Bench Memos

NRO’s home for judicial news and analysis.

The Framers’ Senate


Blogging at The New Republic’s site about a New York Times article on criticisms of the Senate, Jonathan Chait writes:

The founding fathers did not create the Senate because they believed residents of low-population states deserved more political power than residents of high-population states. They did it because they had to compromise their democratic principles in order to secure the union. The whole history of progressive electoral reform–from the 14th and 15th Amendments through direct election of Senators, women’s suffrage, Baker v. Carr, the Voting Rights Act, and so on–have pushed toward fulfilling the original vision of democratic majoritarianism that has been compromised by the power of anti-majoritarian forces.

Chait’s claims here are a mess.  I’m not sure which of the “founding fathers” he means when he characterizes what “they believed” or tries to identify “their democratic principles” or “original vision.”  Does he mean James Madison?  William Paterson?  Oliver Ellsworth?  Edmund Randolph?  One thing is certain: Chait’s breezy confidence that he can swiftly limn the founders’ beliefs, principles, or vision in this fashion is a sign that he hasn’t any idea what he’s talking about.

Dial the Wayback Machine for, say, 1786, when the country was governed by the Articles of Confederation.  The Congress under the Articles was unicameral, with members chosen by state legislatures, paid by those legislatures and recallable by them, serving one-year terms and no more than three years in any six.  Each state could send anywhere from two to seven delegates to Congress, but in all floor business, each state would have one vote.  All of these features reflected the governing principle of the Articles–to knit together a collection of self-governing states with just enough glue to hold them together, while respecting the internal politics of each state as the real scene of American democracy.

The framers who made the Constitution agreed that the glue of the Articles was too weak.  How much movement to make in the direction of a truly national democracy was where all the interesting disagreements began to appear.  Having a bicameral Congress was not particularly controversial.  But some framers wanted both houses of Congress (if there were to be two) to be based on the federal principle of equal representation for every state, regardless of population, while others (like Madison, originally) wanted both houses to be based on the national principle of proportional representation according to population.

The one thing that didn’t happen at Philadelphia was Chait’s alleged “compromise [of] democratic principles in order to secure the union.”  Both the advocates of federal, equal representation of states in Congress, and the advocates of national, proportional representation of states in Congress had impeccable democratic credentials–and neither side accused the other of lacking those credentials.  The compromise that gave us “nationalism” in the House and “federalism” in the Senate was, well, just that–a compromise between those two ways of organizing democracy in America, not a compromise between democracy and something else.  There were no democratic heroes and anti-majoritarian villains in 1787 (no, not even the much-maligned Alexander Hamilton).  In truth, there wasn’t even grubby self-interested grasping by big states and little states chiefly at work, either.  There was America-as-nation and America-as-collection-of-states vying with each other, without a complete victory for either one.

Only in today’s blinkered “progressivism,” largely ignorant of the history of American political ideas and uninterested in half of those ideas when it encounters them, is the founders’ (partial) devotion to democratic federalism treated as “undemocratic,” while the founders’ (partial) devotion to democratic nationalism is treated as the whole of their “original vision” that was so sadly “compromised” by bargains with democracy’s enemies.  It’s a useful Just-So story, but it ain’t history.


Subscribe to National Review