The Great Might-Have-Been of the Constitutional Convention

This Constitution Day, which marks the 238th anniversary of the adjournment of the Constitutional Convention, is also a dispiriting moment to dread how the nation will celebrate its semiquincentennial of American independence next year. Our historical imagination has always linked the Declaration of Independence of 1776 with its fulfillment in the adoption of the Constitution a decade later. Yet if one believes (as I wrote her three months ago) that we are living amid a state of perpetual crisis that amounts to systemic constitutional failure, much of the population will view this “celebration” in a state of despair. And they will wonder, as many scholars have argued, that the Constitution itself is a source of our political woes.

Amid this situation, one wonders what other plausible steps the Framers might have taken that would cure our constitutional failings. There were three particular moments at the 1787 Convention when the underlying structure of American politics could have taken a different form. Each moment involved the dispute over whether the states should have an equal vote in the Senate. Each pivoted on a critical choice that the delegates from the most populous (or largest) states faced: whether to confront the small states by threatening to break up the Convention if proportional representation was not applied to both houses of Congress. And each raised substantive problems that still plague American constitutionalism.

The first of these moments occurred shortly before the Constitutional Convention mustered a quorum on May 25, 1787, 11 days late. The Virginians, who had issued the invitation for the Convention, were in Philadelphia on time, as were the host Pennsylvanians—but the rest of the delegates straggled in. The second and most dramatic moment occurred on July 17, the day after the Convention narrowly approved the misnamed Connecticut (or Great) Compromise on Senate representation. And the third occurred on September 15, two days before the framers adjourned, in their last discussion of the rules for constitutional amendment.

Everything we know about these moments depends on James Madison’s Notes of Debates in the Federal Convention of 1787, which still dominate our understanding of what happened at Philadelphia. More than that, Madison was arguably the driving force behind the confrontation over representation in the Senate. Though legal scholars routinely hail Madison as the “father of the Constitution,” that is not the best account of his role.

A more accurate description would view Madison as the leading strategist of constitutional reform. No one contributed more than he did, first in making the Convention politically viable and then in shaping its agenda. He was the only framer in Philadelphia with a comprehensive reform program. His preparations laid the groundwork for the Virginia Plan that his close friend, Governor Edmund Randolph, introduced on May 28. That plan was drafted, however, only because the Virginia and Pennsylvania delegations were waiting for their delayed colleagues. Had they appeared on schedule, on May 14, the Convention might have taken a different course.

Madison made two calculations that were essential to his agenda. The first was constitutional in the fullest sense. The 36-year-old had concluded that an effective national government could not rely, as the Continental Congress had, on the willingness of the states to follow its decisions. Instead, the government had to be able to enact, execute, and adjudicate its own laws. This required a bicameral legislature, which drove Madison’s crucial political calculation. The representation in both houses would need to be proportional, based on population or property, or both. The main reason for this was Madison’s belief that the larger states would only agree to “the necessary concessions of power” if they were represented proportionally. The smaller states could protest all they wanted, but ultimately, “they must in every event yield to the predominant will.”

How to convince them to yield was the tactical problem that the Virginia and Pennsylvania delegations discussed in their caucus. The Pennsylvanians suggested that small states should be denied equal voting rights even within the Convention. The Virginians, probably led by Madison, responded that it would be a mistake to “beget fatal altercations” at the start. Instead, they should try to “prevail . . . in the course of the deliberations,” both by arguing for the necessity of the reform, but also by convincing the delegates from smaller states that they had no just claim to an equal vote.

Why did Madison believe this position would succeed? Mainly because he was promoting the new ideas of republican government that he had developed in the early spring of 1787. Madison anticipated that the small states would argue that the most populous states would collude to form majorities that could overpower the legitimate interests of smaller states. That was why the latter needed to keep the same equal vote in one house of the new Congress that they had possessed under the Articles of Confederation, which only had a single house of the Continental Congress.

The rebuttal that Madison and his allies, like James Wilson and Rufus, offered was to insist that no set of shared interests could ever unite the large states in a lasting coalition. Their economies and demographic features, including religion, race, and ethnicity, were too diverse. When asked to explain how the largest states could insidiously unite, the spokesmen for the small states had to admit that while they could not offer specific scenarios of collusion, the mere prospect of such was sufficient.

On July 16, Madison and his allies discovered that their strategy had failed. The crucial vote that day showed five states supporting the equal vote, four opposed, and Massachusetts divided and essentially abstaining. Although some historians have called it “the Great Compromise” between large and small states, this decision was manifestly not a compromise. The small states won, and the large states lost.

Madison was not alone in believing that the large states would prevail. In the immediate aftermath of the July 16 vote, their delegates were uncertain how to proceed with the agenda. When Virginia Governor Randolph suggested that the Constitutional Convention should adjourn—meaning to adjourn overnight—William Paterson thought he meant adjourn for good. Paterson had been the main author of the New Jersey Plan, which had been introduced in mid-June as a weak alternative to the Virginia Plan, which would have preserved the equal state vote in the existing Continental Congress. Paterson now said he would welcome Randolph’s suggestion.  “It was high time for the Convention to adjourn,” he declared, asserting “that our Constituents should be consulted. No conciliation could be admissible on the part of the smaller States.”

Temperers cooled after Randolph apologized upon seeing that “his meaning had been so readily & strangely misinterpreted.” But everyone knew the large state delegations needed to decide their next move. Would they answer Paterson’s ultimatum with their own? That discussion took place the following morning, when delegates from the large states caucused, along with some members from the small states. A discouraged Madison observed that “the time was wasted in vague conversation.” Not everyone attending agreed with Madison on the importance of proportional representation in both houses. Others, possibly the majority of those caucusing, believed it was crucial for the Convention to continue its work.

In between these two observations, however, Madison recorded what I believe was his own opinion. “Several of them supposing that no good Government could or would be built on that foundation and that a division of the Convention into two opinions was unavoidable, it would be better that the side comprising the principal States, and a majority of the people of America, should propose a scheme of Government to the states.” They would, in effect, make a “separate recommendation” of the constitution they preferred, one that would ignore the sincere if misguided concerns of the small states, who would be free to accept or reject it.

This form of high-stakes politics was too risky for the framers to accept. However, the fact that Madison was even willing to consider this alternative merits attention. What might have happened if the experiment had been tried? Could the small states have gone their separate ways? And how different might a constitution framed under these circumstances have been?

Working historians rarely speculate in counterfactual hypotheses. They usually see their task as explaining what actually happened without relying on wild card jokers to produce alternative endings. Yet, because so much depended on the vote of July 16, and because we are locked into that decision (a problem to be discussed shortly), a modicum of speculation might still have its uses.

What other path might the small states have taken if the larger states had created a constitution more to their liking? Would Rhode Island, the proverbial home of “Jews, Turks, and infidels,” have sought a protective alliance with the Catholic monarchies of France and Spain, the so-called Bourbon Family Compact? What would New Jersey—a keg tapped at both ends by the flourishing ports of Philadelphia and New York City—have done to preserve its economic independence? What about Maryland, that straggling state which combines its Eastern Shore counties with the narrow panhandle along the southern border of Pennsylvania? And would Delaware, often known as the “three lower counties” of William Penn’s proprietary grant, really be able to “find some foreign ally of more honor and good faith,” as their delegate Gunning Bedford once threatened?

This is the droll part of this speculation. The more serious question, constitutionally, involves imagining a different kind of Senate that would neither be elected by the state legislatures nor run with an equal state vote.

It helps to recognize that regarding the legislature’s upper house as a representative body was still a novelty for the American revolutionaries. The House of Lords, which was then much admired as a balancing mechanism within the vaunted British constitution, was not a representative body. It was simply the aristocracy meeting in one chamber, with no constituents to report to. The old colonial governments had councils that were considered to be primitive surrogates for the House of Lords, but their members were not aristocrats, and they acted mainly as advisory bodies to the governors, who had their own power to veto legislation.

The questions about what a federal Senate would be or what it would do remained more open than we might assume. James Wilson of Pennsylvania, for example, believed that senators should be elected by the people on a regional basis. The Virginia Plan originally suggested that state legislatures would nominate senatorial candidates and the House of Representatives would choose them, but without any guarantee that every state would have a senator. Madison saw the Senate not as a representative body but as a deliberative one. It should be a small chamber, and its main goal would be to modify or oppose the “impetuous” political currents that were likely to swirl through the lower house. Even after losing the critical decisions on the equal vote and the election of senators, he believed that a well-established republic needed a capable Senate. But he always thought that the entire idea of an equal state vote was flawed because the less populous states did not have distinct interests of their own that required special protection.

There was one final footnote to this story. On September 15, as the framers were making their final edits, the last subject they debated was the rules for constitutional amendments. Roger Sherman, the Connecticut delegate who had helped draft both the Declaration of Independence and the Articles of Confederation, “expressed his fears that three fourths of the States might be brought to do things fatal to particular States,” including “depriving them of their equality in the Senate.”

Sherman did not explain why this wound would be fatal, but he doggedly insisted that all the small states deserved the special protection that equal representation would bring. Madison, in reply, argued that if every state sought “special provisos” like this, “every State will insist upon them.” Sherman’s amendment to protect the equal vote failed, as did his further motion to eliminate the amendment procedure altogether. But Madison records that after the delegates heard “the circulating murmurs of the small States whirling through the room,” the entire Convention relented on a unanimous voice vote after Gouverneur Morris proposed “that no State, without its consent shall be deprived of its equal suffrage in the Senate.”

Here, once again, an opportunity was missed. Imagine if the Convention had included a provision similar to the twenty-year ban on any legislation affecting the slave trade. That interval would have put Madison’s sensible and entirely accurate point to an empirical test as to whether the size of a state’s population did or did not determine its interests. Over time, it could have prevented our own oft-repeated comparison between California and Wyoming.

Such an experiment could also have freed us from the problem we still face today. Suppose circumstances did force us to hold a new constitutional convention, what rule of voting would it follow? Would we not face the same dilemma that the Virginians and Pennsylvanians discussed in May 1787?

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