CHAPTER II.
Construction of a Legislative Power.—Basis of Representation, and Rule of Suffrage.—Powers of Legislation.
The Convention having been organized, Governor Randolph of Virginia[10] submitted a series of resolutions, embracing the principal changes that ought to be proposed in the structure of the federal system.
Mr. Charles Pinckney of South Carolina also submitted a plan of government, which, with Governor Randolph's resolutions, was referred to a committee of the whole. It is not necessary here to state the details of these several systems; for although that introduced by Randolph gave a direction to the deliberations of the committee, the results arrived at were in some respects materially different.
The first distinct departure that was made from the principles of the Confederation was involved in one of the propositions brought forward by Governor Randolph, "that a National government ought to be established, consisting of a supreme legislative, executive, and judiciary"; and as this proposition was affirmed in the committee by a vote of six States, it is important to understand the sense in which it was understood by them.[11]
Most of the framers of the Constitution seem to have considered that a compact between sovereign States, which rested for its efficacy on the good faith of the parties, and had no other compulsory operation than a resort to arms against a delinquent member, was a "federal" government. This was the principle of the Confederation. At this early stage of their deliberations, the idea which was intended by those who favored a change of that principle, when they spoke of a "national" government, was one that would be a supreme power with respect to certain national objects committed to it, and that would have some kind of direct compulsory action upon individuals. This distinction was understood by all to be real and important. It led directly to the question of the powers of the Convention, and formed the early line of division between those who desired to adhere to the existing system, and those who aimed at a radical change. The former admitted the necessity for a more effective government, and supposed that the Confederation could be made so by distributing its powers into the three great departments of a legislative, executive, and judiciary; but they did not suggest any mode by which those powers could be made supreme over the authority of the separate States. The latter contended, that there could be no such thing as government unless it were a supreme power, and that there could be but one supreme power over the same subjects in the same community; that supreme power could not from the nature of things act on the States collectively, in the usual and peaceful mode in which the operations of government ought to be conducted, but that it must be able to reach individuals; and that, as the Confederation could not operate in this way, the distribution of its powers into distinct departments would be no improvement upon the present condition of things.
But when the distinction between a national and a federal government had been so far developed, the subject was still left in a great degree vague and indeterminate. What was to mark this distinction as real, and give it practical effect? By what means was the government, which was now, as all admitted, a mere federal league between sovereign States, to become, in any just sense, national? The idea of a nation implies the existence of a people united in their political rights, and possessed of the same political interests. A national government must be one that exercises the political rights, and protects the political interests, of such a people. But, hitherto, the people of the United States had been divided into distinct sovereignties; and although by the Articles of Confederation some portion of the sovereign power of each of the separate States had been vested in a general government, that government had been found inefficient, and incapable of resisting the great power that had been reserved to the respective States, and was constantly exerted by them. The difficulty was, that the constituent parties to the federal union were themselves political governments and sovereigns; the people of the States had no direct representation, and no direct suffrage, in the general legislature; and as in a republican government the representation and the suffrage must determine its character, it became obvious that, in order to establish a national government that would embrace the political rights and interests of the people inhabiting the States, the basis of representation and the rule of suffrage must be changed.
It being assumed that the new government was to be divided into the three departments of the legislative, executive, and judiciary, several questions at once presented themselves with regard to the constitution of the national legislature. Was it to consist of one or of two houses? and if the latter, what was to be the representation and the rule of suffrage in each?
The resolutions of Governor Randolph raised the question as to the rule of suffrage, before the committee had determined on the division of the legislative power into two branches. One of his propositions was, "That the rights of suffrage in the national legislature ought to be proportioned to the quotas of contribution, or to the number of free inhabitants, as the one or the other rule may seem best in different cases." This was no sooner propounded, than a difficulty was suggested by the deputies of the State of Delaware, which threatened to impede the whole action of the Convention. They declared that they felt restrained by their commissions from assenting to any change of the rule of suffrage, and announced their determination to retire from the Convention if such a change were adopted. The firmness and address of Madison and Gouverneur Morris surmounted this obstacle. They declared that the proposed change was absolutely essential to the formation of a national government; but they consented to postpone the question, having ascertained that it would finally be carried.[12]
The committee thereupon immediately determined that the national legislature should consist of two branches,[13] and proceeded to consider the mode of representation and suffrage in both. As the discussions proceeded, the members became divided into two parties upon the general subject; the one was for a popular basis and a proportionate representation in both branches; the other was in favor of an equal representation by States in both. The first issue between them was made upon the House, or what was termed the first branch of the legislature. On the one side it was urged, that to give the election of this branch to the people of the States would make the new government too democratic; that the people were unsafe depositaries of such a power, not because they wanted virtue, but because they were liable to be misled; and that the State legislatures would be more likely to appoint suitable persons. On the other hand, it was admitted that an election of the more numerous branch of the national legislature by the people would introduce a true democratic principle into the government, and this, it was said, was necessary. It was urged that this branch of the legislature ought to know and sympathize with every part of the community, and ought therefore to be taken, not only from different parts of the republic, but also from different districts of the larger members of it. The broadest possible basis, it was said, ought to be given to the new system; and as that system was to be republican, a direct representation of the people was indispensable. To increase the weight of the State legislatures, by making them electors of the national legislature, would only perpetuate some of the worst evils of the Confederation.
A decided majority of the States sustained the election of the first branch of the national legislature by the people.[14] Great efforts were, however, subsequently made to change this decision; and the discussion which ensued on a motion that this branch should be elected by the State legislatures, throws much light upon the nature of the government which the friends of an election by the people were aiming to establish. From that discussion it appears that the idea was already entertained of forming a government that should have a vigorous authority derived directly from the people of the States,—one that should possess both the force and the sense of the people at large. For the formation of such a government one of two courses was necessary: either to abolish the State governments altogether; or to leave them in existence, and to regard the people of each State as competent to withdraw from their local governments such portions of their political power as they might see fit to bestow upon a national government. The latter plan was undoubtedly a novelty in political science; for no system of government had yet been constructed in which the individual stood in the relation of subject to two distinct sovereignties, each possessed of a distinct sphere, and each supreme in its own sphere. But if the American doctrine were true, that all supreme power resides originally in the people, and that all governments are constituted by them as the agents and depositaries of that power, there could be no incompatibility in such a system. The people who had deposited with a State government the sovereign power of their community, could withdraw it at their pleasure; and as they could withdraw the whole, they could withdraw a part of it. If a part only were withdrawn, or rather, if the supreme power in relation to particular objects were to be taken from the State governments, and vested in another class of agents, leaving the authority of the former undiminished except as to those particular objects, the individual might owe a double allegiance, but there could be no confusion of his duties, provided the powers withdrawn and revested were clearly defined.
The advocates of a national government, besides and beyond the intrusting of a particular jurisdiction to that government, wished to make it certain that its legislative power, in each act of legislation, should rest on the direct authority of the people. For this purpose they desired to avoid all agency of the State governments in the appointment of the members of the national legislature. They held this to be necessary for two reasons. In the first place, they said that in a national government the people must be represented; and that in a republican system the real constituent should act directly, and without any intermediate agency, in the appointment of the representative. In the second place, they deduced from the objects of a national government the necessity for excluding the agency of the State governments in the appointment of those who were to exercise its legislative power. Those objects, they contended, were not fully stated by their opponents. The latter generally regarded the objects of the Union as confined to defence against foreign danger and internal disorder; the power to make binding treaties with foreign countries; the regulation of commerce, and the power to derive revenues therefrom.[15] The former insisted that another great object must be, to provide more effectually for the security of private rights, and the steady dispensation of justice. Mr. Madison declared that republican liberty could not long exist under the abuses of it which had been practised in some of the States, where the uncontrollable power of a majority had enabled debtors to elude their creditors, the holders of one species of property to oppress the holders of another species, and where paper money had become a stupendous fraud. These evils had made it manifest that the power of the State governments, even in relation to some matters of internal legislation, must be to some extent restrained; and in order effectually to restrain it, the national government must, in the construction of its departments, as well as in its powers, be derived directly from the people.[16]
These views again prevailed as to the first branch, and Mr. Pinckney's proposition for electing that branch by the State legislatures was negatived by a vote of three States in the affirmative, and eight in the negative.[17]
But as soon as the impracticability of abolishing the State governments was seen and admitted,—and it was at once both seen and admitted by some of the strongest advocates for a national government,—it became apparent to a large part of the assembly, that to exclude those governments from all agency in the election of both branches of the national legislature would be inexpedient. It would obviously have been theoretically correct to have given the election of both the Senate and the House to the people of the States, especially when it was intended to adhere to the principle of a proportionate representation of the people of the States in both branches.[18] But the necessity for providing some means by which the States, as States, might defend themselves against encroachments of the national government, made it apparent that they must become, in the election, a constituent part of the system. No mode of doing this presented itself, except to give the State legislatures the appointment of the less numerous branch of the national legislature,—a provision which was finally adopted in the committee by the unanimous vote of the States.[19]
The results thus reached had settled for the present the very important fact, that the people of the States were to be represented in both branches of the legislature; that for the one they were to elect their representatives directly, and for the other they were to be elected by the legislature of the State.
But when it had been ascertained by whom the members of the two branches were to be elected, there remained to be determined the decisive question, which was to mark still more effectively the distinction between a purely national and a purely federal government, namely, the rule of suffrage, or the ratio of representation in the national legislature.
The rule of suffrage adopted in the first Continental Congress was, as we have seen, the result of necessity; for it was impossible to ascertain the relative importance of each Colony; and, moreover, that Congress was in fact an assembly of committees of the different Colonies, called together to deliberate in what mode they could aid each other in obtaining a redress of their several grievances from Parliament and the Crown. But while, from the necessity of the case, they assigned to each Colony one vote in the Congress, they looked forward to the time when the relative wealth or population of the Colonies must regulate their suffrage in any future system of continental legislation.[20] The character of the government formed by the Articles of Confederation had operated to postpone the arrival of this period; because it was in the very nature of that system that each State should have an equal voice with every other. This system was the result of the formation of the State governments, each of which had become the present depositary of the political powers of an independent people.
But if this system were to be changed,—if the people of the States were to be represented in each branch of the national legislature,—some ratio of representation must be adopted, or the idea of connecting them as a nation with the government that was to be instituted must be abandoned. It was obviously for the interest of the larger States, such as Virginia, Pennsylvania, and Massachusetts,—then the three leading States in point of population,—to have a proportionate representation of their whole inhabitants, without reference to age, sex, or condition. On the other hand, it was for the interest of the smaller States to insist on an equality of votes in the national legislature, or at least on the adoption of a ratio that would exclude some portions of the population of the great States. Some of the lesser States were exceedingly strenuous in their efforts to accomplish these objects, and more than once, in the course of the proceedings, declared their purpose to form a union on no other basis.
In this posture of things the alternatives were, either to form no union at all, or only to form one between the large States willing to unite on the basis of proportionate representation; or to abolish the State governments, and throw the whole into one mass; or to leave the distinctions and boundaries between the different States, and adopt some equitable ratio of suffrage, as between the people of the several States, in the national legislature. The latter course was adopted in the committee, as to the first branch, by a vote of seven States in the affirmative, against three in the negative, one being divided.[21]
The question was then to be determined, by what ratio the representation of the different States should be regulated; and here again any one of several expedients might be adopted. The basis of representation might be made to consist of the whole number of voters, or those on whom the States had conferred the elective franchise; or it might be confined to the white inhabitants, excluding all other races; or it might include all the free inhabitants of every race, excluding only the slaves; or it might embrace the whole population of each State. Some examination of each of these plans will illustrate the difficulties which had to be encountered.
To have adopted the number of legal voters of the States as the ratio of representation in the national legislature would have been to adopt a system in which there were great existing inequalities. The elective franchise had been conferred in the different States upon very different principles; it was very broad in some of the States, and much narrower in others, according to their peculiar policy and manners. These inequalities could scarcely have been removed; for the right of suffrage in some of the States was more or less connected with their systems of descent and distribution of property, and those systems could not readily be changed, so as to adapt the condition of society to the new interest of representation and influence in the general government. This plan was, therefore, out of the question.
It was nearly as impracticable, also, to confine the basis of representation to the white inhabitants of the States. Some of the States—such as Massachusetts, Connecticut, Rhode Island, New York, and Pennsylvania, in which slavery was already, or was ultimately to become, extinct, and Maryland, North Carolina, and Virginia, where slavery was likely to remain—had large numbers of free blacks. These inhabitants, who were regarded as citizens in some of the States, but not in others, were in all a part of their populations, contributing to swell the aggregate of the numbers and wealth of the State, and thus to raise it in the scale of relative rank. Their personal consequence, or social rank, was a thing too remote for special inquiry. A State that contained five or ten thousand of these inhabitants might well say, that, although of a distinct race, they formed an aggregate portion of its free population, too large to be omitted without opening the door to inquiries into the condition and importance of other classes of its free inhabitants. This was the situation of all the Northern States except New Hampshire, as well as of all the Middle and Southern States; and it was especially true of Virginia, which had nearly twice as many free colored persons as any other State in the Union.
It was equally impracticable to form a national government in which the basis of representation should be confined to the free inhabitants of the States. The five States of Maryland, Virginia, North Carolina, South Carolina, and Georgia, including their slaves, were found by the first census, taken three years after the formation of the Constitution, to contain a fraction less than one half of the whole population of the Union.[22] In three of those States the slaves were a little less than half, and in two of them they were more than half, as numerous as the whites.[23] There was no good reason, therefore,—except the theoretical one that a slave can have no actual voice in government, and consequently does not need to be represented,—why a class of States containing nearly half of the whole population of the confederacy should consent to exclude such large masses of their populations from the basis of representation, and thereby give to the free inhabitants of each of the other eight States a relatively larger share of legislative power than would fall to the free inhabitants of the States thus situated. The objection arising from the political and social condition of the slaves would have had great weight, and indeed ought to have been decisive of the question, if the object had been to efface the boundaries of the States, and to form a purely consolidated republic. But this purpose, if ever entertained at all, could not be followed by the framers of the Constitution. They found it indispensable to leave the States still in possession of their distinct political organizations, and of all the sovereignty not necessary to be conferred on the central power, which they were endeavoring to create by bringing the free people of these several communities into some national relations with each other. It became necessary, therefore, to regard the peculiar social condition of each of the States, and to construct a system of representation that would place the free inhabitants of each distinct State upon as near a footing of political equality with the free inhabitants of the other States as might, under such circumstances, be practicable. This could only be done by treating the slaves as an integral part of the population of the States in which they were found, and by assuming the population of the States as the true basis of their relative representation.
It was upon this idea of treating the slaves as inhabitants, and not as chattels, or property, that the original decision was made in the committee of the whole, by which it was at first determined to include them.[24] Having decided that there ought to be an equitable ratio of representation, the committee went on to declare that the basis of representation ought to include the whole number of white and other free citizens and inhabitants, of every age, sex, and condition, including those bound to servitude for a term of years; and they then added to the population thus described three fifths of all other persons not comprehended in that description, except Indians not paying taxes. The proportion of three fifths was borrowed from a rule which had obtained the sanction of nine States in Congress, in the year 1783, when it was proposed to change the basis of contribution by the States to the expenses of the Union from property to population.[25] At that time, the slaveholding States had consented that three fifths of their slaves should be counted in the census which was to fix the amount of their contributions; and they now asked that, in the apportionment of representatives, these persons might still be regarded as inhabitants of the State, in the same ratio. The rule was adopted in the committee, with the dissent of only two States, New Jersey and Delaware; but on the original question of substituting an equitable ratio of representation for the equality of suffrage that prevailed under the Confederation, New York united with New Jersey and Delaware in the opposition, and the vote of Maryland was divided.
The next step was to settle the rule of suffrage in the Senate; and although it was earnestly contended that the smaller States would never agree to any other principle than an equality of votes in that body,[26] it was determined in the committee, by a vote of six States against five, that the ratio of representation should be the same as in the first branch.[27]
Thus it appears that originally a majority of the States were in favor of a numerical representation in both branches. The three States of Virginia, Pennsylvania, and Massachusetts, the leading States in population, and with them North Carolina, South Carolina, and Georgia, found it at present for their interest to adopt this basis for both houses of the national legislature. It was a consequence of the principle of numerical representation, that the slaves should be included; and it does not appear that at this time any delegate from a Northern State interposed any objection, except Mr. Gerry of Massachusetts, who regarded the slaves as "property," and said that the cattle and horses of the North might as well be included. But the State which he represented was at this time pressing for the rights of population, and for a system in which population should have its due influence; and her vote, as well as that of Pennsylvania, was accordingly given for the principle which involved an admission of the slaves into the basis of representation, and for the proportion which the slave States were willing to take.
These transactions in the committee of the whole are quite important, because they show that the original line of division between the States, on the subject of representation, was drawn between the States having the preponderance of population and the States that were the smallest in point of numbers. When, and under what circumstances, this line of division changed, what combinations a nearer view of all the consequences of numerical representation may have brought about, and how the conflicting interests were finally reconciled, will be seen hereafter. What we are here to record is the declaration of the important principle, that the legislative branch of the government was to be one in which the free people of the States were to be represented, and to be represented according to the numbers of the inhabitants which their respective States contained, counting those held in servitude in a certain ratio only.
The general principles on which the powers of the national legislature were to be regulated, were declared with a great degree of unanimity. That it ought to be invested with all the legislative powers belonging to the Congress of the Confederation was conceded by all. This was followed by the nearly unanimous declaration of a principle, which was intended as a general description of a class of powers that would require subsequent enumeration, namely, that the legislative power ought to embrace all cases to which the State legislatures were incompetent, or in which the harmony of the United States would be interrupted by the exercise of State legislation. But the committee also went much farther, and without discussion or dissent declared that there ought also to be a power to negative all laws passed by the several States contravening, in the opinion of the national legislature, the Articles of Union, or any treaties made under the authority of the Union.[28]
The somewhat crude idea of making a negative on State legislation a legislative power of the national government, shows that the admirable discovery had not yet been made of exercising such a control through the judicial department. Without such a control lodged somewhere, the national prerogatives could not be defended, however extensive they might be in theory. There had been, as Mr. Madison well remarked, a constant tendency in the States to encroach on the federal authority, to violate national treaties, to infringe the rights and interests of each other, and to oppress the weaker party within their respective jurisdictions. The expedient that seemed at first to be the proper remedy, and, as was then supposed, the only one that could be employed as a substitute for force, was to give the general government a power similar to that which had been exercised over the legislation of the Colonies by the crown of England, before the Revolution; and there were some important members of the Convention who at this time thought that this power ought to be universal.[29] They considered it impracticable to draw a line between the cases proper and improper for the exercise of such a negative, and they argued from the correctness of the principle of such a power, that it ought to embrace all cases.
But here the complex nature of the government which they were obliged to establish made it necessary to depart from the theoretical correctness of a general principle. The sovereignty of the States would be entirely inconsistent with a power in the general government to control their whole legislation. As the direct authority of the national legislature was to extend only to certain objects of national concern, or to such as the States were incompetent to provide for, all the political powers of the States, the surrender of which was not involved in the grant of powers to the national head, must remain; and if a general superintendence of State legislation were added to the specific powers to be conferred on the central authority, there would be in reality but one supreme power in all cases in which the general government might see fit to exercise its prerogative. The just and proper sphere of the national government must be the limit of its power over the legislation of the States. In that sphere it must be supreme, as the power of each State within its own sphere must also be supreme. Neither of them should encroach upon the prerogatives of the other; and while it was undoubtedly necessary to arm the national government with some power to defend itself against such encroachments on the part of the States, there could be no real necessity for making this power extend beyond the exigencies of the case. Those exigencies would be determined by the objects that might be committed to the legislation of the central authority; and if a mode could be devised, by which the States could be restrained from interfering with or interrupting the just exercise of that authority, all that was required would be accomplished.[30]
But to do this by means of a negative that was to be classed among the legislative powers of the new government, was to commit the subject of a supposed conflict between the rights and powers of the State and the national governments to an unfit arbitration. Such a question is of a judicial nature, and belongs properly to a department that has no direct interest in maintaining or enlarging the prerogatives of the government whose powers are involved in it.
But the framers of the Constitution had come fresh from the inconveniences and injustice that had resulted from the unrestrained legislative powers of the States. Some of them believed it, therefore, to be necessary to make the authority of the United States paramount over the authority of each separate State; and a negative upon State legislation, to be exercised by the legislative branch of the national government, seemed to be the readiest way of accomplishing the object. Some of the suggestions of the mode in which this power was to operate strike us, at the present day, as singularly strange. No less a person than Mr. Madison, in answer to the objections arising from the practical difficulties in subjecting all the legislation of all the States to the revision of a central power, thought at this time that something in the nature of a commission might be issued into each State, in order to give a temporary assent to laws of urgent necessity. He suggested also that the negative might be lodged in the Senate, in order to dispense with constant sessions of the more numerous branch.
But the radical objection to any plan of a negative on State legislation, as a legislative power of the general government, was, that it would not in fact dispense with the use of force against a State in the last resort. If, after the exercise of the power, the State whose obnoxious law had been prohibited should see fit to persist in its course, force must be resorted to as the only ultimate remedy. How different, how wise, was the expedient subsequently devised, when the appropriate office of the judicial power was discerned,—a power that waits calmly until the clashing authorities of the State and the nation have led to a conflict of right or duty in some individual case, and then peacefully adjudicates, in a case of private interest, the great question, with which of the two governments resides the power of prescribing the paramount rule of conduct for the citizen! Disobedience on the part of the State may, it is true, still follow after such an adjudication, and against an open array of force on the one side nothing but force remains to be employed on the other. But the great preventive of this dread necessity is found in the fact, that there has been an adjudication by a tribunal that commands the confidence of all, and in the moral influence of judicial determinations over a people accustomed to submit not only their interests, but their feelings even, to the arbitrament of juridical discussion and decision.