Representation: The Constitutional Debates That Shaped the Way We Vote

by Stacy Clifford

            One of the most important debates at the Constitutional Convention of 1787 concerned the method of choosing government officials.  Most delegates seemed to agree that they should in some way be approved of by the majority of the citizens they represented; however, they disagreed on whether or not this should be accomplished by a direct vote of the eligible citizens.  Should all government officials be chosen this way?  If not, which ones, and why?  Can the people be trusted with that kind of responsibility?  These are the questions that plagued the delegates in the summer of 1787, and their answers shaped the document that governs us today.

            Because the delegates considered the legislature to be the most important branch of government, debate began with the House of Representatives, in which members “ought to be elected by the people of the several States” as proposed by the Virginia Plan.  Roger Sherman opened the debate by opposing this method and insisting on election by the state legislatures.  He believed that the people should have as little immediate say in the government as possible because they did not possess enough information to make wise choices “and are constantly liable to be misled.”  Elbridge Gerry immediately backed this view by citing the experience of Massachusetts, where the people were “daily misled into the most baneful measures and opinions by the false reports circulated by designing men, and which no one on the spot can refute.”  In his experience, the people did not necessarily always have confidence in their state legislatures despite having directly elected them for these very reasons.  When arguments resumed several days later, he expressed his fear that the worst men might get into the legislature if elected by the people as in Massachusetts, where a large proportion of the population could vote and several members had recently been convicted of crimes.  He also warned against the converse, a very small proportion with suffrage stripping away the liberty of the rest of the people as in England.  Selfish men would use whatever means necessary to gain power in each case.  In order to balance these extremes, he proposed that the people be allowed to nominate candidates out of separate districts in each state.  The state legislatures, who would have access to more information than the public and be less easily misled, would then choose among the candidates.  Mr. Sherman argued that the purpose of a national government was mainly to handle foreign affairs and commerce, internal disputes, and the general defense, and that matters more directly affecting the people would best be handled by the states.  By this reasoning, the national government represented the people through the state governments, and the election of representatives by the state legislatures was “necessary in order to preserve harmony between the National and State governments.”

            George Mason of Virginia offered the first defense of the election of representatives by the people, saying the House of Representatives should be the “grand depository of the democratic principle of the government,” and likening it to an American House of Commons.  He believed that “It ought to know and sympathize with every part of the community;” therefore members should not only be taken from the states, but from different districts within the states.  Mason knew that all of the people of one state did not always share the same views, although this might be true in small states like Rhode Island or Connecticut.  In his own large state of Virginia ideas often varied among regions with differing economies and ways of life.  If the state legislatures appointed representatives, well-known men of the more prosperous districts might be chosen to the exclusion of poorer districts and frontier areas, creating unfair representation at the national level.  James Wilson supported this position, saying that the “federal pyramid” should have as broad a base as possible.  He considered the people’s confidence in their government to be essential to its maintenance, particularly in a republican form of government.  Increasing the weight of the state legislatures, the middle level of government, by allowing them the appointment of representatives would give them a greater opportunity to interfere with the operation of the national government, the top level, at the local level, the base of the pyramid.  He noted that “the opposition of States to federal measures had proceded much more from the officers of the States, than from the people at large” under the Articles of Confederation, which the people already distrusted.

            James Madison was the most vocal defender of the popular election of the House of Representatives.  His first concern was that if the members of each successively higher level of government were chosen by the members of the one below it, the topmost levels would be too far removed from the lowest, losing sight of the people’s wishes and becoming free to pursue their own.  The rulers would be more concerned with the opinions of their appointers than of those for whom they made the laws, and might even lose familiarity with the plight of the common man, and with it sympathy.  This would leave them dangerously free to violate the natural rights of the governed, and thereby lose their consent to rule.  He argued that the national government “would be more stable and durable, if it should rest on the solid foundation of the people themselves, than if it should stand merely on the pillars of the Legislatures.”  Later, when Mr. Sherman tried to define the purposes of a national government, Madison added two to his list: “providing more effectually for the security of private rights, and the steady dispensation of Justice.”  The Articles’ failings in these areas more than anything else, he said, had produced this convention.  Those very failings were caused by the interference of the states with the operation of the national government.  He called upon Mr. Sherman’s admission that “faction and oppression would prevail” in a small state and added that it could also happen, although to a lesser degree, in the larger states as well.  In any state where a faction composing a majority of the population could gain control of the legislature, its appointments to Congress would be chosen only from that faction, while all others were ignored; this could lead to laws passed which favored the factions in control and shifted undue burdens onto the unrepresented minorities, such as taxes.  A popular election could preclude this tyranny of the majority by allowing localized factions to elect their own representatives from their own districts, and dividing the House in such a manner that it would be much more difficult for any one faction or small group of factions to control the lawmaking process in its own favor.  Although no plan could be perfect, he believed that minority rights and even-handed justice would be much more secure under this plan than the other.  Mason and Madison eventually won the day, and the popular election of the House was accepted with little further debate.

            Once the question of the House of Representatives was settled, attention turned to the method of electing senators.  It was proposed that members of the Senate be appointed by the state legislatures once again, and this time the measure enjoyed considerably more support.  Roger Sherman, who seconded the motion by John Dickinson, believed that this would provide the necessary interest of the national and state governments in supporting each other.  Mr. Dickinson held that the Senate should be made up of men of strong character and integrity, “distinguished for their rank in life and their weight of property,” “and he thought such characters more likely to be selected by the State Legislatures, than in any other mode.”  It was better, he thought, to have the legislatures pick senators methodically based on their qualifications than to have them elected in what could degrade to little more than a popularity contest.  It seemed to be generally agreed upon that the Senate should have a calmer, more thoughtful atmosphere about it than the House, which it was assumed would be contentious and argumentative.  To achieve this, calmer, more rational men must compose the Senate, who would more likely be chosen by a small body of knowledgeable men with authority than by the people as a whole.  These men, who by virtue of their wealth and status would be better educated than the average person, would be able to make better decisions.  Mr. Dickinson also believed that to leave the state governments out of the national government altogether would amount to the first step toward abolishing them.  He declared that it was better for the states “to be left to move freely in their proper orbits” like planets in a solar system than to have them merge like “13 small streams into one great current pursuing the same course without any opposition whatever.”  Since the people had already been given a voice in the government, the states which they had willingly formed should have one as well, so that “the Citizens of the States would be represented both individually and collectively,” as a Mr. Pierce had stated so well the day before.

            Two other methods of appointing senators had also been put forth: appointment by the House members and appointment by the national executive.  Elbridge Gerry quickly dismissed the first as making the Senate too dependent on the House to serve as a check on it, and the second as a blatant stride toward monarchy.  The other delegates agreed.  Mr. Gerry disagreed with the election of senators by the people on the grounds that “The people have two great interests, the landed interest, and the commercial including the stockholders.”  Because the landed interest composed the majority, the commercial interest would not be secure from encroachment.  Mr. Gerry favored appointment by the states as the method “most likely to provide some check in favor of the commercial interest against the landed.”  He concurred with Mr. Dickinson that the state legislatures “have more sense of character, and will be restrained by that from injustice.”  He saw three main objections to elections by districts, which it was decided should be large to avoid dominating factions.  First, it was “impracticable” in that the voters could not all be brought to the same place for the purpose, and even if they were, “numberless frauds would be unavoidable.”  Second, “Small States forming part of the same district with a large one, or large part of a large one, would have no chance of gaining an appointment for its citizens of merit.”  Finally, “A new source of discord would be opened between different parts of the same district.”  Charles Pinckney supported this third objection, saying that state appointments “would avoid the [rivalries] and discontents incident to the election by districts.”

            The popular election argument was not without its proponents, however, in the debate over Senate elections.  James Wilson was certain that the Senate should draw its power from the same base as the House of Representatives, fearing that “dissensions will naturally arise between them” as a result of resting on different foundations.  He saw no danger of the national government eliminating the states, but rather that the states would usurp the powers of the national government.  While the states’ existence “is made essential by the great extent of our Country,” their orbits in Mr. Dickinson’s analogy should circle the sun as subordinates, but never intersect with it to avoid certain disaster.  There was also no evidence that he could see that the commercial interests would be better protected from the landed majority if senators were chosen by the state legislatures.  “If the Legislatures, as was now complained, sacrificed the commercial to the landed interest, what reason was there to expect such a choice from them as would defeat their own views?”  James Wilson and James Madison both believed that the people, when divided into large districts, “would be most likely to obtain men of intelligence and uprightness” in Mr. Wilson’s words, and that state appointments were therefore not needed to produce the desired political body.  Mr. Madison could not immediately see where state-appointed senators would provide a better check against the House than popularly elected ones.  Complaints of state legislatures undertaking fallacious schemes at the whim of the people, or even without their consent, suggested that senators chosen from among them would be prone to the same tendencies in making national policy.  While these arguments had merit, they failed to convince the other delegates, and the popular election was not adopted.

            The liveliest debates centered around the executive branch.  Gouvernor Morris immediately took up the gauntlet for the election of the president by the people, stating that if he were appointed by the House of Representatives and solely impeachable by them, he would be little more than a puppet of the legislature with no real power.  “If the people should elect, they will never fail to prefer some man of distinguished character, or services; some man... of continental reputation.  If the Legislature elect, it will be the work of intrigue, of cabal, and of faction;... real merit will rarely be the title to the appointment.”  Mr. Morris blasted the idea that the people of the populous states “will combine and elect whom they please.”  The people of those states were too numerous to combine, although their representatives in the legislature were certainly not.  The nation was also too large for all of the people to be led by a few power-hungry schemers.  Only small districts could fall prey to their machinations.  Addressing the multitude’s alleged lack of information, he said, ”It is true they would be uninformed of what passed in the Legislative Conclave, if the election were to be made there; but they will not be uninformed of those great and illustrious characters which have merited their esteem and confidence.”  If a candidate should be known to the members of the legislature, then surely he should be of sufficient notoriety to be known to the public as well.  Mr. Morris also believed that one of the objects of the executive was to protect the people, especially the lower classes, against legislative tyranny by the great and wealthy who would most probably compose that body.  Subjecting the executive to appointment by that same body rendered that end nearly impossible.  Another duty of the president would be to appoint “ministerial officers for the administration of public affairs” and “officers for the dispensation of Justice.”  The public itself would certainly be the best judge of the effectiveness of these public officers and their appointer, as they would be of the quality of the protection of the military, also under the president’s charge.

            James Wilson concentrated his first attack on the accusation that a majority of the people would never agree on a single candidate.  “It might be answered that the concurrence of a majority of people is not a necessary principle of election, nor required as such in any of the States.”  He referred to the example of Massachusetts, where if no majority occurred, the legislature chose among the peoples’ candidates by a majority vote.  “This would restrain the choice to a good nomination at least, and prevent in a great degree intrigue and cabal.”  When George Mason brought up the unstable confidence in the legislature, Mr. Wilson allowed that confidence could be rightfully vested in it when the legislature and their constituents had similar interests, but that this was not the case with the “appointment to great offices.”  Selfish motives would certainly rule the legislators in such instances, and thereby they could not be trusted to make the wisest choice with any regularity.  James Madison lent his support and emphasis to the arguments of Wilson and Morris, but did not offer anything that had not already been voiced.

            Roger Sherman again opened for the opposition.  It was he who proclaimed the peoples’ want of information about the candidates, and their inability to reach a consensus.  “They will generally vote for some man in their own State, and the largest State will have the best chance for the appointment.”  It was more reasonable to require a majority in the legislature.  Charles Pinckney  felt certain that the people were too gullible to see through deceitful campaigns, and that the most populous states could combine in favor of one candidate to promote their own interests.  He pointed out that “The National Legislature being most immediately interested in the laws made by themselves, will be most attentive to the choice of a fit man to carry them properly into execution.”  George Mason was disturbed by the fact that the morals and motives of the national legislature were exalted at some times, and vilified and distrusted at others.  In this admission he appeared to express a desire for a more consistent policy.  A popular election also struck him as impractical, since it would be too difficult for the citizens to judge the intentions of candidates from the far reaches of the nation.  Elbridge Gerry thought that if the state legislatures were to choose senators, then the state executives ought to have a hand in the choosing of the president.  He agreed with Mr. Sherman’s reasons against popular elections and favored an appointment by electors chosen by the state executives.  “The people of the States will then choose the first branch: The legislatures of the States the second branch of the National Legislature, and the Executives of the States, the National Executive.  This he thought would form a strong attachment in the States to the National System.” 

            All of these arguments were made in the first debate over the election of the executive, but no conclusion was reached.  The debate would be resumed two more times, and nearly all of these arguments resurfaced in various forms.  Eventually a middle-ground solution was hammered out in the Electoral College system and adopted.

            Election of the judiciary branch by the people was never seriously considered by any of the delegates.  There was no tradition of electing judges in the colonies or anywhere else to draw guidance from.  The judges were also charged with presiding impartially over the people in courts of law, and would be hard-pressed to do so if subjected to their whim in periodic elections.  Life terms were given to Supreme Court justices to achieve this same independence from the other branches of the national government with rotating membership.  Appointment by the executive was common practice, and since vacancies rarely occurred, the majority of the justices would rarely owe any gratitude to the current executive for their appointments, and their impartiality was thus more certain in cases involving him.

            The answers to the question of which government officials should be chosen by a direct vote of the people are the basis of the system that we live under today.  Some of the situations outlined by the delegates have changed since the time of the Convention, and some of their reasons are no longer as valid as they once were.  The answer to the question with respect to the Senate was changed in the Seventeenth Amendment, and the necessity of the Electoral College is under debate.  Still, the underlying principles they defined remain constant, and the ideals that drove them endure.  No delegate on either side of the debates could have predicted the foresight that they possessed, and as yet, neither can we.

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