This page is no longer active

Da Blog has moved to Please update your bookmarks, links, and RSS readers.

Saturday, May 29, 2010

The Real Constitution: Article I, Section II (Structure of the House)

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
Under the Articles of Confederation, members of Congress were picked by state legislatures. When Edmund Randolph moved, as part of his original Virginia Plan, "that the members of the first branch of the National Legislature ought to be elected by the people of the several States", it touched off a firestorm among the more aristocratic members of the room. All words are Madison's: Roger Sherman: "The people...immediately should have as little to do as may be about the Government. They want information and are constantly liable to be misled." Elbridge Gerry: "The evils we experience flow from the excess of democracy. The people do not want virtue, but are the dupes of pretended patriots. In Massts. it had been fully confirmed by experience that they are 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." (It was in Massachusetts that Shays' Rebellion took place.)

George Mason provided the first coherent defense of the direct election of Representatives:
It was to be the grand depository of the democratic principle of the Govtt. It was, so to speak, to be our House of Commons-It ought to know & sympathise with every part of the community; and ought therefore to be taken not only from different parts of the whole republic, but also from different districts of the larger members of it, which had in several instances particularly in Virga., different interests and views arising from difference of produce, of habits &c &c. He admitted that we had been too democratic but was afraid we sd. incautiously run into the opposite extreme. We ought to attend to the rights of every class of the people.
"He had often wondered at the indifference of the superior classes of society to this dictate of humanity & policy," Madison continued, considering that in a few generations, given the economy of the day, some of their descendents would almost certainly join the lower classes, so "every selfish motive...every family attachment, ought to recommend such a system of policy as would provide no less carefully for the rights and happiness of the lowest than of the highest orders of Citizens." Mason was no poor man; he was a slaveowner born on a Virginia plantation, and arguably was far less of a self-made man than Sherman, whose "education did not extend beyond his father's library and grammar school and his early career was spent as a shoe designer" according to Wikipedia. But Sherman and Gerry were New Englanders intimately familiar with Shays' Rebellion, and the others that defended popular election of representatives were not.

Pennsylvania's James Wilson concurred that "no government could long subsist without the confidence of the people" (echoing the Declaration of Independence's "consent of the governed" clause) and "in a republican Government this confidence was peculiarly essential.
He also thought it wrong to increase the weight of the State Legislatures by making them the electors of the national Legislature. All interference between the general and local Governmts. should be obviated as much as possible. On examination it would be found that the opposition of States to federal measures had proceded much more from the officers of the States, than from the people at large.
Madison himself sided with Mason and Wilson, seeing popular election of Representatives as "essential to every plan of free Government". Some states, he noted, did not even have popular election of their upper houses; if the lower house were to be elected by state legislatures, the upper by the lower, the executive by the two together, and other offices by the executive, "the people would be lost sight of altogether; and the necessary sympathy between them and their rulers and officers, too little felt." Madison was okay with imposing "successive filtrations" as long as they didn't apply to the lower house, and felt that "the great fabric to be raised 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."

Gerry rebutted that the comparison with the House of Commons was fallacious and "that the State legislatures drawn immediately from the people did not always possess their confidence." He would be okay with direct election of representatives "if it were so qualified that men of honor & character might not be unwilling to be joined in the appointments." Madison thought Gerry supported a system where the people would only nominate some candidates for the legislatures to elect - a primary without a general election. When the general motion came to a vote, only New Jersey and South Carolina outright dissented.

In considering the "small state-big state" debate that broke out regarding representation in the new Congress, understand that before the Convention, the United States was much more like the European Union than it is today. To understand the change being considered, imagine if the UN voted by majority vote instead of consensus, and decided tomorrow that instead of giving each nation one vote, each nation would have a number of votes proportional to their population. A state like, say, New York really was a state, in the traditional sense as the government of a nation, rather than what it's become today, what most countries would call a "province". There might never be a conflict explicitly between the interests of "large states" as a group and "small states" as a group, but the individual small states certainly didn't want to see their power reduced more than their larger brethren, as one might reasonably expect them to.

Randolph proposed replacing the "one state one vote" principle of the Articles of Confederation with a system of proportional voting power to either the free population or the "Quotas of contribution" (tax revenue). Madison wanted to reject the "number of free inhabitants" approach out of hand, not because it was a bad idea per se, but because it "might occasion debates which would divert the Committee from the general question whether the principle of representation should be changed". Rufus King pointed out that the government might collect taxes in such a way that determining which state contributed how much might be impossible, Madison agreed, and the question was postponed on that first day of debating Randolph's scheme. The room wasn't yet ready to open the slavery debate.

Since one approach wasn't going to work and the other was going to touch off a firestorm in the specifics, Madison moved "that the equality of suffrage established by the articles of Confederation ought not to prevail in the national Legislature, and that an equitable ratio of representation ought to be substituted." Madison observed that, being "generally relished, [the motion] would have been agreed to" before Delaware, whose deputies had been forbidden from changing the equality of representation between the states in Congress, threatened to leave the Convention.

Madison pointed out "that whatever reason might have existed for the equality of suffrage when the Union was a federal one among sovereign States, it must cease when a national Govermt. should be put into the place." The state legislatures were most important under the Confederation; it made sense that they be treated as equals. With a new, supreme, national government in the works, it made more sense for the population of the entire nation to be represented more or less equitably. Still, the matter remained postponed after that first day, and Madison believed the room was confident that "the proposed change of representation would certainly be agreed to, no objection or difficulty being started from any other quarter than from Delaware."

Thursday, May 27, 2010

The Real Constitution: Article I, Section I (Creation of Congress)

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
The very first order of business of the Constitutional Convention, after procedural matters such as electing George Washington its president and passing rules to govern the proceedings, was a speech by Edmund Randolph in which he proposed what came to be known as the Virginia Plan.

The Articles of Confederation had allocated one vote to each state in a single house of Congress. The Virginia Plan created a two-house legislature, the lower house to be elected by the people and the upper house to be elected by the lower house from a pool of people nominated by state legislatures. The two-house Congress would have power to "legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation", veto laws passed by individual states they deemed to contradict the Constitution (referred to as the "articles of Union"), and use force against any state they deemed to be "failing to fulfill its duty under the [Constitution]". An executive would be chosen by the legislature, who - besides normal executive duties - would, along with "a convenient number" of the "National Judiciary... compose a Council of revision" that would review every national law and every vetoed state law, with their own veto power that could be overridden. So powerful was this plan that the following day, Charles Pinckney of South Carolina asked whether Randolph wanted to completely abolish the state governments.

The two-branch structure of Congress would be agreed to without a peep except from Pennsylvania, which Madison attributed to Benjamin Franklin "who was understood to be partial to a single House of Legislation."