Debates on the Legislative Branch

What arguments were made on behalf of indirect election of U.S. senators by state legislatures? Are those arguments sound? How did delegates such as James Wilson and James Madison respond to these arguments, and what does their response reveal about their view of republican government? What were the arguments for and against annual elections for legislators? Would you prefer annual elections for Congress today? 
How do the arguments of delegates such as Elbridge Gerry and Roger Sherman, on the need for shorter term lengths and rotation in office, foreshadow the views of the Anti-Federalists such as Cato, Federal Farmer, and Brutus (Cato No. 5, Federal Farmer No. 7, and Federal Farmer, No. 11)? Why did delegates at the Convention refuse to give the power to declare war to the president, and did later Congresses follow their example (Debate on the Constitutionality of the Mexican War and Debate to Override President Richard Nixon’s Veto of the War Powers Resolution)?  

The Constitutional Convention was held in Philadelphia in the summer of 1787, from May 25 to September 17 (celebrated today as “Constitution Day”). Delegates from twelve of the thirteen original states (Rhode Island refused to participate) deliberated throughout the summer on numerous controversies surrounding the creation of the new national government.

These selections contain the Convention’s discussions on the direct election of members of the House of Representatives and Congress’s power to declare war. In these discussions, the delegates debated the nature of a republican government, the proper relationship of representatives to the people, and the extent of control Congress ought to have over foreign relations and military affairs. The themes that emerged in these discussions bear a striking resemblance to today’s discussions about the way Congress should respond to public opinion, and the debates over Congress’s power over foreign affairs indicate the Framers’ intention regarding the division of authority between Congress and the president in this area.

—Joseph Postell

Source: Gordon Lloyd, ed., Debates in the Federal Convention of 1787 by James Madison, a Member (Ashland, Ohio: Ashbrook Center, 2014).

June 6, 1787

. . . Mr. PINCKNEY[1]. . . moved “that the first branch of the National Legislature be elected by the state legislatures, and not by the people”; contending that the people were less fit judges in such a case, and that the Legislatures would be less likely to promote the adoption of the new government if they were to be excluded from all share in it.

Mr. GERRY.[2] Much depends on the mode of election. In England the people will probably lose their liberty from the smallness of the proportion having a right of suffrage. Our danger arises from the opposite extreme. Hence in Massachusetts the worst men get into the Legislature. . . . It was necessary, on the one hand, that the people should appoint one branch of the government, in order to inspire them with the necessary confidence; but he wished the election, on the other, to be so modified as to secure more effectually a just preference of merit. His idea was, that the people should nominate certain persons, in certain districts, out of whom the state legislatures should make the appointment.

Mr. WILSON.[3] He wished for vigor in the government, but he wished that vigorous authority to flow immediately from the legitimate source of all authority. The government ought to possess, not only, first, the force, but second, the mind or sense, of the people at large. The Legislature ought to be the most exact transcript of the whole society. Representation is made necessary only because it is impossible for the people to act collectively. . . . There is no danger of improper elections, if made by large districts. Bad elections proceed from the smallness of the districts, which give an opportunity to bad men to intrigue themselves into office.

Col. MASON.[4] Under the existing Confederacy, Congress represent the states, and not the people of the states; their acts operate on the states, not on the individuals. The case will be changed in the new plan of government. The people will be represented; they ought therefore to choose the representatives. The requisites in actual representation are that the representatives should sympathize with their constituents; should think as they think, and feel as they feel; and that for these purposes they should be residents among them. Much, he said, had been alleged against democratic elections. He admitted that much might be said; but it was to be considered that no government was free from imperfections and evils; and that improper elections in many instances were inseparable from republican governments. . . .

On the question for electing the first branch by the state legislatures as moved by Mr. PINCKNEY, it was negatived,—Connecticut, New Jersey, South Carolina, aye—3; Massachusetts, New York, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, Georgia, no—8. . . .

June 21, 1787

[Direct election of the members of the House of Representatives considered]

General PINKNEY moved “that the 1st. branch, instead of being elected by the people, should be elected in such manner as the Legislature of each state should direct.” He urged first, that this liberty would give more satisfaction, as the Legislatures could then accommodate the mode to the convenience and opinions of the people. Secondly, that it would avoid the undue influence of large counties which would prevail if the elections were to be made in districts as must be the mode intended by the report of the committee.[5] Thirdly, that otherwise disputed elections must be referred to the General Legislature which would be attended with intolerable expense and trouble to the distant parts of the republic.

Col. HAMILTON[6] considered the motion as intended manifestly to transfer the election from the people to the state legislatures, which would essentially vitiate the plan. It would increase that state influence which could not be too watchfully guarded against. All too must admit the possibility, in case the general government should maintain itself, that the state governments might gradually dwindle into nothing. The system therefore should not be engrafted on what might possibly fail.

Mr. MASON urged the necessity of retaining the election by the people. Whatever inconvenience may attend the democratic principle, it must actuate one part of the It is the only security for the rights of the people.

Mr. SHERMAN,[7] would like an election by the Legislatures best, but is content with [the] plan as it stands.

Mr. RUTLEDGE[8] could not admit the solidity of the distinction between a mediate and immediate election by the people. It was the same thing to act by oneself, and to act by another. An election by the Legislature would be more refined than an election immediately by the people: and would be more likely to correspond with the sense of the whole community. If this Convention had been chosen by the people in districts it is not to be supposed that such proper characters would have been preferred. The delegates to Congress he thought had also been fitter men than would have been appointed by the people at large.

Mr. WILSON considered the election of the 1st branch by the people not only as the cornerstone, but as the foundation of the fabric: and that the difference between a mediate and immediate election was immense. The difference was particularly worthy of notice in this respect: that the Legislatures are actuated not merely by the sentiment of the people; but have an official sentiment opposed to that of the general government and perhaps to that of the people themselves.

Mr. KING[9] enlarged on the same distinction. He supposed the Legislatures would constantly choose men subservient to their own views as contrasted to the general interest; and that they might even devise modes of election that wd. be subversive of the end in view. He remarked several instances in which the views of a state might be at variance with those of the general government: and mentioned particularly a competition between the national and state debts, for the most certain and productive funds.

General PINKNEY was for making the state government a part of the general system. If they were to be abolished, or lose their agency, South Carolina and other states would have but a small share of the benefits of government.

On the question for Gen. Pinkney motion to substitute election of [the] 1st branch in such mode as the Legislatures should appoint, instead of its being elected by the people.”

Mass. no. Conn. ay. N. Y. no. N. J. ay. Pa. no. Del. ay. Md. divd. Va. no. N. C. no. S. C. ay Geo. no. [Motion fails, 4–6]

General PINKNEY then moved that the 1st branch be elected by the people in such mode as the Legislatures should direct; but waved it on its being hinted that such a provision might be more properly tried in the detail of the plan.

On the question for ye. election of the 1st. branch by the people.

Mass. ay. Conn. ay. N. Y. ay. N. J. no. Pa. ay. Del. ay. Md. divd. Va. ay. N. C. ay. S. C. ay Geo. ay. [Motion passes, 9––1]

Election of the 1st. branch “for the term of three years,” considered

Mr. RANDOLPH[10] moved to strike out, “three years” and insert “two years”—he was sensible that annual elections were a source of great mischiefs in the states, yet it was the want of such checks against the popular intemperance as were now proposed, that rendered them so mischievous. He would have preferred annual to biennial, but for the extent of the U.S. and the inconvenience which would result from them to the representatives of the extreme parts of the empire. The people were attached to frequency of elections. All the constitutions of the states except that of South Carolina, had established annual elections.

Mr. DICKINSON.[11] The idea of annual elections was borrowed from the ancient usage of England, a country much less extensive than ours. He supposed biennial would be inconvenient. He preferred triennial: and in order to prevent the inconvenience of an entire change of the whole number at the same moment, suggested a rotation, by an annual election of one third.[12]

Mr. ELSEWORTH[13] was opposed to three years, supposing that even one year was preferable to two years. The people were fond of frequent elections and might be safely indulged in one branch of the Legislature. He moved for one year.

Mr. WILSON being for making the 1st branch an effectual representation of the people at large, preferred an annual election of it. This frequency was most familiar and pleasing to the people. It would not be more inconvenient to them, than triennial elections, as the people in all the states have annual meetings with which the election of the national representatives might be made to coincide. He did not conceive that it would be necessary for the National Legislature to sit constantly; perhaps not half-perhaps not one fourth of the year.

Mr. MADISON[14] was persuaded that annual elections would be extremely inconvenient and apprehensive that biennial would be too much so: he did not mean inconvenient to the electors; but to the representatives. They would have to travel seven or eight hundred miles from the distant parts of the Union; and would probably not be allowed even a reimbursement of their expenses. Besides, none of those who wished to be re-elected would remain at the seat of government; confiding that their absence would not affect them. The members of Congress had done this with few instances of disappointment. But as the choice was here to be made by the people themselves who would be much less complaisant to individuals, and much more susceptible of impressions from the presence of a rival candidate, it must be supposed that the members from the most distant states would travel backwards and forwards at least as often as the elections should be repeated. Much was to be said also on the time requisite for new members who would always form a large proportion, to acquire that knowledge of the affairs of the states in general without which their trust could not be usefully discharged.

Mr. SHERMAN preferred annual elections, but would be content with biennial. He thought the representatives ought to return home and mix with the people. By remaining at the seat of government they would acquire the habits of the place which might differ from those of their constituents.

Col. MASON observed that the states being differently situated such a rule ought to be formed as would put them as nearly as possible on a level. If elections were annual the middle states would have a great advantage over the extreme ones. He wished them to be biennial; and the rather as in that case they would coincide with the periodical elections of South Carolina as well of the other states.

Col. HAMILTON urged the necessity of three years. There ought to be neither too much nor too little dependence, on the popular sentiments. The checks in the other branches of government would be but feeble, and would need every auxiliary principle that could be interwoven. The British House of Commons were elected septennially, yet the democratic spirit of [its] Constitution had not ceased. Frequency of elections tended to make the people listless to them; and to facilitate the success of little cabals.[15] This evil was complained of in all the states. In Virginia it had been lately found necessary to force the attendance and voting of the people by severe regulations.

On the question for striking out “three years”

Mass. ay. Conn. ay. N. Y. no. N. J. divd. Pa. ay. Del. no. Md. no. Va. ay. N. C. ay. S. C. ay. Geo. ay. [Motion passes, 7–3]

August 17, 1787

Consideration of the clause granting Congress the power “To make war”

Mr. PINKNEY opposed the vesting this power in the Legislature. Its proceedings were too slow. It would meet but once a year. The House of Representatives would be too numerous for such deliberations. The Senate would be the best depositary, being more acquainted with foreign affairs, and most capable of proper resolutions. If the states are equally represented in [the] Senate, so as to give no advantage to [the] large states, the power will notwithstanding be safe, as the small have their all at stake in such cases as well as the large states. It would be singular for one authority to make war, and another peace.

Mr. BUTLER.[16] The objections against the Legislature lie in [a] great degree against the Senate. He was for vesting the power in the president, who will have all the requisite qualities, and will not make war but when the nation will support it.

Mr. MADISON and Mr. GERRY moved to insert “declare,” striking out “make” war; leaving to the Executive the power to repel sudden attacks.

Mr. SHERMAN thought it stood very well. The Executive should be able to repel and not to commence war. “Make” [is] better than “declare” the latter narrowing the power too much.

Mr. GERRY[17] never expected to hear in a republic a motion to empower the Executive alone to declare war.

Mr. ELSWORTH. there is a material difference between the cases of making war and making peace. It should be more easy to get out of war, than into it. War also is a simple and overt declaration. Peace attended with intricate and secret negotiations.

Mr. MASON was against giving the power of war to the Executive, because not safely to be trusted with it; or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war; but for facilitating peace. He preferred “declare” to “make.”

On the motion to insert declare-in place of make, it was agreed to. N. H. no. Mass. abst. Conn. no. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. ay. S. C. ay. Geo. ay. [Motion passes, 8–1]

Mr. PINKNEY’S motion to strike out [the] whole clause, disagreed to without call of states.

Mr. BUTLER moved to give the Legislature [the] power of peace, as they were to have that of war.

Mr. GERRY 2ds. him. 8 Senators may possibly exercise the power if vested in that body, and 14 if all should be present; and may consequently give up part of the United States. The Senate are more liable to be corrupted by an Enemy than the whole Legislature.

On the motion for adding “and peace” after “war” N. H. no. Mass. no. Conn. no. Pa. no. Del. no. Md. no. Va. no. N. C. no S. C. no. Geo. no. [Motion fails unanimously.]

  1. 1. Charles Cotesworth Pinckney (1746–1825) was a delegate from the state of South Carolina who was educated at Oxford and who was one of the leading members of the Convention. After the Constitution was ratified, he became a prominent member of the Federalist Party, serving as its nominee for president in 1804 and 1808.
  2. 2. Elbridge Gerry (1744–1814) was a Massachusetts delegate who resisted the efforts of the nationalists and refused to sign the Constitution. He served as a member of the House of Representatives and as James Madison’s vice president. The “Gerrymander” derives its name from him.
  3. 3. James Wilson (1742–1798) was a Pennsylvania delegate whose influence at the Convention was second only to James Madison’s. He was an ardent nationalist who supported popular election of both houses of Congress. After ratification, he served as associate justice of the Supreme Court.
  4. 4. George Mason (1725–1792) was a prominent member of the Constitutional Convention from Virginia. He refused to sign the Constitution and opposed its ratification in Virginia.
  5. 5. Pinckney refers to the Committee of Detail, which wrote an early draft of the Constitution proposing direct election of members of the House, the provision under consideration here.
  6. 6. Alexander Hamilton (1757–1804) was a delegate from New York and one of the leading advocates of strengthening the national government. With James Madison and John Jay, he co-authored The Federalist Papers defending the Constitution. He served as America’s first secretary of the treasury.
  7. 7. Roger Sherman (1721–1793) was a delegate from Connecticut who was influential in passing the Connecticut Compromise, which set up proportional representation in the House of Representatives and equality of representation for each state in the Senate.
  8. 8. John Rutledge (1739–1800) was a delegate from South Carolina who supported ratification of the Constitution. He served as associate justice of the Supreme Court after ratification.
  9. 9. Rufus King (1755–1827) was a delegate from Massachusetts who was educated at Harvard and who supported a stronger national government. After ratification, he was a Federalist who served in the Senate and as the Federalist Party’s presidential candidate in 1816.
  10. 10. Edmund Randolph (1753–1813) was a Virginia delegate who introduced the Virginia Plan at the beginning of the Constitutional Convention. He refused to sign the Constitution but was persuaded to support it at the Virginia ratification convention. He served as the first attorney general of the United States and as secretary of state after Thomas Jefferson resigned.
  11. 11. John Dickinson (1732–1808) was a delegate from Delaware who was famous for his “Letters from a Farmer in Pennsylvania,” which criticized the British Parliament for taxing the American colonies without granting representation.
  12. 12. Dickinson’s proposal for “a rotation, by an annual election of one third” of members of the House, did not gain traction, but it was adopted for election of U.S. senators.
  13. 13. Oliver Ellsworth (1745–1807) was a Connecticut delegate who introduced the Connecticut Compromise. He defended ratification of the Constitution and served as Connecticut’s first senator, and then as chief justice of the Supreme Court.
  14. 14. James Madison (1751–1836) from Virginia is widely known as the “Father of the Constitution” due to his contributions at the Convention. He co-authored The Federalist Papers with Alexander Hamilton, and served as member of the House of Representatives, secretary of state, and the fourth president of the United States.
  15. 15. A “cabal” is a small, often secret faction that conspires to conduct political action.
  16. 16. Pierce Butler (1744–1822) was a delegate from South Carolina who was an outspoken nationalist. He was born in Ireland and immigrated to the American colonies in 1771. After ratification he served in the Senate.
  17. 17. Elbridge Gerry (1744–1814) was a Massachusetts delegate who resisted the efforts of the nationalists and refused to sign the Constitution. He served as a member of the House of Representatives and as James Madison’s vice president. The “Gerrymander” derives its name from him.
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