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§ 690. THE third section of the first article relates to the organ ization and powers of the Senate.
§ 691. In considering the organization of the Senate, our inquiries naturally lead us to ascertain, first, the nature of the representation and vote of the States therein; secondly, the mode of appointment; thirdly, the number of the senators; fourthly, their term of service; and, fifthly, their qualifications.
§ 692. The first clause of the third section is in the following words: "The Senate of the United States shall be composed of two senators from each State, chosen by the legislature thereof for six years; and each senator shall have one vote."
§ 693. In the first place, the nature of the representation and vote in the Senate. Each State is entitled to two senators; and each senator is entitled to one vote. This, of course, involves in the very constitution of this branch of the legislature a perfect equality among all the States, without any reference to their respective size, population, wealth, or power. In this respect
there is a marked contrast between the Senate and the House of Representatives. In the latter, there is a representation of the people according to the relative population of each State upon a given basis; in the former, each State in its political capacity is represented upon a footing of perfect equality, like a congress of sovereigns or ambassadors, or like an assembly of peers. The only difference between it and the continental congress under the old confederation is, that in this the vote was by States; in the Senate each senator has a single vote. So that, though they represent States, they vote as individuals. The vote of the Senate thus may, and often does, become a mixed vote, embracing a part of the senators from some of the States on one side, and another part on the other.
§ 694. It is obvious that this arrangement could only arise from a compromise between independent States; and it must have been less the result of theory than "of a spirit of amity, and of
mutual deference and concession, which the peculiarity of the situation of the United States rendered indispensable."1 It constituted one of the great struggles between the large and the small States, which was constantly renewed in the convention, and impeded it in every step of its progress in the formation of the Constitution.2 The struggle applied to the organization of each branch of the legislature. The small States insisted upon an equality of vote and representation in each branch; and the large States upon a vote in proportion to their relative importance and population. Upon this vital question there was so near a balance of the States that a Union in any form of government which provided either for a perfect equality or inequality of the States in both branches of the legislature became utterly hopeless. If the basis of the Senate was an equality of representation, the basis of the House must be in proportion to the relative population of the States. A compromise was, therefore, indispensable, or the convention must be dissolved. The small States at length yielded the point as to an equality of representation in the House, and acceded to a representation proportionate to the federal numbers. But they insisted upon an equality in the Senate. To this the large States were unwilling to assent; and for a time the States were, on this point, equally divided.5 Finally, the subject was referred to a committee, who reported a scheme which became, with some amendments, the basis of the representation as it now stands."
§ 695. The reasoning by which each party in the convention supported its own project naturally grew out of the relative situation and interests of their respective States. On the side of the small States it was urged that the general government ought to be partly federal and partly national, in order to secure a just balance of power and sovereignty and influence among the States. This is the only means to preserve small communities, when associating with larger, from being overwhelmed and anni
1 Letter of the Convention, 17th of Sept. 1787; 1 Kent, Comm. § 11, p. 210, 211. 2 2 Pitkin's Hist. 233, 245, 247, 248; Yates's Minutes, 4 Elliot's Debates, 68, 74, 75, 81, 89, 90, 91, 92; Id. 99, 100, 101; Id. 107, 108, 112 to 124; Id. 125, 126, 127; 1 Elliot's Debates, 66.
3 2 Pitkin's Hist. 233, 245; Journal of the Convention, 112.
4 On this subject see the Journal of the Convention, 111, 112, 153 to 158, 162, 178, 180, 235, 236, 237, 238; Yates's Minutes, 4 Elliot's Debates, from 68 to 127.
5 2 Pitkin's Hist. 245; Journal of Convention, 2d July, p. 156, 158; Id. 162, 175, 178, 180, 211; Yates's Minutes, 4 Elliot's Debates, 124 to 127; 2 Amer. Museum, 379. 6 1 Elliot's Debates, 67; Journal of Convention, 157.
hilated. The large States, under other circumstances, would naturally pursue their own interests, and by combinations usurp the prerogatives, or disregard the rights, of the smaller. Hitherto all the States had held a footing of equality; and no one would now be willing to surrender it. The course now proposed would allay jealousies and produce tranquillity. Any other would only perpetuate discontents and lead to disunion. There never was a confederacy formed where an equality of voice was not a fundamental principle. It would be a novel thing in politics, in such cases, to permit the few to control the many. The large States, upon the present plan, have a full security. The small States must possess the power of self-defence, or they are ruined.
§ 696. On the other hand, it was urged that to give an equality of vote to all the States was adopting a principle of gross injustice and inequality. It is not true that all confederacies have been founded upon the principle of equality. It was not so in the Lycian confederacy. Experience has shown that the old confederation is radically defective, and a national government is indispensable. The present plan will defeat that object. Suppose the first branch grants money; the other branch (the Senate) might, from mere State views, counteract it. In Congress, the single State of Delaware prevented an embargo at the time when all the other States thought it absolutely necessary for the support of the army. In short, the Senate will have the power by its negative of defeating all laws. If this plan prevails, seven States will control the whole; and yet these seven States are, in point of population and strength, less than one third of the Union. So that two thirds are compellable to yield to one third. There is no danger to the small States from the combination of the large ones. A rivalry, rather than a confederacy, will exist among them. There can be no monarchy; and an aristocracy is more likely to arise from a combination of the small States. There are two kinds of bad governments; the one which does too much, and is therefore oppressive, and the other which does too little, and is therefore weak. The present plan will fasten the latter upon the country. The only reasonable principle on which to found a general government is, that the decision shall be by a majority of members, and not of States. No advantage can possibly be proposed by the large States by swallowing up the smaller. The like fear existed in Scotland at the time of the union with England; but it has turned
out to be wholly without foundation. Upon the present plan, the smaller States may swallow up the larger. It was added by one most distinguished statesman,1 (what has hitherto proved prophetically too true,) that the danger was not between the small and the large States. "The great danger to our general government is, the great southern and northern interests of this continent being opposed to each other. Look to the votes in Congress, and most of them stand divided by the geography of the country, not according to the size of the States." 2
§ 697. Whatever may now be thought of the reasoning of the contending parties, no person who possesses a sincere love of country, and wishes for the permanent union of the States, can doubt that the compromise actually made was well founded in policy, and may now be fully vindicated upon the highest principles of political wisdom, and the true nature of the government which was intended to be established.
§ 698. It may not be unprofitable to review a few of the grounds upon which this opinion is hazarded. In the first place, the very structure of the general government contemplated one partly federal and partly national. It not only recognized the existence of the State governments, but perpetuated them, leaving them in the enjoyment of a large portion of the rights of sovereignty, and giving to the general government a few powers, and those only which were necessary for national purposes. The general government was, therefore, upon the acknowledged basis, one of limited and circumscribed powers; the States were to possess the residuary powers. Admitting, then, that it is right, among a people thoroughly incorporated into one nation, that every district of territory ought to have a proportional share of the govern
ent; and that among independent States, bound together by a simple league, there ought, on the other hand, to be an equal share in the common councils, whatever might be their relative size or strength, (both of which propositions are not easily controverted,) it would follow that a compound republic, partaking of the character of each, ought to be founded on a mixture of pro
1 Mr. Madison. [See also Life and Writings of James Iredell, II. 258, 285.]
2 This summary is abstracted principally from Yates's Minutes of the Debates, and Luther Martin's Letter and Speech, January 27, 1788. See Martin's Letter in 4 Elliot's Debates, 1 to 55. See Yates's Minutes in 4 Elliot's Debates, 68; Id. 74, 75, 81, 89 to 92, 99 to 102, 107, 108, 112 to 127; 2 Pitkin's Hist. 233 to 248. See also The Federalist, No. 22.
portional and of equal representation.1 The legislative power being that which is predominant in all governments ought to be, above all, of this character; because there can be no security for the general government or the State governments, without an adequate representation, and an adequate check of each in the functions of legislation. Whatever basis, therefore, is assumed for one branch of the legislature, the antagonist basis should be assumed for the other. If the House is to be proportional to the relative size and wealth and population of the States, the Senate should be fixed upon an absolute equality as the representative of State sovereignty. There is so much reason and justice and security in such a course, that it can with difficulty be overlooked by those who sincerely consult the public good, without being biassed by the interests or prejudices of their peculiar local position. The equal vote allowed in the Senate is, in this view, at once a constitutional recognition of the sovereignty remaining in the States and an instrument for the preservation of it. It guards them against (what they meant to resist, as improper) a consolidation of the States into one simple republic; and, on the other hand, the weight of the other branch counterbalances an undue preponderance of State interests, tending to disunion.
§ 699. Another and most important advantage arising from this ingredient is the great difference which it creates in the elements of the two branches of the legislature, which constitutes a great desideratum in every practical division of the legislative power.3 In fact, this division (as has been already intimated) is of little or no intrinsic value, unless it is so organized that each can operate as a real check upon undue and rash legislation. If each branch is substantially framed upon the same plan, the advantages of the division are shadowy and imaginative; the visions and speculations of the brain, and not the waking thoughts of statesmen or patriots. It may be safely asserted that, for all the purposes of liberty, and security, of stable laws and of solid institutions, of personal rights, and of the protection of property, a single branch is quite as good as two, if their composition is the same and their spirits and impulses the same. Each will act as the other does;
1 The Federalist, No. 62; 2 Amer. Museum, 376, 379.
2 The Federalist, No. 62; Rawle on Constit. 36, 37; 1 Kent, Comm. Lect. 11, p. 210, 211; 2 Amer. Museum, 376, 379; 1 Tucker's Black. Comm. App. 195.
8 2 Wilson's Law Lect. 146, 147, 148.