Our Constitution was not a proclamation written by a convention. It was a negotiated contract for uniting thirteen sovereign independent states. Nothing like that had ever been done voluntarily, and few nations have matched it in two hundred years, even with the use of force.
Westphalia: Church Politics Adjusts Boundaries, Then Everything Changes
In 1648, the Treaty of Westphalia created the modern nation-state.
Because it was widely expected a new Constitution would devise some kind of republic, the convention in Philadelphia began serious deliberations with how the people might choose their representatives in Congress. Congressmen were mostly selected by State Legislatures under the Articles of Confederation, but there was widespread dissatisfaction with State Legislatures. The voting inclinations of chosen congressmen would undoubtedly reflect how they had been chosen, in a two-step process. If the voting franchise is only given to college graduates, congressmen, for the most part, would predictably be college graduates. If women got the vote, in time many members of Congress would be women. And if poor people got the vote, they would surely outnumber rich people, and might even elect representatives who would seize money from the rich to redistribute to the poor. The experience of Fort Wilson eight years earlier was not only on some minds, but several of the former combatants were sitting in Independence Hall as Delegates, three blocks away. Although the amount owed in debt was the same as the amount loaned, the number of individual debtors greatly exceeded the number of individual lenders, Consequently, the debtors might easily confiscate or injure lenders unjustly. That result had taken the form of ruinous paper money inflation in the recent past and was one of the main reasons the Constitutional Convention seemed necessary. Delegates soon took care that when the issue of state powers came up, states were prohibited from issuing paper money, or taking comparable actions like dishonoring debts. Such rules would at least concentrate the power to create inflation into a single body, the national congress. Meanwhile, the voting franchise would be limited to non-slave male citizens who owned property, to exclude recent immigrants who would probably be mostly poor, as well as carpet-baggers who might be imported by the boatload by some foreign power. Meanwhile, amendments to the Constitution must be made difficult to achieve, partly as a symbol that agreements freely made, must be kept. Parenthetically, there have been only two dozen amendments in two hundred years, a majority of which concern expanding the voting franchise, so the Constitutional Framers accurately assessed the difficulty they created. Unfortunately, the most questionable action they took was to award 3/5 of a vote to slaves, which obviously transferred that voting power to their owners. It may be too much to blame the Civil War on this Constitutional provision, but it certainly warped the direction of affairs leading to the war. Although this provision is difficult to justify in retrospect, it reflected an underlying understanding that Delegates were unlikely to vote for measures which injured the interests of substantial numbers of their members, except for binding concessions in return. This slavery provision was the result of a grand three-way compromise, all of whose provisions make historians squirm, but acknowledge that no Constitution would have emerged from the convention without substantial resolution of the various gridlocks. James Madison drove the convention to revolve around the central principle of compromise, which always seems to be necessary for the democratic process, and always somewhat taints it.
In settling the nettlesome issues of the voting franchise, the delegates proceeded to the principle of proportionality. The assumption was that uniform rules of voter franchise would lead to uniformity among all the states, a concept hard to reconcile with States Rights, and particularly hard to reconcile with slavery. If a state had more voters with the stated qualifications for franchise, of course, that state got more congressmen. Or is that necessarily so? Because Virginia had called for the convention, provided the presiding officer in the form of George Washington and the leading scholar of government in James Madison, and most of all because Virginia was the most populous and richest state, Virginia was oblivious to any way of organizing a republican congress except strict proportionality. But John Dickinson of Delaware, the smallest state of all, proceeded to teach Virginia a lesson. Dickinson had been the penman of the Articles of Confederation, was probably the best-educated lawyer in America, and a serious thinker about representative government. He had been Governor of both Pennsylvania and Delaware, probably had a major hand in the separation of the two states, and was a man of substantial wealth and fame. Dickinson is said to have drawn Madison aside and made a strikingly incisive analysis of national mergers, possibly entirely original with himself. If thirteen states are merged, some will be larger than others. Therefore, as long as the biggest remains the biggest, it will have the most votes in Congress. A lawyer of his experience would know that a political component with the most votes will relentlessly seek to warp the laws in its own favor, and will believe that to be an entirely natural thing to do. But the consequence of this situation will be that the smaller states will be perpetually consigned to a fate of seeing the rules warped against them. That's neither fair nor reasonable, and Dickinson wouldn't have it. So, unfortunately, it would be necessary for him to gather the nine votes in the convention (the delegates voted by states, one vote per state) from small states, and defeat the three large states (Virginia, Pennsylvania, Massachusetts) on this particular point: Do you want a Constitution or not? We are told that Madison, who had won almost every vote up to this time, began to lose every vote afterward. This man Dickinson meant what he said, and it became evident that another compromise was going to be necessary. That should please Madison, the great advocate of compromise. We are told that the necessary compromise was here suggested by Benjamin Franklin in a taproom. There would be two houses of Congress, a House of Representatives and a Senate, and legislation would require the approval of both. The House of Representatives would elect members proportional to population, thus favoring big states with big cities, and the Senate would receive two votes per state, regardless of size, thus favoring small states with sparse rural populations. Because it was going to be necessary for the Constitution to seek ratification by the states, the Senators would be appointed by the states, usually the state legislature. This second great compromise has received great acclaim, both for its success and for its ingenuity. Unfortunately, it has two ominous flaws, just beginning to emerge after two centuries.
In the first place, populations grow and shift with time, making equitable bargains lose their fairness. Virginia is now far from the largest state and may come to regret its bargain made under other circumstances. And we have fifty states, not thirteen; most of the newer ones are far larger geographically than the original ones. In time, some or many of the new states may develop large populations as California has done. Hawaii, The Philippines, Puerto Rico, and unknown others might, however, skew the numbers toward smaller states. Since the electoral college is tied to the sum of the two houses of Congress, unexpected results are a possibility. Because the House of Representatives was frozen to 534 members in 1925, the degree to which two votes per state will compensate for proportionality is quite uncertain in the future. Because of our national tendency to wait for something bad to happen before we act to correct a flaw, it seems likely that something disruptive will occur before we consult with mathematicians to devise a floating relationship between the two methods of congressional selection. Meanwhile, it seems like a good topic for dissertations.
The second flaw in the system also arises out of population growth. On the only occasion when George Washington stepped down from the podium to debate a point, he did so to urge that no congressman should represent more than 30,000 constituents. At present, the average congressman represents 600,000 constituents, and the number is constantly growing. Long ago, the House of Representatives recognized that their size was beginning to interfere with the ability to deliberate. Even now, the number of congressmen has grown to a size where crowd management techniques have been applied to member disadvantage, and by their own elected leaders. Since the unfortunate manipulation of members, especially new members, was begun by Henry Clay and Martin VanBuren, it has many more causes than member overcrowding. [For example, the Rules Committee controls the agenda, and the Speaker controls the Rules Committee. Henry Clay's politicization of the Speakership is an offense to the Constitution.] But overcrowding is certainly now at a practical limit, while representation is twenty times more dilute than the Father of our Country thought was wise. Once more, something disastrous will probably have to occur before this situation is addressed by its present beneficiaries, but at least a few scholars should start thinking about it. One suggestion would be to elect sub-congressmen at a ratio of twenty to each of the 534, with assignments to them of duties now performed by Congressional staff.
Finally, it is inadequately perceived that the accumulation of compromises between the interests of the different states, inexorably led to creating the Electoral College, for which there is no visible substitute. It does not mandate casting a winner-takes-all vote of its College Members, but it might as well because it effectively limits one state's maximum voice to the agreed number under a winner-take-all system. Here is reflected the fact that the Constitution is a bargain between the states, almost all of whom achieved some questionable advantages for themselves. But having established a working balance of such advantages, no state is able to discover some new loophole and increase its voting powers with it. Far from being a quaint anachronism, the Electoral College is a keystone which assures that any state which tries to unbalance it, will be confronted by a substantial number of states with something to lose.
Originally published: Thursday, October 18, 2012; most-recently modified: Tuesday, May 14, 2019