The Genius of America (8 page)

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In politics, as in so much of life, timing is crucial. So it was with the presentation of Madison's Virginia Plan for a new government. Madison, the Virginia delegation and other allies were aware that the plan's radical features would cause upset, and that the other delegates would need time to see its wisdom. They would go first, set the agenda, to accomplish this end. Randolph, expressing “his regret” that he should be the one to “open the great subject of their mission” rather than others of “longer standing in life and political experience,” claimed the right to open on the basis of Virginia's origination of the convention.

It took fully two weeks for the more conservative opposition forces to organize themselves. During that time, the only agenda item was the Virginia Plan. It was not until June 15 that William Paterson of New Jersey offered a far less radical formula. Supported by the small states of Connecticut and Delaware and the strongly Anti-Federalist delegates from New York, it proposed only to remedy the narrow failures of the Articles of Confederation: giving Congress power to raise revenues through certain taxes, to regulate trade and commerce with other nations and between the states, and to enforce these laws.

But the comforting modesty of the New Jersey proposal was too late. According to Max Farrand, the great historian of the convention, “It is altogether possible, if the New Jersey plan had been presented to the convention at the same time as the Virginia plan, that is on May 29th, and if without discussion a choice had then been made between the two, that the former would have been selected.” History may seem inevitable when viewed backward. But it rarely looks that way at the time.

During the prior two weeks the delegates had discussed much of the Virginia Plan and had, broadly, become comfortable with its boldness, although they had already started tinkering with the details in telling ways, as we shall see (for example, shifting the selection of senators from the House of Representatives to state legislatures). On June 19, after several days of debating the New Jersey Plan, the delegates agreed with Madison's view that the New Jersey Plan “contained no remedy for [the] dreadful class of evils” which had brought America to the precipice of chaos, and rejected it 7–3 in favor of considering in detail the Virginia Plan. This vote cleared the way for the discussion of the new government.

The Virginia Plan, which, under Madison's guidance, Randolph had presented on May 29, with many small changes, but only a few very substantial ones, became the Constitution of the United States.

It is worth lingering for a time on those substantial changes, because their achievement illustrates the very philosophy and values that Americans would call on throughout their history to maintain the Republic and protect the Constitution. The power of Madison's proposed new government, although divided, was expansive. In many ways, it is remarkable how easily the delegates embraced the fundamentals of Madison's plan, given its sharp break from anything they, or anyone else, had known. But there was fierce debate and dissension. And two things stand out. First, that in each case a compromise was found. And these compromises, at least in retrospect, reinforced Madison's larger theory of dividing power to foster liberty, although Madison himself didn't necessarily see it that way at the time.

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The sharpest debates among the framers revolved around two questions, both relating to the division of political power: Would the states continue to have a meaningful independent role as a balance to federal power, and would the president be independent enough to keep a check on the new Congress? The delegates would answer yes to both of these questions, changing Madison's Virginia Plan, before its ink was truly dry. But these changes would not come easily. Madison and his allies would resist, exhibiting the same fierce pursuit of self-interest their proposed government was meant to modulate. But in the end they would compromise and move on, exhibiting the conduct that their proposed government demanded of its participants for progress. Madison's principles would remain intact, but the details of the plan would change to accommodate the variety of interests that would be expressed by the delegates.

The debate over state power was the most difficult. Madison and many of the like-minded delegates were disgusted with the state legislatures. As a result, the Virginia Plan as Randolph presented it envisioned near total federal dominance over the states. Congress would be authorized to legislate on all national matters and even say no to all state laws that it, Congress, determined to be contrary to the proposed Constitution.

But the convention would not go that far. Over the weeks, the delegates rolled Madison's plan back and increased the power of the states, creating a dual sovereignty (federal and state) that is one of the distinctive features of American government.

First, the convention quickly killed the idea that the Congress could negate state laws. Next it decided that the powers of the federal government would be limited to those explicitly granted, such as the regulation of national and international commerce, foreign relations and the declaration and management of war.

But then there was the question of whether states would be equally represented in the Congress, regardless of their population, which is how the Continental Congress worked under the Articles of Confederation. The subject nearly destroyed the convention, and might have, had it not been for a former shopkeeper from the little state of Connecticut.

In Madison's plan, there were two houses in Congress, to keep an eye on each other, but in each house representatives would be in proportion to population.

The states with the biggest populations, however defined, would have the most representatives. On this subject there would be no easy resolution. Delegates from the smaller states—Connecticut, Delaware, New Jersey and Georgia, as well as New York and Maryland—were ferociously opposed to this proposition, wanting equal representation for each state in the new legislature. Their argument ironically mirrored Madison's claim that majority factions in the states were snuffing out the liberty of minorities.

Roger Sherman, a self-trained lawyer from Connecticut, made the point forcefully: “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.” This view was amplified by Gunning Bedford of Connecticut on June 30, after several votes on the topic revealed the large states' unwillingness to compromise on the issue. “If political Societies possess ambition, avarice, and all the other passions which render them formidable to each other, ought we not to view them in this light here? Will not the same motives operate in America as elsewhere? If any gentleman doubts it let him look at the votes. Have they not been dictated by interest, by ambition? Are not the large States evidently seeking to aggrandize themselves at the expense of the small?”

But neither Madison nor his allies acknowledged the parallels between their view of human conduct and their own immediate conduct. In fact, many shared Benjamin Franklin's confusion over “what advantage the greater States could propose to themselves by swallowing the smaller.” Whatever the real substance behind the small states' fear of the larger ones, there was no question that it generated ferocious sentiments and almost imploded the convention until a compromise was struck.

Roger Sherman had the solution. It was June 11, 1787, and the delegates were in their second week of debating the Virginia Plan. Sherman, sixty-six, had been a shoemaker, a store owner, a surveyor, Connecticut official in various branches and levels of government, a member of both the First and Second Continental Congress and a signer of the Declaration of Independence. He would also sign the Constitution, lead the ratification battle in Connecticut and serve in the Congress as both a representative and a senator until his death in 1793.

Sherman had arrived late for the convention. Connecticut had waited until the last minute to answer the convention call, and Sherman, on the way, had stopped to shop for two days in New York. Arriving on May 30, he missed Randolph's presentation of the Virginia Plan. But on the very next day he appears to have expressed Connecticut's initial position that change, but only a little change, was necessary. As Madison noted: “Mr. Sherman . . . admitted that the Confederation had not given sufficient power to Congress and that additional powers were necessary . . . he seemed however not to be disposed to make too great inroads on the existing system.”

Roger Sherman became a wonderful example of that great American tradition of the man from a small state finding a big voice. Throughout the debate Sherman spoke 138 times, third only to Madison and Gouverneur Morris. He would be a constant voice for small-state power, but also a committed nationalist looking for compromise in the service of that latter goal.

On this day, June 11, the delegates focused on the Virginia Plan's proposal for a “national Legislature.” They had already decided for the first time, and without debate, that the national legislature would be divided into two houses and, with considerable debate, that members of the House of Representatives would be elected directly by the people. Sherman had opposed the latter decision, arguing instead that members of the lower house ought to be chosen by state legislatures because the people are without “information and are constantly liable to be misled.” And on June 7 the delegates, on a motion by John Dickinson, had voted in favor of a motion that senators be chosen by the state legislatures, rather than by the House of Representatives.

Now the question was the proportionality of representation, or, as Franklin put it, whether “the number of Representatives should bear some proportion to the number of the Represented.” The day had started with the adoption of a motion that the lower house of the new legislature be proportioned on the basis of a state's population. Connecticut, alone among the small states, had supported it. Sherman then offered his idea as a compromise between the big states, which wanted proportionality in both houses, and the small states, which wanted each state to have equality of voting in both houses. He moved “that a question be taken whether each State shall have one vote in the 2d. branch [Senate]. Every thing 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.” This warning was not Sherman's alone. Only two days earlier Paterson had complained that proportional representation would strike “at the existence of the lesser states,” and had warned, according to Madison's notes, that “N. Jersey will never confederate on the plan before the Committee. She would be swallowed up. He [Paterson] had rather submit to a monarch, to a despot, than to such a fate. He would not only oppose the plan here but on his return home do everything in his power to defeat it there.”

But Madison and his allies were not listening. Their passion for their own view on the issue (self-interest) and certainty of their own position (self-regard) drove them first to defeat Sherman's compromise motion and then to immediately pass a motion (6–5) for proportionality in the upper house of the new legislature. This move ended any chance for a quick resolution of the issue. As Franklin observed on June 11, “It has given me a great pleasure to observe that till this point, the proportion of representation, came before us, our debates were carried on with great coolness & temper.” But not on this issue.

Here the gloves were off. Anyone troubled by the supposedly negative nature of modern political discourse should read the convention notes for June 30, 1787. The usually very decorous Madison charged that Mr. Sherman's Connecticut had shirked its responsibilities during the Revolutionary War and afterward by refusing to comply with requisitions from the Continental Congress. To which Oliver Ellsworth of Connecticut responded by assuring the delegates that “the muster rolls will show that she had more troops in the field even than the State of Virginia.” Clearly, serious discussion had come to a halt. Elbridge Gerry of Massachusetts “lamented” that the delegates, “instead of coming here like a band of brothers, belonging to the same family, . . . seemed to have brought with [them] the spirit of political negotiators.” The stakes were high. The “fate of America,” wrote Gouverneur Morris, “was suspended by a hair.”

Nevertheless, the debate continued, for two reasons. First, substantively, the convention could not succeed without large majorities (consensus) on fundamental questions. Nothing but a state's own vote could make it subject to the new Constitution, and proportional representation was the type of issue that could result in either no Constitution or two nations. It fact, several times in the debate delegates on both sides of the issue suggested the option of more than one nation. But the vast majority of delegates agreed with Nathaniel Gorham of Massachusetts, who on June 29 declared “that a rupture of the Union would be an event unhappy for all,” and with Madison's view that such a rupture could lead to “the same causes which have rendered the old world the Theatre of incessant wars and have banished liberty from the face of it.” The delegates wanted a national government and shared the hope of Ellsworth “that some good plan of Government would be devised and adopted.”

Second, procedurally, the June 11 votes were not final. The delegates would have to vote again. This round of votes had taken place in the Committee of the Whole House, which was simply the convention (that is, all the delegates) acting under far more informal rules than those that they had adopted for their formal processes. This informality allowed members to test ideas, proceed without rigid quorums and speak more frequently. But a vote of the Committee of the Whole House did not constitute a vote of the convention. The convention itself would have to reconsider every matter sent to it by the committee. In this case it meant that there would have to be another vote on the makeup of the Senate, hopefully after deliberation had cooled passions.