
What is curious about Storing’s coverage is how he scrupulously avoids using terms like extended republic, small republic, and true federalists. He also tends to shy away from using the word national and especially the word federal, substituting the words union and states in their place. Most important for our purposes, however, is that Storing avoids analyzing the concept of justice undergirding the position of Patterson, Sherman, Lansing and Martin. Yet he thinks that the only solid argument which came close to refuting Patterson’s arguments of “supposition” and “fact” concerning the equal sovereignty of the states was provided by Randolph on June 16. Let us take a look at what Storing does not emphasize.
On June 16, Patterson read the 5th art. of Confederation giving each State a vote—and the 13th declaring that “no alteration shall be made without unanimous consent … We have no power to vary the idea of equal sovereignty.” Randolph was not overly concerned about the authority of the Convention: “when the salvation of the Republic was at stake, it would be treason to our trust, not to propose what we found necessary.” Randolph appealed to the delegates, in effect, to consider yet a higher order of justice than had hitherto fore been articulated. He appealed to the justice of founding a new republic, although he articulated this vision in terms of saving a republic which was in existence. What was at stake at the Convention was whether the purpose of the union was to save one Republic, which did not actually exist, or secure several republics which were factually in existence. Did the delegates have the authority either in their commissions or under the existing law to scrap the Articles? The “true” federalists did not think they did. And even if they did, why was it necessary to restructure the government? Neither Wilson nor Madison provided an adequate response to Jonathan Dayton who, on June 30, argued that prior to restructuring, “it should have been shown that the evils we have experienced have proceeded from the equality now objected to: and that the seeds of dissolution for the State governments are not sown in the general government.”
Storing’s account of the Convention concludes with an assessment of the kind of Constitution the Framers created: “The Constitution was in fact, if not in name, national, but the delegates from the small states succeeded in having incorporated into that government, something of the principle for which they contended” (67). Yet what was the principle for which they contended? Why refer to the “small states” if they are only a surrogate for the real thing, namely states? What does it mean to say that the Constitution is in fact national? Storing’s treatment of the debates would lead us to believe that the principle for which the small states contended was state sovereignty or, more accurately, the independence of the states from the union. Thus, Storing interprets the opposition at Philadelphia to be antiunion, an argument which was used with considerable effectiveness against the antifederalists in the ratification controversy and by Lincoln fifty years later against the southern states. But the New Jersey Plan is not an anti-union plan, nor did Patterson and Martin, not to mention the other delegates who created that plan, advance an antiunion argument. Nor were they the first or only people to suggest the possibility of disunion. On June 9, Wilson warned that “Pena, and he presumed some other States, would not confederate on any other” plan but proportional representation. Moreover, to the extent that denying national sovereignty constitutes the principle for which the small states contended, they certainly did not do a very good job of securing this principle in the Constitution. Finally, Storing does not help us understand why Mason, Gerry, and Randolph opposed the Constitution which was, according to Storing, national in fact, if not in name, or why Madison and Wilson considered the Connecticut Compromise to be a defeat rather than a victory.
I suggest that it is more appropriate to consider the principle articulated by the small-state delegates to be equality of representation, rather than the kind of independence suggested by Storing. This in turn broadens the major grouping of those who might be called true federalists to include the delegates from five of the states. Take Oliver Ellsworth, for example. On June 29, Ellsworth moved that “the rule of suffrage in the 2d. branch be the same with that established by the articles of confederation.” We were, after all, “partly national; partly federal.” As proportional representation was conformable to the national principle, “an equality of voices was conformable to the federal principle and was necessary to secure the Small States agst. the large.” He appealed to the principles of justice to support the federal principle. The right to self-defense could not be denied, for “nature had given it to the smallest insect of creation.” Moreover, “the existing confederation was founded on the equality of the States in the article of suffrage: was it meant to pay no regard to this antecedent plighted faith?” On the same day, Hamilton recognized that the principle of equality was the issue: “It has been sd. that if the smaller states renounce their equality, they renounce at the same time their liberty” (italics in original). And on June19, Madison recognized that “the great difficulty lies in the affair of Representation; and if this could be adjusted, all others would be surmountable.” On June 30, Ellsworth again appealed” to the obligation of the federal pact … under which each State small as well as great, had an equal right of suffrage in the general councils.” In short, equality of representation was the cornerstone of federalism. “Why are we razing the foundations of the building,” said Ellsworth, “when we need only repair the roof.” Ellsworth’s view of federalism, a view I contend was accepted widely by those who opposed the establishment of a national government, was open to the charge that it harbored anti-union sentiment. Storing and Diamond agree with Madison, Wilson, Hamilton, and Morris that the problem was structural: both the independence and equality of the states had to be overcome. These delegates were unwilling to accept equality of representation for the states because they considered it to be unjust.
In a response directed specifically to Ellsworth, Madison argued that Ellsworth was wrong when he said “no instance [of a Confederacy] has existed in which an equality of voices has not been exercised by the members of it” Anticipating the arguments of Federalist Nos. 9 and 10, Madison pointed to the Lycian confederacy, a confederacy “which Montesquieu recommends as the fittest model for that form of government” With respect to “faith plighted in the existing federal compact,” Connecticut had been perhaps the most guilty in failing to honor the requisitions of Congress. If Ellsworth were really interested in the union, he should quit talking about the division between the small and large states and start focusing on the real issue, which was slavery. The delegates should be working out a compromise, whereby northern interests would be protected in one House and the southern interests in the other. States, qua states, had no ground for representation. Ellsworth’s response is instructive for our consideration of the true federalist position. “Mr. Elseworth assured the House that whatever might be thought of the Representatives of Connecticut, the State was entirely federal in her disposition” (italics added). And by this remark, Ellsworth did not mean to suggest that Connecticut was anti-union. To be federal in disposition was to be in favor of the union. To be federal in principle was to be in favor of the equality of states.
A brief comment on nomenclature is needed before I proceed with my treatment of the true federalist position. Contrary to widely accepted opinion, the authors of The Federalist did not simply steal the name from the rightful owners. As W. B. Allen and I have argued elsewhere (as has Forrest McDonald in Novus Ordo Seclorum) from the adoption of the Articles of Confederation in 1781, and coming to a head in 1783-85, those who aimed to “cement,” “support,” or “protect” the Confederation were perceived to be, and widely accepted as, federal-minded as opposed to state-minded. By 1787, those who opposed the movement to strengthen the Confederation were being widely described as “antifederal men” with an “unfederal disposition.” During the ratification controversy, antifederalmen countered the national principles of the Constitution defended by federal men by emphasizing the extent to which the Constitution departed from federal principles. A common antifederalist argument was that they were the “true” federalists and genuine republicans, because they took their bearings from the principles of federalism and republicanism laid down in the Articles. The term “true federalist,” therefore, requires us to distinguish between federal men and federal principles, for they operate contrary to each other. A failure to make this distinction clearly lies at the heart of the interpretations of Storing and Diamond.
There is a sense in which all the delegates were true federal men, for they all wished to cement the union. The anti-cementers, like Patrick Henry and Willie Jones, refused their appointments or were not selected to attend the deliberations. Even Richard Henry Lee, whose name and work is almost synonymous with the antifederalist perspective, decided to distance himself from antifederal men in the summer of 1787. In a letter dated June 4, 1787 from Arthur Lee, his brother, to Thomas Lee Shippen, his nephew, we learn why Richard Henry Lee declined his appointment as a delegate from Virginia. He did not think it was right for a member of Congress whose powers were to be increased to attend a convention designed for that purpose. He was particularly concerned about the political impact of what we today refer to as a conflict of interest: “it would be a very popular argument with anti federal men in the several Assemblies against ratifying the acts of the Convention” (VHS, 189; italics added).
The Diamond Thesis
Diamond’s interpretation of the true federalist position rests on Madison’s distinction between federalism and nationalism, which he explains in Federalist No. 39 (243-46). Using the terms as “understood by the objectors,” and testing the Constitution “by the rules laid down by the antagonists,” Madison declared the Constitution to be neither wholly federal nor wholly national but a composition of both. Of the five tests, namely, foundation, “the sources from which its ordinary powers are to be drawn,” the “operation of these powers,” the extent of powers, and the amendment process, Madison found the Constitution to be wholly national only with respect to the operation of powers.
Following Hamilton’ s argument in Federalist No. 9 (75), Diamond considers the operation of powers test to be the essential difference between a federal and a national arrangement: in the former, the government operates on members in their collective capacities, “without reaching to the individuals of whom they are composed.” Diamond’s “true” federalists adhere to this essential characteristic of federalism. His” half-hearted” federalists are those who put their emphasis on one of the other four features. Diamond takes the essential characteristic laid down by Publius during the ratification controversy and applies it to the delegates and arguments at the Constitutional Convention. Thus the Virginia Plan, the Connecticut Compromise, and the Constitution are essentially national because under all three plans, the government operates directly on individuals. In particular, the Connecticut Compromise is a compromise between true nationalists like Wilson and Madison on the one hand, and halfhearted federalists like Sherman and Ellsworth on the other. But first Sherman and Ellsworth had to be persuaded to abandon the true federalist position. This Madison did on June 6 and June 19. Contra Diamond, I argue that true federalism at the Convention is more appropriately understood in terms of the sources from which the ordinary powers of government are to be drawn: in short, the representation issue. Thus, the Connecticut Compromise is a compromise between the true federalists who adhered to the principle of state equality and “half-hearted” nationalists like Gerry and Strong of Massachusetts and Davie and Williamson of North Carolina. Once this principle of equality was secured, the true federalists were successful in achieving a partially federal foundation, an enumeration of powers, and an amendment process in which the states played a crucial role. Put differently, of the five criteria described in Federalist No. 39, it was the second and not the third which was the critical divide at the Convention.
I suggest we view the Connecticut Compromise as the outcome of a debate over how thick and firm should be the cementing of the union. Even the New Jersey Plan recognized the need for a firmer union. The true federalist objective was to secure better bonding, but at the same time avoid perfect bondage. The course of human events over the period 1781-87 did not demonstrate to the men of federal principles that it was necessary for the Convention to dissolve the political bonds which had connected the states with each other. Rather, experience and prudence indicated that the delegates should alter but not abolish the Articles. This is the position undergirding the New Jersey Plan. But the true federalists were willing to go beyond that plan as long as the principle of state equality guaranteed by the Articles was preserved. This is precisely what the Connecticut Compromise acknowledged.
The way to understand the advocates of true federalism at the Convention is in terms of those who supported the following formula: less separate but still equal states. To them, those who supported the Virginia Plan proposed that we could only become less separate by making the states less equal, both with regard to each other and collectively. The paramount issue facing the Convention was how to secure the safety and happiness of the people. Therefore, the paramount question which guided the deliberations was: what is justice? This, in turn, requires us to understand that some men might equate justice with what is legal or contractual. For example, justice was the mandate under which one is authorized to act at the Convention, or the fundamental law of the Confederation concerning the alteration of government. Others identify justice with the way federal arrangements have operated in history or in the peculiar genius of the American people. Still others ground justice in nature or God. Unfortunately, according to the true federalists, there are others who believe that justice is simply the advantage of the stronger: for example, the large vs. the small, the rich vs. the poor, the few vs. the many. But such conceptions of justice are grounded merely in power and must be resisted. And that is precisely what the true federalists did at the Convention.
According to Diamond’s reading of the Convention, Morris expressed very clearly what everyone understood federalism and nationalism to mean. The former was a “mere compact resting on the good faith of the parties; the latter having a more complete and compulsive operation” (May 30). The Virginia Plan, in contrast to the Articles, was to be a national and supreme government and not a federal system. The “true federalists” (31) regarded nationalism as fatal to liberty. In the very beginning, however, their numbers were few. On May 30, the Convention adopted the national premise of the Virginia Plan by a vote of 6-1-1. (The no vote was Connecticut, and New York was divided. The attendance and voting records indicate that Sherman, Ellsworth and Yates voted no.) According to Diamond, the true or “convinced federalists, however, received reinforcements from the arrival of “several small delegations, which happened to be federally minded.” If we look at the records of the debates (and exclude Rhode Island, which never arrived, and New Hampshire, which arrived after the Connecticut Compromise), we are talking about three states which have not yet arrived. Only one of these could be considered a small state—New Jersey. The other two—North Carolina and Georgia—very rarely adhered to the principles of federalism, except when it came to slavery. To be sure, in the early going the delegates from North Carolina and Georgia expressed some reservations about the implications of the Virginia Plan. These reservations were substantially removed, however, on June 11. More importantly, Diamond is guilty of making the same mistake as Storing: he has identified the true federalists” as “federally minded.” “Federally minded” in 1787 was widely understood to mean those in favor of strengthening the union, something Diamond does not want his true federalists to advocate.
Central to the Diamond thesis, a summary of which follows, is the gulf between the simple nationalists and the true federalists. No compromise was possible until the true federalists recognized the inadequacy of their position. With the conversion of Sherman and Ellsworth by Madison on June 6, the debate shifted to one between pure nationalists and “half-hearted federalists.” Madison had to convince the pure federalists that liberty and justice would be secure under a firm union. Once he did that, compromise was possible. By the time the New Jersey Plan—”a purely federal plan”—was introduced, Madison’s argument had taken its effect. The New Jersey Plan had moved beyond the ends and power of the Articles: a federal executive and judiciary were included, Congress was given power over interstate commerce and taxation, and the supreme law of the land was to be secured by coercion. Coercion was the Achilles’ heel of the plan. On June 19, Madison managed to persuade Sherman and Ellsworth to abandon the New Jersey Plan. The vote was 7-3-1 against the purely federal New Jersey Plan. Only New Jersey, New York and Delaware voted no, and Maryland divided. Compromise became possible once the pure federalists became reassured that a national government would not destroy liberty. In other words, they were persuaded that they could abandon the small republican argument (for which the small states argument was a surrogate), and embrace the extended (or large republican) argument without losing the end of liberty and justice which they all wanted to secure. The proof of persuasion is the Connecticut vote of June 19 against the New Jersey Plan and the request of Ellsworth on June 20 that the word “national” be dropped from the plan.
Uncharacteristically, Diamond ignores Madison’s explanation for the introduction of the New Jersey Plan on June 15. Far from showing how persuasive Madison had been, the introduction of the plan “began now to produce serious anxiety for the result of the Convention.” In fact, Madison reported Dickinson’s belief that the New Jersey Plan was introduced because Madison was “pushing things too far.” According to Madison,
this plan had been concerted among the deputations or members thereof, from Cont. N.Y. N.J. Del. and perhaps Mr. Martin from Maryl. who made with them a common cause on different principles. Cont. and N.Y. were agst. a departure from the principles of the Confederation wishing rather to add a few new powers to Longs. than to substitute, a National Govt. the States of N.J. and Del. were opposed to a National Govt. because its patrons considered a proportional representation of the States as the basis of it.
I think that Madison has accurately described the major grouping of what we can call the true federalists. The principle which unites them is equality of representation in at least one branch. In addition to the vast number of references from delegates on both sides which I have already cited, I add the following from Wilson on June 28. “The leading argument,” says Wilson, “of those who contend for equality of votes among the States is that the States as such being equal and being represented not as districts of individuals, but in their political and corporate capacities, are entitled to an equality of suffrage.” Christopher Wolfe correctly argues that according to Madison’s own reasoning, Diamond’s true federalists are to be found only in Connecticut and New York. The May 30 vote supports this position. Wolfe thus concludes that since New York left before the Compromise, and the Connecticut delegates changed their minds, not much can be said for the Diamond thesis. Yet, why did the Connecticut delegates vote against the New Jersey Plan which they had helped create? This is central to an appreciation of Diamond’s argument. Certainly not because of Madison’s June 6 or June 19 speeches, says Wolfe. They probably voted against the New Jersey Plan for “political coin.” In other words, according to Wolfe, they were bargaining for equality in one branch.
Wolfe is correct that the presence of the extended republic-small argument has been exaggerated by Diamond, a point which Zuckert also makes. Nevertheless, it is inaccurate to suggest as Wolfe does that the battle was simply large state-small state and that “in fact, no one in the debates ever referred directly to Madison’s extended republic argument, including Madison himself.” For example, on June 21, Madison responded to “the great objection made agst. an abolition of the State Govts.” The great objection “was that the Genl. Govt. could not extend its care to all minute objects which fall under the cognizance of the local jurisdictions. The objection as stated lay…agst. the imperfect use that could be made of [the general power] throughout so great an extent of country and over so great a variety of objects.” He was, in effect, repeating his June 6 argument that liberty was safe in” one great Republic” (June 21). Nor is it true, as Wolfe contends, that no one advanced the argument for the small states on small republican grounds. We have already seen how Madison incorporated the substance of his June 6 speech in his rebuke of Ellsworth on June 30 in which he refers to Montesquieu. And on June 25, Ellsworth “urged the necessity of maintaining the existence and agency of the states. Without their cooperation it would be impossible to support a Republican Govt. over so great an extent of Country. An army could scarcely render it practicable. The largest States are the Worst Governed.” Ellsworth has joined the principles of federalism and republicanism under the rubric of liberty and justice. What these references show is that at least Ellsworth was not persuaded by the extended republic argument as late as June 25. Nor were other delegates, like Franklin, who believed “small states are more easily well and happily governed than large ones” (June 11). But then neither was Hamilton persuaded, who, contrary to the implication of contemporary scholarship, did not reject the Virginia Plan primarily because he thought that it was insufficiently national. Rather, he rejected it because he thought that it was virtually impossible to govern an extensive territory effectively and still remain republican. That is why on June 18 he advised going as far as republican principles would permit. In other words, he would ground the government on the election of the people but go for permanency in office
In this regard, it is fascinating to observe Madison’s reaction on June 26 to Pinckney s June 25 speech against permanency in the Senate. Pinckney, in effect, gave as his reason for opposing a Senate modeled on the British system the extensive republic argument of Federalist No. 10. In rebuttal, Madison argued that in framing a system which we wish to last for ages, “we shd. not lose sight of the changes which ages will produce.” In the future, those without property, would outnumber those with property. A permanent Senate was the republican remedy for the diseases of republican government, an argument Madison repeats on August 7 and in Federalist No. 63. It was precisely this attempt to build the general government on the Senate which led Gerry, Mason, and Randolph to oppose the national government they helped create.
All this is missing from Diamond’s argument. Also missing is the importance of the council of revision and the national veto to Madison’s attempt to restructure the union. Both of these measures were defeated. Diamond gives the impression that the Connecticut Compromise created an incomplete national government. This ignores the fact that Madison thought a miscarriage of justice had taken place. If the coercion feature of the New Jersey plan supporting the supremacy clause was its Achilles’ heel, why did the delegates accept without debate its reintroduction on July 17? The day after the Connecticut Compromise, the national veto-Madison’s alternative to force or disunion-was soundly defeated on a 3-7 vote. Immediately after this, Luther Martin moved to reintroduce “the supreme law” clause of the New Jersey Plan. This was agreed to nem con.
Why would Luther Martin, of all people, introduce a proposal which confirmed national supremacy? I believe the answer is that this clause, just as its equivalent in the New Jersey Plan, was intended to affirm that the basic relationship between the nation and the states was presumed to be compatible, rather than antagonistic. Those who wanted a strong national government, like Madison, argued for the national veto in order to keep the states in their proper orbit. Sherman (and others) denied the relationship should be presumed to be unfriendly. For example, on June 20 he stated that “he saw no reason why the State Legislatures should be unfriendly as had been suggested to Gongs.” If and when hostility occurs, then and only then should the general government be able to require the states to comply with the supreme law of the land.
Resolutions 4a and 5a
Let me return to the question of why the New Jersey Plan was originally introduced. To this end an analysis of the fate of resolutions 4a and 5a of the Virginia Plan is critical. According to Resolution 4a, “the members of the first branch of the National Legislature ought to be elected by the people of the several States.” Resolution 5a proposed that “the members of the second branch of the National Legislature ought to be elected by those of the first, out of a proper number of persons nominated by the individual legislatures.” On May 31, the delegates accepted proposition 4a on a 6-2-2 vote. New Jersey and South Carolina voted no; Connecticut and Delaware were divided. Since Johnson had not yet arrived, this means that Sherman and Ellsworth divided their vote. One of these two delegates (probably Ellsworth), therefore, voted in favor of proportional representation in the first branch. Since Lansing had not arrived, Yates must have voted with Hamilton in favor of proportional representation in the House! Delaware’s vote was divided because Dickinson was absent. In short, it is very difficult to build a theory of true federalism along the lines suggested by Diamond from this initial vote on 4a.
The delegates then turned to 5a. A substitute was moved by Spaight of North Carolina: “the 2d branch ought to be chosen by the State Legislatures.” Butler of Georgia considered this an important protection for the state governments. In the course of the brief discussion, Sherman turned the issue from mode of election to one involving equal representation. He “favored an election of one member by each of the State Legislatures.” Immediately after, a vote was taken on the original 5a, which received only three votes. Only Massachusetts, Virginia, and South Carolina were in favor of the original 5a. Madison’s disappointment was revealed in his terse comment: “so the clause was disagreed to and a chasm left in this part of the plan.” In Sherman’s remarks, in the vote, and in Madison’s reaction we find the cornerstone of true federalism. This was the chasm or gulf that had to be crossed; as far as the true federalists were concerned, it could only be crossed when the nationalists granted equal representation in the Senate. Contrary to Diamond, some of the pure nationalists had to become half-hearted before the chasm could be closed.
On June 6, the delegates returned to a discussion of Resolution 4a. Pinckney of South Carolina moved, seconded by fellow delegate Rutledge, that “the first branch of the national Legislature be elected by the State Legislatures, and not by the people.” Only Connecticut, New Jersey, and South Carolina voted in favor; the basis for their vote is that the way to protect the equality of the states is to permit them to elect the representatives. On June 7, the delegates turned to filling the chasm left by the rejection of Resolution 5a. Dickinson moved, seconded by Sherman, that “the members [of the 2d branch ought to be chosen] by the individual Legislatures.” Despite the objections of Madison, Wilson, and Morris, this proposal was accepted on a 10-0 vote. The discussion prior to the vote indicates, however, that the issue of proportional versus equal representation in the upper house was still to be settled.
On June 11, Sherman offered what was to become the foundation of the Connecticut Compromise agreed to on July 16. He proposed:
that the proportion of suffrage in the 1st branch should be according to the respective number of free inhabitants; and that in the second branch or Senate, each State should have one vote and no more. He said as the States would remain possessed of certain individual rights, each State ought to be able to protect itself: otherwise a few large States will rule the rest.
Sherman’ s proposal was based in a concept of justice. It appealed to the Declaration of Independence and the idea of the consent of the governed, as well as the principles of minority rights. It refused to include slavery in representation. Sherman was willing to acknowledge the justice of proportional representation in the House as well as the justice of equal representation in the Senate. After some discussion, Wilson proposed, seconded by Pinckney, to add “three fifths of all other persons” to Sherman’s free inhabitants for representation. This was accepted on a9-2vote. Sherman then moved that a vote be taken on the second part of his proposal. “Everything he said depended on this. The smaller States would never agree to the plan on any other principle than an equality of suffrage in this branch.” Mr. Ellsworth seconded the motion. The vote was very close: Connecticut, New York, New Jersey, Delaware, and Maryland in favor with the other six states voting instead to establish proportional representation including the three-fifths feature in the Senate. I suggest, again, that these five states constitute the major grouping known as the true federalists. Their principle is equality in the Senate.
Let us take a closer look at the first vote granting proportional representation including the three-fifths feature in the House. Only two states – New Jersey and Delaware – voted against this proposal: New Jersey for its slavery feature as much as its proportional representation feature; and Delaware, perhaps because of the injunction on its delegates not to assent to any change of the rule of suffrage. Of equal importance, Sherman, Ellsworth, Yates, Lansing, and Martin voted in favor of proportional representation in the House modified, by Wilson and Pickney, to give greater representation to the slave states. This is not the last time that the issue of slavery complicates the representation question. The decision to have the same mode of representation in the Senate as the House paved the way for the introduction of the New Jersey Plan. I suggest that had Sherman’s distributive justice proposal of proportional representation in the House and equal representation in the Senate been accepted, then there would have been no need for the New Jersey Plan.
The delegates, having made their way through the fifteen proposals of the Virginia Plan, were ready to vote on the whole plan as amended when Patterson asked leave to introduce a plan which would provide for a strong government consistent with republican principles. The eleven-point proposal, introduced on June 16, and its defense have been discussed earlier. Suffice it to note here that the plan was grounded in the equality of the states. To secure this, only one branch was proposed. Instead of the negative over state laws, specific powers were given to Congress, powers whose enforcement were supported first by the oath of fidelity, and ultimately by coercion. The unwillingness of the pure nationalists to accept equal representation in the Senate pushed the true federalists to abandon their support for proportional representation in the House.
With the defeat of the New Jersey plan, the Convention hung in the balance from June 19 until July 16. The true federalists continued to argue the justice of their position that the states must be represented equally in at least one branch. Why Connecticut voted against the New Jersey Plan remains unclear (neither Sherman nor Ellsworth spoke on that day): What is clear is that from June 20 onwards, they held fast to equality of representation at least in the Senate. On June 20, Ellsworth simultaneously asked for the removal of the word national and reminded the delegates that the plan ought to be ratified by the state legislatures. What is also clear is that on June 20, Sherman seconded Lansing’s motion that “the powers of Legislation be vested [in the U. States] in Congress.” In other words, far from being convinced by Madison’s arguments of June 6 and June 19, Sherman dug in his heels and returned to his position of May 30. Yet, at the same time, Sherman pointed the way to a solution. He would be willing “to have two branches, and a proportional representation in one of them, provided each state had an equal voice in the other. This was necessary to secure the rights of the lesser States.” Otherwise, continued Sherman,
Three or four of the large States would rule the others as they please. Each State like each individual had its peculiar habits usages and manners, which constituted its happiness. It would not therefore give to others a power over this happiness, any more than an individual would do, when he could avoid it.
Unlike Diamond, I have emphasized the importance of May 31 and June 11. In the process, I hope to have assisted in breaking the reader of the bad habit of reading the Convention as simply a battle between the Virginia Plan and the New Jersey Plan. In the most provocative article to appear on the Convention within the last ten years, Zuckert also criticizes the usual approach. According to Zuckert, it adheres to the “Hegelian” cast or scenario. By this I understand him to mean that he rejects an approach which views the national Virginia Plan as the thesis, the “purely” federal New Jersey Plan as the antithesis, and the Connecticut Compromise as the synthesis. Instead, he would have us see six “distinct models” of federalism competing for the allegiance of the delegates with Madison’s “National Compound” and Dickinson’s “Federal Compound,” rather than the Virginia Plan and the New Jersey Plan, holding center stage. (The Articles and Hamilton’s Plan form the backdrop.) According to Zuckert, the Connecticut Compromise was no compromise at all, but rather the acceptance by the delegates of the Dickinson compound model over the Madison compound model. Zuckert not only denies that the Connecticut Compromise was a compromise, but also that it had any original connection to the Connecticut delegation. What might appear as a compromise between two arguments was really the fulfillment of a model containing two ingredients.
To be sure, Zuckert is correct when he argues that Diamond’s extended republic vs. small republic thesis is, in effect, long on drama and short on choice, especially when placed next to Madison’s five elements of federalism articulated in Federalist No. 39. But that is precisely why we need to see the work of the Convention to the end, rather than stop at the Connecticut Compromise. Moreover, Diamond’s error is to overemphasize the importance of the “operation” test rather than the “sources” test. Curiously, despite his criticism of Diamond, Zuckert also emphasizes the “operations” test. Furthermore, Zuckert’s complicated six Weberian ideal-types of federalism make us wonder what was at stake. If everyone were true to the principles of federalism, with the exception of Luther Martin, Alexander Hamilton, and perhaps Gouverneur Morris, then why did they argue so long and hard at the Convention?
There is another problem with Zuckert’s version. Dickinson was one of the few delegates who supported Madison’s universal veto the essential feature which distinguishes Madison Federalism from Randolph Federalism for Zuckert – and it was overwhelmingly defeated on June 8. Only Massachusetts, Pennsylvania and Virginia voted in favor and, because of Read and Dickinson, Delaware’s vote was divided. Bedford objected because he considered that it was meant to strip the small States of their equal right of suffrage.” Apparently Bassett concurred with Bedford. Within the Virginia delegation, Randolph and Mason voted no. How realistic, therefore, is it to say that Madison’s model was really on the table? On June 7, Dickinson argued in favor of the state legislature electing the Senate. When Madison responded that the impact of this proposal meant either abandoning proportional representation or having a Senate which would be too large to perform the task of checking the House, Dickinson responded that he did not mind if the Upper House contained a vast number of people. “The greatness of the number was no objection with him. He hoped there would be 80 and twice 80 of them.” In other words, equal representation in the Senate was not of paramount importance to Dickinson in his defense of state election of the Senate on June 7. As we have seen, Dickinson’s proposal was unanimously accepted.
If Dickinson’s proposal was so popular on June 7, why did the delegates continue arguing until July 16? I suggest that what divided the delegates was the representation issue rather than the election issue. This issue was first raised by Sherman on May 31 and reinforced by Dickinson on June 2: “He hoped that each State would retain an equal voice at least in one branch of the National Legislature.” (This “hope” came in connection with a discussion of the separation of powers and no vote was taken.) In short, Dickinson repeated what Sherman originally favored on May 31: “an election of one member by each of the State Legislatures.” Since true federalism is grounded in equality of state representation, then it is to Dickinson on June 2 rather than Dickinson on June 7 that we should turn. But if this “hope” constitutes the core of the Dickinson model which is finally accepted on July 16, then the remaining part of his June 2 observations become disturbing. He continued his remarks on representation with the supposition that “the sums paid within each state would form a better ratio for the other branch than either the number of inhabitants or the quantum of money.” This supposition was not adopted by the delegates on July 16. To the extent, therefore, that July 16 constituted a fulfillment rather than a Hegelian synthesis, it involved the fulfillment of Sherman’s May 31 and June 11 “model,” which recognized that the new government should be partly national and partly federal.
The Connecticut Compromise
Let me turn to a more detailed examination of the immediate road to the Connecticut Compromise, and then look at selected issues between July 16 and September 17. The session opened on July 16 with a vote on “the whole report” of the eleven-member committee chaired by Elbridge Gerry delivered originally on July 5. The report recommended that the lower house be based on proportional representation and the upper house should represent each state equally. As a concession to the larger states, a third provision was included, namely, that money and revenue bills should originate in the lower house and be incapable of amendment by the upper house. Connecticut, New Jersey, Delaware, Maryland, and North Carolina voted in favor. Pennsylvania, Virginia, South Carolina and Georgia voted against the compromise proposal. Massachusetts was divided. The delegates from New Hampshire did not arrive until July 23, Rhode Island declined to attend, and New York was left without representation when Yates and Lansing departed on July 11. Hamilton left on June 30 and returned on September 6.
Madison very rarely tells us how specific delegates voted and when he does specify individual votes, it is usually with respect to divisions within the Virginia delegation (especially when George Washington’s vote was critical). On this July 16 vote, however, Madison names names. With respect to Massachusetts, he tells us King and Gorham voted no and Gerry and Strong voted yes. Somewhere along the line, Gerry and Strong were persuaded to change their minds and accommodate those who argued on behalf of equal representation for the states. During the early part of the debates, Massachusetts had been an unequivocal supporter of proportional representation in both branches. Madison also singles out North Carolina. “Mr. Spaight,” says Madison, voted “no.” North Carolina required three of its five delegates to be present before a vote could be cast. The four delegates, other than Spaight, were Blount, Davie, Alexander Martin, and Hugh Williamson. Blount left the Convention on July 2 in order to represent North Carolina in the Confederation Congress held in New York. That means that at least two of the three other delegates had to be present and voting in favor. Of Alexander Martin, we know little. Of Davie and Williamson, however, we know enough to believe that they voted in favor of the Compromise. I am tempted to suggest further that had anyone from the smaller states voted against the Compromise, Madison would also have named them.
What this vote tells me is this: Gerry, Strong, Davie, and Williamson, and perhaps Alexander Martin, were willing to abandon the principle of proportional representation in both branches. In other words, they became half-hearted nationalists. The delegates from Connecticut, New Jersey, Delaware and Maryland—including Luther Martin—were willing to accept proportional representation in the lower house if equal representation for the states were recognized in the Senate. If we are to believe Randolph’s remarks on July 16, the vote would have been 6-4-1 had New York been represented. In other words, Yates and Lansing would also have voted for the Compromise. Put differently, only the delegations from Pennsylvania, South Carolina, Virginia, and Georgia would not compromise.
This means that all the states—with the exception of New York, which was absent—that voted in favor of the New Jersey Plan, which called for one branch only and equal representation of the states in that branch, voted in favor of the Connecticut Compromise. Connecticut and North Carolina voted against the New Jersey Plan, but in favor of the Connecticut Compromise. And Massachusetts was neutral. With respect to Pennsylvania, it can be easily demonstrated that Franklin was in favor, and Georgia must have been a very close call. Georgia had four delegates in attendance, but Few and Pierce had been absent since July 2 having departed, with Blount, for New York to attend the Confederation Congress. That left Georgia’s vote in the hands of Houston and Baldwin. I contend that if Baldwin felt that the Compromise was in danger of not passing, he would have voted in favor, thus dividing Georgia’s vote once again.
On July 2, “a date which plays a prominent part in Storing’s dramatic rendition, Oliver Ellsworth’s proposal that each state be allowed one vote in the second branch of government was considered. Massachusetts, Pennsylvania, Virginia, North Carolina, and South Carolina voted in the negative. Connecticut, New York, New Jersey, Delaware and Maryland voted in the affirmative. How would Georgia vote? Here is another rare example of Madison’s stating the vote of specific delegates. According to Madison, “Geo. divd. Mr. Houston no Mr. Baldwin ay.” Therefore, on July 2 Baldwin voted against his convictions concerning proportional representation in order to save the Convention from collapse. On July 16, Baldwin voted his convictions because as a member of the Gerry Committee he knew that the Convention had reached an accommodation.
Baldwin’s July 2 vote sent a shock through the Convention. Sherman declared the Convention to be at a full stop.” General Pinckney said “some compromise seemed to be necessary,” and moved that a committee be appointed “to devise and report some compromise.” Luther Martin did not object to the creation of a committee, but reminded the delegates that the smaller states “would oppose the least diminution of their equal sovereignty.” Williamson believed that if we do not concede on both sides, our business must be at an end.” Gerry concurred: we must make concessions on both sides.” Thus the Gerry Committee of eleven was created to resolve the representation issue.
Martin’s conditional approval of the creation of the Gerry Committee was made in response to a proposal made by Pinckney right after the vote was taken on allowing each state one vote in the second branch. Pinckney’s proposal was a compromise, that the Senate be neither wholly proportional nor wholly equal but a mixture of both. In other words, the states should be divided into classes. Martin reminded Pinckney that no accommodation could take place which compromised the complete equality of the states. A similar sort of compromise proposal was made by Randolph on July 16 after the vote securing equality of votes in the second branch. Randolph toyed with the idea of permitting an equality of votes under certain conditions rather than abandoning the idea of proportional representation completely. He thought the Convention should adjourn so that the large states might consider the steps proper to be taken in the present solemn crisis of the business, and that the small states might also deliberate on the means of conciliation. Patterson reminded Randolph, as Martin had reminded Pinckney, that no conciliation could be “admissable on the part of the smaller states on any other ground than that of an equality of votes in the 2d. branch.” In order to foreclose any further “conciliatory experiment(s),” Patterson thought that it was “high time for the Convention to adjourn sine die.”
The composition of the Gerry Committee indicates the extent to which the “true’ federalists, rather than Diamond’s or Storing’s nationalists, had persuaded the delegates that the way to overcome the chasm was to grant equal representation to the states in the Senate. In addition to Ellsworth (replaced by Sherman, due to illness), Yates, Patterson, Bedford and Martin were members of the committee. Franklin, rather than Wilson, was chosen from Pennsylvania; Baldwin rather than Houston was chosen from Georgia; and Davie, who on June 30 agreed with Ellsworth’s June 29 observation that” we were partly federal, partly national,” was chosen from North Carolina. Mason and Rutledge were the remaining members of the Gerry Committee.
When the Gerry Report appeared on July 5, Wilson sarcastically remarked that the Committee had exceeded their authorized powers! But Madison was livid. According to Madison, “the Convention was reduced to the alternative of either departing from justice in order to conciliate the smaller states, and the minority of the people of the U.S. or of displeasing these by justly gratifying the larger states and the majority of the people.” Madison was not persuaded that the provision concerning money bills was “any concession on the side of the small States.” This can be proved by the “experience” of Great Britain and our own state governments. On August 13, he referred to this feature of the compromise as “compensation for the sacrifice (equal representation in the Senate) extorted,” from the larger states. He urged Gerry, Randolph, and Mason (along with Williamson) not to insist on this compensation feature for it made the “Govt. still more objectionable.” By this time, however, this three-man nucleus of antifederalism in the struggle over ratification had now become even more suspicious that the union which they had been prepared to cement on the republican principle of proportional representation was losing its republican character. The Senate, which in June and July was the institution through which the true federalists secured equal representation, had now become the institution through which “high-mounted government” was to be secured. These subsequent antifederalists, and Williamson, insisted that the small states honor the money bills part of the agreement which secured them their very equality in the Senate. Taxation and representation were strongly associated in the minds of the people, said Mason. It was improper that the Senate, which represented the states and not the people, should tax the people. Gerry and Randolph concurred with Mason’s effort to counteract the “countenance of aristocracy” in the Senate. Both here, and in his September reasons of dissent, Randolph reminded the delegates that the original Virginia Plan was grounded on republican principles.
The issue whether money bills should originate in the House was raised on August 8 as the delegates were making their way through the Committee of Detail Report. Wilson and Pinckney moved that the concessionary feature of the Compromise be struck from the plan. Mason was unwilling to travel over this ground again, but he did travel. Back on July 6, Mason said the only way he would agree to equal representation in the Senate was to have money bills originate in the House. Otherwise “we might soon have an aristocracy.” On August 9, Randolph and Williamson threatened to challenge the agreement that the states receive equal representation in the Senate unless the money bills provision was reinstated. Franklin reminded the delegates that despite the claims that Wilson, Madison and Morris were making, namely, that there was no advantage and many disadvantages to the money bills provision, it “was essentially connected by the compromise which had been agreed to.”
Morris reassured the delegates of the small states to go with their better judgment and exclude the feature. They no longer had to make a concession because it was not necessary; and he “would adhere to the section establishing the equality of the states at all events.” Randolph was not satisfied and returned to the money bills section again on August 11. This feature would not be necessary, he said, if there were proportional representation in the Senate. He urged the smaller states to honor their agreements. What did the five true federalists – Ellsworth/Sherman, Yates, Patterson, Bedford, and Martin – who were members of the Gerry Committee, have to say about this challenge? Ellsworth/Sherman figured that the provision could be dispensed with if the larger states no longer wanted it. All the others were absent. Yates left on June 11, Bedford and Patterson departed on July 26 at the break, and Luther Martin was not present during this week in August.
True Federalism and Slavery
Dickinson’s solution was that “experience must be our only guide.” Experience “verified the utility of limiting money bills to the immediate representations of the people.” When this plan goes forth, said Dickinson, “aristocracy will be the watchword.” Prudence dictates that the original agreement be followed in order to secure the Constitution from the objections of anti-aristocratic men. Washington concurred and voted with Mason and Randolph to retain this feature of the Gerry Report. On the last day of the Convention, he urged the delegates to alter that part of the Gerry Report which dealt with proportional representation in the House. He expressed his wish that 1 for 30,000 be substituted for 1 for 40,000. The smallness of the proportion of Representatives had been considered by many members of the Convention; an insufficient security for the rights and interests of the people.” The proposition was agreed to unanimously. On August 13, however, Washington’s act of prudence was not followed. Those truly federal delegates from the small states who were present voted with those who wished to erect a high-mounted government on the foundations of the Senate. The truly republican delegates from the large states – Gerry, Randolph and Mason – voted in favor of the money bill provision in order to secure the republican basis of the union which they helped cement.
Returning to the period between July 5 and July 14, what was the response to Madison’s charge that the Gerry Report involved a miscarriage of justice by deviating from the principle of proportional representation? Sherman took the opportunity to repeat his June 6 speech, namely, that people are happier in smaller states. In other words, large states operate against the principles of justice: “in the larger states it will be most difficult to collect the real and fair sense of the people. Fallacy and undue influence will be practiced with most success: and improper men will most easily get into office” (July 7). Since the smaller states “have more vigor in the Govts. than the large ones,” the general government will be more vigorous by the inclusion of the small states in the Senate. Patterson echoed the July 5 comments of Bedford which were a more temperate version of his June 30 speech. The true federalists recognized that perhaps justice required proportional representation in the House, but the small states “would never be able to defend themselves without an equality of votes in the 2d. branch.” Security against oppression demanded equal representation in the Senate.
During the debate on the Gerry Report, Gouverneur Morris, King and the delegates from South Carolina urged that property—the latter wanted slave property—be represented in the Senate (since property was the primary object of society, and justice required that it be protected by means of representation) and that the people be represented in the House. Madison had proposed this on June 30 when he declared that the real division in America “did not lie between the large and small States; it lay between the Northern and Southern, and if any defensive power were necessary, it ought to be mutually given to these two interests.” If Pinckney’s often-cited cynical remark of June 16—”Give N. Jersey an equal vote, and she will dismiss her scruples, and concur in the Natl. System”—were in fact as true as scholars claim it to be, why did Patterson not cut a deal on July 9 to protect equality in the Senate? For example, he could have suggested full representation in the House for people and property in exchange for full representation in the Senate for the states. But he did not. Instead, he presented a coherent defense of wholly popular representation in the House:
What is the true principle of Representation? It is an expedient by which an assembly of certain individls. chosen by the people is substituted in place of the inconvenient meeting of the people themselves. If such a meeting of the people was actually to take place, would the slaves vote? they would not. Why then shd they be represented. He was also agst. such an indirect encouragement of the slave trade.
Madison immediately reminded Patterson that his understanding of representation “must for ever silence the pretentions of the small States to an equality of votes with the larger ones. They ought to vote in the same proportions in which their citizens would do, if the people of all the States were collectively met.” This lecture did not prevent Madison from going right ahead and repeating his compromise proposal of free inhabitants in the House and all inhabitants, including slaves, in the second branch. He justified this on the ground that the guardianship of property was one of the primary objects of the second branch. (This is the same Madison, who in his famous speech of June 6, had described slavery as the most oppressive dominion ever exercised by man over man.”)
Far from catching Patterson in a fundamental contradiction, Madison has helped us to understand the dilemma that a true federalist like Patterson faced. He would accept the principle of proportional representation in the House if it were strictly adhered to and did not deviate from the principles of human justice. He had no intention of abandoning that other principle which required the second branch to guard the states. On July 11, Sherman objected to the efforts of Rutledge and Pinckney to go beyond even Madison’s compromise, and concurred with Patterson’s remarks. He thought “the number of people alone the best rule for measuring wealth as well as representation.” Patterson’s position is identical to that articulated by Sherman on June 11 when the Connecticut Compromise was first introduced.
Madison is clear about his dilemma: displease the small states or violate the principles of political justice. We also know about Morris’ dilemma: displease the southern states or violate the principles of human nature. The true federalist dilemma is to displease the larger states or violate the principles of federalism. Now the true federalist was being asked not only to compromise on federalism but also on human justice. We have recognized the extent to which those who wanted to preserve the equality of the states even used the threat of leaving as a leverage. Insufficiently recognized is the extent to which North Carolina and South Carolina, with the encouragement of Madison, threatened to bring the Convention to its knees during the debates over the Gerry Report. Randolph and Madison were willing to accommodate the demands of the slaveholders, but not the demands of the true federalists. Consider Randolph’s remarks on July 12:
He urged strenuously that express security ought to be provided for including slaves in the ratio of Representation. He lamented that such a species of property existed. But as it did exist the holders of it would require this security (Italics added).
In his moderate speech of June 29, Doctor Johnson of Connecticut had urged the delegates who wanted to create a national government to at least recognize the existence of the states as political societies. The fact is that the States do exist as political societies, and a Govt. is to be formed for them in their political capacity, as well as for the individuals composing them.” Randolph was willing to deviate from the principles of human justice and proportional representation on the grounds of necessity. He was unwilling to accept the same minimalist argument on behalf of the states, which, in fact, had been instituted by the consent of the governed. (What about the power of self-defense for the existing states?) As we have seen, Morris’s dilemma was different. If the great division was indeed north-south, then he would “be obliged to vote for ye vicious principle of equality in the 2d. branch in order to provide some defense for the N. States” (July 13). Not satisfied with Randolph’s painful compromise, Pinckney tops him and moves to make “blacks equal to the whites in the ratio of representation.” This, Pinckney urged, “was nothing more than justice.”
Let us move forward now to August 21 through 25 where the main discussion on slavery takes place. The five-member Committee of Detail—Rutledge, Randolph, Gorham, Ellsworth and Wilson—had responded to Pinckney’s threat that unless slavery was protected, he would withdraw his support, by including a clause preventing Congress from both taxing and prohibiting the slave trade. We are now in a position to reverse Pinckney’s cynical remark about New Jersey: “give Pinckney the right to secure slavery and he will support a strong central government; otherwise, he and his friends will invoke the argument of the true federalists to protect slavery.” The question which needs to be raised, both in the light of subsequent history and in terms of understanding the federal position at the Convention, is this: should we include the delegates from North Carolina, South Carolina, and Georgia in the grouping known as the true federalists?
Let us look at what they said in defense of Article VII, Section 4 of the Committee of Detail report. In response to Mason (August 22) who thought Congress should have the power “to prevent the increase of slavery,” General Pinckney responded: “it would be unequal to require S.C. and Georgia to confederate on such unequal terms.” Mr. Baldwin, who had voted against his convictions on July 2 in order to keep the Convention alive, declares that he “conceived national objects alone to be before the Convention, not such as like the present were of a local nature.” And Williamson now thought it wrong “to force anything down, not absolutely necessary, and which any state must disagree with.” We are all familiar with the compromise which removed the absolute prohibition on slavery and limited it instead to 1808, permitted the importation of slaves to be taxed, and in exchange removed the requirement that navigation acts must receive the assent of two-thirds of the Congress for passage. This compromise made us neither wholly free nor wholly slave, but a mixture of both.
My point, which I hope I have made clear, is that the three southern delegations were not advancing a true federalist argument despite the similarity in language. That argument was grounded in a concept of justice which, however inappropriately or defectively articulated, still takes its bearings from the Declaration. The Pinckneys and Rutledge appealed not to the Declaration, but to “the example of the world” and to interest: “religion and humanity had nothing to do with this question.” To be sure, Sherman and Ellsworth favored compromise but they did so on the grounds of necessity. And Dickinson, along with Randolph and Mason, opposed protecting the slave trade because it violated” every principle of honor and safety” (August 22). Or as Luther Martin put it, the slave trade is “inconsistent with the principles of the revolution.”
The principle of state equality for which the true federalists contended made its way into the final Constitution in various ways between July 16 and September 17. Moreover, the fact that the Connecticut Compromise secured the equality of the states had an impact on the way the institutional structure finally emerged. This include the mode of electing the President and how the Constitution was to be amended. It is not my purpose to provide a catalogue of accomplishments. Suffice it to note that each state received a minimum of one representative in the House and retained substantial control over the elections which took place within its boundaries, and new states were to be admitted on the principle of equality. With the presentation of the Committee of Detail report, we find an enumeration of powers rather than the national veto and the incompetency clause of the Virginia Plan. The common defense, general welfare, and the necessary and proper clauses made their appearance with this report. Dissatisfied with the enumeration, Madison requested an enlargement of the powers of Congress during the August debates.
I agree with Storing that the exchange between Martin and Wilson on June 19 over whether the states created the union or the union created the states has an important bearing on the role of the states in a federal arrangement. It is important, however, not to read the disputes which occurred after the Golden Jubilee back into the debates of the Convention. Martin’s “state of nature” argument was not one on behalf of secession. Rather, it was a reminder to those who now wished to dissolve the existing union that free and independent states “entered into the confederation on the footing of equality; that they met now to to (sic) amend it on the same footing, and that he could never accede to a plan that would introduce an inequality and lay 10 States at the mercy of Va. Massts. and Penna.”
To argue that the Articles were based on simple necessity, as Wilson argued, or could be dissolved by partial infractions of it, as Madison argued (an argument which Hamilton was not prepared to accept), or due to the obstinacy of the lesser states, as Gerry argued, failed to address the premise that the federal articles which allowed each state an equal vote were based on justice. The “cornerstone” of a federal government for Martin, and for those whom I have described as true federalists, is the equality of votes for those entities called states. While Martin argued (June 27 and June 28) that the general government ought to protect and secure the state governments, he could also accept that a general government may operate on individuals in cases of general concern, and still be federal. This was revealed most clearly in his argument that the slave trade was a matter of general concern and there should be an absolute prohibition against its existence.
Diamond is surely correct to note the connection between federalism and republicanism. He is incorrect, however, when he argues that Madison’s June 6 speech articulated the persuasive case for the proposed republic. I think Randolph’s response to Patterson put the issue of founding on the right footing. Randolph dared the delegates to be great; that is, he dared them to be founders. Our true federalists were willing to participate in the creation of the republic only if the equality of states were guaranteed. Madison’s June 6 speech did not persuade them to embrace the extended republic. If anything, our true federalists decided that if the nationalists would not accept the minimum condition for participation, then they would become reformers rather than founders; thus the New Jersey Plan. They believed that an extended republic could be successfully founded if the equality of the states were guaranteed. The irony is that Randolph, Mason and Gerry doubted that the republic which was being created on this foundation would indeed be republican. They were particularly troubled by what they saw as an aristocratic Senate, and a House which would not equally and fairly represent the interests of the people. The charge that the Constitution deviated from the principle of republicanism was far more important in the ratification controversy than the charge that it deviated from federalism.
It is a fitting end to our coverage of true federalism at the Convention to note that the injustice of human slavery and the justice of state equality were linked together in the amendment article. On September 10, Pinckney made sure that the clause prohibiting the importation of slaves prior to 1808 was secure from amendment. On September 15, as he did so often during the debates, Sherman followed Pinckney’s effort to secure slavery with his own effort to secure state equality.
Mr. Sherman expressed his fears that three fourths of the States might be brought to do things fatal to particular States, as abolishing them altogether or depriving them of their equality in the Senate. He thought it reasonable that the proviso in favor of the state importing slaves should be extended so as to provide that no State should be affected in its internal police, or deprived of its equality in the Senate.
Sherman settled for equality of representation in the Senate.
Books mentioned in this essay may be found in The Imaginative Conservative Bookstore.
The author would like to thank Graeme P. Auton, Eugene F. Miller, Margie Lloyd and Arthur G. Svenson for their helpful comments on an earlier draft. Reprinted with the gracious permission of the Political Science Reviewer (Fall 1987, Volume 17, No. 1).
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