by Lynne Cheney
A stunned silence followed as delegates took in the implications of Randolph’s words. George Wythe of Virginia broke the spell to ask if “gentlemen are prepared to pass on the resolution.” Delegates jumped to their feet, one declaring that the resolution carried the convention beyond what Congress had mandated, another that it could abolish state governments and annihilate the confederation. Gouverneur Morris hammered home its necessity. Every community needed “one supreme power and one only,” and self-government would eventually fail if a central authority were not instituted. “We had better take a supreme government now,” he said, “than a despot twenty years hence—for come he must.” The delegates passed Randolph’s resolution and entered wholly new territory.10 They were no longer considering a revision of the Articles of Confederation; they were planning an entirely different form of government.
The monumental difficulty of that task was apparent as soon as delegates began to debate the Virginia Plan’s second item, the one providing for proportional representation in the national legislature. George Read of Delaware, one of the signers of the Declaration of Independence, rose to say that should the convention move away from the formula that gave each state an equal vote, his state’s delegates might find it “their duty to retire from the convention.” Madison pushed back, arguing that while equal representation for each state made sense in a confederacy, “it must cease when a national government was put into the place.” But so firmly did Read dig in his heels that delegates finally agreed to postpone consideration of the second article. Even as Madison recorded the postponement, however, he remained confident that “the proposed change of representation would certainly be agreed to.”11 How could it be otherwise? It was both unjust and unreasonable for Delaware to have the same power in the general government as Virginia—which had nearly ten times the population.
There was quick agreement to article 3, which provided that the legislature would have two branches, but when delegates came to article 4, which provided for the first branch to be elected “by the people,” a major dispute broke out. Roger Sherman of Connecticut, an ungainly, square-jawed man with little education but a canny mind, declared that the people “should have as little to do as may be about the government. They want information and are constantly liable to be misled.” Elbridge Gerry of Massachusetts wholeheartedly agreed. A thin man of forty-two with pointed, birdlike features, Gerry had served in the Massachusetts legislature during the uprising of Daniel Shays and his rebels, and that experience had informed his opinion of popular rule. “The evils we experience flow from the excess of democracy,” he declared. “The people do not want virtue, but are the dupes of pretended patriots.” George Mason, on the other hand, his hair turned white now, believed popular election would be one of the glories of the new-modeled government. It would make the first branch of the legislature “the grand depository of the democratic principle.” Madison offered the image of a majestic edifice, declaring, “The great fabric to be raised would be more stable and durable if it should rest on the solid foundation of the people themselves.”12
The debate gave Madison the opportunity to advance the theory he had mulled over in New York. In jurisdictions as small as states, majorities had trampled on minority rights. “Debtors have defrauded their creditors,” he said. “The holders of one species of property have thrown a disproportion of taxes on the holders of another species.” The way to secure private rights and steady justice, he said, was to “enlarge the sphere and thereby divide the community into so great a number of interests and parties that in the first place a majority will not be likely at the same moment to have a common interest separate from that of the whole or of the minority; and in the second place, that in the case they should have such an interest, they may not be apt to unite in the pursuit of it.” Having the people vote rather than the states would create a scale sufficient to counteract the injustices that “had more perhaps than anything else produced this convention.”13 When the question was called, delegates affirmed popular election of the first branch, but they stumbled over the method of electing the second. Delegates rejected the idea proposed in article 5 of the Virginia Plan for having the first branch choose the second out of persons nominated by individual legislatures and moved on without approving an alternative.
Article 6 contained a clause particularly important to Madison. It gave the national legislature the right “to negative all laws passed by the several states, contravening in the opinion of the national legislature the articles of union.” This wasn’t quite the “negative in all cases whatsoever” that he had advocated in letters written in March and April, but Madison must have run into resistance in preconvention meetings and so had placed some limits on the legislative veto over the states set forth in the Virginia Plan. Still, even modified, the negative amounted to a sweeping power, one Madison thought essential to controlling state governments. And so—for the moment—did the delegates. The measure passed “without debate or dissent.”14
The framework Madison had conceived for a new government was making fine progress—until June 7, when Delaware reentered the fray. Fifty-four-year-old John Dickinson, the delegation’s frail, scholarly leader, pressed the idea of having the second branch of the national legislature, now being called the Senate, appointed by state legislatures. This would ensure that even Delaware, the least populous state, would have a place. “Let our government be like that of the solar system,” Dickinson said. “Let the general government be the sun and the states the planets, repelled yet attracted, and the whole moving regularly and harmoniously in their respective orbits.”15 After no less a personage than George Mason expressed sympathy for Dickinson’s view, the proposal passed in the committee of the whole by a vote of 11 to 0. Madison failed to carry his own delegation, nor could the shrewd, bespectacled James Wilson, who had become Madison’s close ally, carry Pennsylvania.
The next day Madison circled back to the legislative veto. He had made alliance with Charles Pinckney, a handsome twenty-nine-year-old from South Carolina, who stood on June 8 to urge that the veto be absolute, as Madison had originally wanted. Without it, the states would intrude on national powers, “however extensive they might be on paper,” said Pinckney. Madison seconded Pinckney’s motion and used his own Newtonian metaphor, calling the absolute veto essential for keeping the proper balance between the center and the satellites: “This prerogative of the general government is the great pervading principle that must control the centrifugal tendency of the states; which, without it, will continually fly out of their proper orbits and destroy the order and harmony of the political system.”16
John Dickinson, having beaten Madison soundly the day before, now took the floor to agree that without proper control the states posed a threat to the general government. His declaration brought Gunning Bedford Jr., the firebrand of the Delaware delegation, out of his chair. He was “very corpulent,” according to William Pierce of Georgia, and smart as well. But, to use Pierce’s words, he was also “warm and impetuous in his temper, and precipitate in his judgment.” The large states, empowered by proportional representation, would use the absolute veto to “crush the small ones whenever they stand in the way of their ambitions or interested views,” Bedford insisted. He charged Pennsylvania and Virginia with wishing “to provide a system in which they would have an enormous and monstrous influence.”17
Madison, who had known Bedford at Princeton, responded with a temperate tone but a sharply pointed question. “What would be the consequence to the small states of a dissolution of the Union?” he asked. That would happen, he was suggesting, if the small states did not yield. But as Madison watched, the universal veto went down by 7 to 3, with one state divided. Virginia voted for the absolute veto, but as Madison noted, both Mr. Randolph and Mr. Mason voted no.18 His plans for bringing state governments under control were encountering stiff resistance even within his own delegation.
On June 9, a fair and warm Saturday, another small state made its op
position known. William Paterson of New Jersey, a short, unassuming man, asked that the act authorizing delegates from Massachusetts to the convention be read. Like the commissions from several states, it echoed the congressional resolution that the convention meet “for the sole and express purpose of revising the Articles of Confederation,” and Paterson used the authorization to make the case that delegates were exceeding their authority. “We ought to keep within [the congressional resolution’s] limits or we should be charged by our constituents with usurpation,” he said, and he went on to rail against the idea of proportional representation. “New Jersey will never confederate on the plan before the committee,” he said. “She would be swallowed up.” He would “rather submit to a monarch, to a despot, than to such a fate.”19
On the following Monday, June 11, as a hot spell settled in, Roger Sherman of Connecticut formally proposed that representation be according to population in the first branch and that equality of states be the rule in the second. But Madison and his allies were not interested in compromise, and they had the votes to prevail. Sherman’s motion failed 6 to 5. A subsequent motion by James Wilson and Alexander Hamilton for proportional representation in the Senate passed 6 to 5.
The small states, getting organized now, found the narrow margins heartening, as was the support they were receiving from states not so small. The newly arrived Luther Martin of Maryland, a confirmed antinationalist, took up their cause. Robert Yates and John Lansing Jr. of New York, who did not want their state under any sort of national control, supported the small states. These delegates joined in producing what history has come to call the New Jersey Plan, and Paterson presented it to the convention on June 15. Hewing closely to the words of the congressional charter, Paterson proposed a series of amendments to the Articles of Confederation that enhanced the powers of Congress and left the one-state-one-vote provision unaltered.20
Now there was an alternative to the Virginia Plan, and John Dickinson of Delaware told Madison that his stubborn refusal to compromise was to blame. Some might have taken Madison’s generally low-key behavior as a sign that he was naturally conciliatory, but Dickinson had witnessed how firmly fixed he could become. He told him he was at risk of losing small-state support for a strong national government by refusing to meet the small states halfway: “We would sooner submit to a foreign power than submit to be deprived of an equality of suffrage in both branches of the legislature and thereby be thrown under the domination of the large states.”21
The next day, Saturday, Madison was silent, taking notes, while James Wilson challenged the idea that the Virginia Plan violated the congressional mandate. “With regard to the power of the convention,” Wilson said, “he conceived himself authorized to conclude nothing, but to be at liberty to propose anything.” Edmund Randolph agreed, saying that “when the salvation of the Republic was at stake, it would be treason to our trust not to propose what we found necessary.” Randolph also reminded the delegates of the perilous state of the nation. “He painted in strong colors,” Madison recorded, “the imbecility of the existing confederacy and the danger of delaying a substantial reform.”22
Madison probably spent Sunday preparing his own critique of New Jersey’s proposal, but the following Monday, Alexander Hamilton dominated the proceedings with a six-hour speech. New Jersey’s proposal would lead to a government “weak and distracted,” said Hamilton, and Randolph’s proposals were not much better. “What even is the Virginia Plan but pork still, with a little change of the sauce?” he famously asked. The mistake of both plans was their reliance on democracy: “The people are turbulent and changing; they seldom judge or determine right.” What was needed was a government similar to Britain’s, with an executive and a senate that served for life. Giving permanent place to “the rich and well-born” would protect the public good from the “uncontrolling disposition” of the masses.23
Hamilton made a few practical suggestions, such as providing for executive succession. Should a vacancy occur, the president of the Senate would step in until a new “governor” was determined. But his plan was in general so far from what the convention was likely to accept—and the weather so miserably hot and muggy—that delegates did not bother to refute him. In later years, when he became very powerful, his opponents would recall his speech, however, and hold it up as effective evidence of his monarchical leanings.24
On June 19, Madison made his case. While the New Jersey Plan aimed at strengthening the Congress of the Confederation, Madison said, there were a multitude of ways in which it left the central government too weak. The states would still encroach on the general government and “bring confusion and ruin on the whole.” The states would still trespass on one another, threatening “the tranquility of the Union.” Nor could the small states be sure of their “internal tranquility,” he said. Paterson’s plan would do nothing to help them deal with insurrections, such as the recent uprising in Massachusetts. Madison warned the small states “to consider the situation in which they would remain in case their pertinacious adherence to an inadmissible plan should prevent the adoption of any plan.” If the Union dissolved, they would be far less secure than “under a general government pervading with equal energy every part of the empire and having an equal interest in protecting every part against every other part.”25
When Madison finished, Rufus King of Massachusetts posed a choice for the delegates: “whether Mr. Randolph’s [propositions] should be adhered to as preferable to those of Mr. Paterson.” The Virginia Plan won the day, 7 to 3, with one state divided, ending any hope the small states had of the New Jersey Plan being accepted—or of a future government resembling the one created by the Articles of Confederation.26
But the small states hadn’t given up on having an equal voice for each state in the Senate. Their chance came in late June, when rules for representation came up for formal consideration by the convention. On June 27, Luther Martin of Maryland took the floor. He offered a theoretical basis for the small-state view, arguing that since states, like individuals, enjoyed natural equality, equal voting for states “was founded in justice and freedom, not merely in policy.” But any summary of his speech misses the effect it had, because it went on for two days, exhausting him and everyone who listened. Some historians have suspected he was drinking, and he did have a reputation for consuming large amounts of alcohol, but either he didn’t drink when it counted or what he did drink didn’t generally affect his performance. He had a thriving law practice and would achieve historic acquittals, an unlikely outcome if he were given to drunken ramblings in the courtroom.27
Martin’s speech, which Madison said “was delivered with much diffuseness,” was probably a filibuster, a rhetorical form given to wandering diversions. He could well have been trying to hold off a vote on representation until a time advantageous to the small states. He had been a good friend of William Paterson since they had attended Princeton together in the mid-1760s, and Paterson might well have alerted him to absences in the New Jersey delegation that would keep that state from being able to vote.28 The small states were also hoping that delegates from New Hampshire would appear and strengthen their numbers.
If Martin’s purpose was to delay, he succeeded magnificently. He inspired Madison to give a long speech using reason and history to refute his ideas, and he so angered other delegates that they began quarreling. James Wilson rose to compare the small states to England’s rotten boroughs. Roger Sherman countered by describing the Virginia Plan as giving four states the power to govern nine. “As they will have the purse,” he declared, “they may raise troops and can also make a king when they please.”29
The wrangling, in turn, led Benjamin Franklin to address the delegates. Heretofore he had asked others to read his speeches, but now he delivered his words himself. Speaking directly to Washington, who was seated in the president’s chair, Franklin noted the “small progress” the delegates had made despite their “continual reasonings” with one another:
In this situation of this assembly, groping as it were in the dark to find political truth and scarce able to distinguish it when presented to us, how has it happened, sir, that we have not hitherto once thought of humbly applying to the Father of lights to illuminate our understandings? … I have lived, sir, a long time, and the longer I live, the more convincing proofs I see of this truth—that God governs in the affairs of men. And if a sparrow cannot fall to the ground without his notice, is it probable that an empire can rise without his aid?
Franklin wanted the delegates to step back from their quarrels, consider their larger purpose, and adopt an accommodating spirit. But the next morning, when Connecticut’s William Johnson renewed the idea that there be proportional representation in the first branch of the legislature and equality in the second, Madison made clear that he had no interest in compromise. He urged the small states “to renounce a principle which was confessedly unjust, which could never be admitted, and if admitted must infuse mortality into a constitution which we wished to last forever.”30
But the small states would not give up. On the next day, Saturday, Oliver Ellsworth, a tall, distinguished-looking delegate from Connecticut, said that equal representation in the Senate was necessary in order to protect the small states from large ones, and he appealed to the commitment states had made under the Articles of Confederation to give each an equal right of suffrage. Madison, clearly exasperated, fired back by holding Connecticut up as an example of what was wrong. It was the last state that ought to be calling for “an adherence to a common engagement,” he said. That state’s legislature “had by a pretty recent vote positively refused to pass a law” complying with federal requisitions and followed up by cheekily sending notice of the vote to Congress. And if the issue was protecting the interests of a group of states, what about those that arose from climate and from “having or not having slaves”? In his frustration Madison told a truth that the convention generally avoided. “The great division of interests in the United States … did not lie between the large and small states,” he said. “It lay between the northern and southern.” Therefore, he proposed sarcastically, in one branch of the legislature, representation would be determined by the number of free inhabitants plus the number of slaves. In the other, only free inhabitants would be counted. Thus, “the southern scale would have the advantage in one house and the northern in the other.”31