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12

Bicameralism



CHAPTER 12

Introduction

When George Mason proclaimed in the Philadelphia Convention (no. 16) that "the mind of the people of America" was "well settled" in its attachment to the principle of having a legislature with more than one branch, he was not asserting that the matter was beyond contention. True, eleven states had a bicameral legislature. Yet the Continental Congress consisted of but one house, and even while speaking, Mason stood in the precincts of a unicameral state legislature that had existed since 1776 or (counting its colonial predecessor) since 1701. Not only was America not simply of one mind about the principle, but even those who adhered to the principle did so out of different considerations. Further, the singular features of the bicameralism finally adopted by the Philadelphia Convention perhaps owed as much to the suspicions, bordering on hostility, between the larger and smaller states of America as to the purely principled grounds for bicameralism. All this was known to Mason and his fellow delegates and colored their discussions as they moved freely between close theoretical reasoning and hard horsetrading.

Yet for all that, there was general acceptance of bicameralism by the Americans. Although one is tempted to trace much of that accord to their familiarity with the British model (see ch. 17, no. 9), there are grounds for arguing that bicameralism was generally accepted despite the British model. After all, the cumulative grievances that led to the declaration of American independence stemmed more than anything else from the policies passed in Westminster; in this respect Parliament's behavior constituted no strong case for bicameralism as a guard against shortsighted or passionate legislation. Moreover, the distinct social orders that underlay the separation of Lords and Commons in England were, in America, at most evanescent groupings. If, then, America did not yet have the makings of a permanent class of "well-born," what was the point in having a second or upper house?

Bicameralism and Security

Despite these counterindications, Britain's example and their own colonial experiences continued to commend bicameralism to the Americans. Their long-standing admiration for the British constitution (whether in its mythic uncorrupted form, or in spite of its flaws and abuses), and their vision of a truly balanced legislature, government, and society (see ch. 11, no. 2), lent special authority to the British model. Moreover, most of the colonies had already developed an upper legislative chamber out of their governor's council. Those councils typically represented the concentrated power of great landlords and wealthy merchants and brought them into confrontations with the more modest social and economic orders represented in the lower houses. If those experiences were not altogether happy, they nonetheless suggested to all the utility of having a chamber where one's most essential rights and dearest interests could be asserted and defended. Even in the absence of a permanent class of American lords, the principle of a chamber exercising analogous checks upon a covetous popular assembly or an aggrandizing executive was especially attractive to the owners of substantial property. But it was not only the rich who saw in bicameralism a potent means of reducing the risk that public trust would be betrayed--from whatever quarter.

The arguments offered for bicameralism thus suggest a quasi-aristocratic point of view and a profoundly republican point of view as well. In general, discussion of a second legislative chamber presumes that its membership would be smaller, hold a longer term of office, and be more select than the first. The two bodies would in that sense be visible physical representations of the few and the many. From there it is but a small further step to attribute the characteristic tempers of those groups to the two chambers and to find there the objects of one's particular fears and hopes. And as though to ensure the disparate characters of the two chambers, it was generally the case that the property qualifications for electing state senators and for holding the office itself were higher and more restrictive than for electors and members of the first house.

The first or lower chamber could then be viewed as an embodiment of the popular will of the day, an assemblage of representatives who come close to being reflexes of the people at large. Across the range of republican opinion, it was agreed that such a body was the necessary foundation of popular government resting on consent. But where the people at large can be arbitrary, tyrannical, and passionate, so too can their faithful mouthpieces (nos. 6, 8; see also ch. 15, no. 14). Or, partaking of the failings to which any unchecked body is exposed, a single assembly may be improperly influenced or self-serving or foolish with none to call it to its senses (no. 10). Such a people, such an assembly, require a check to save them from themselves. Alternatively one could argue that it is precisely in a regime grounded on popular sovereignty and devoid of any class vested with hereditary prerogatives that a second chamber, free to veto "the united will of the whole community, is not only absurd and ridiculous, but highly dangerous" (no. 9).

Proponents of a second chamber were not only wary of the many; some of these very same republicans were also concerned about the overbearing pretensions of the few and viewed the second chamber in that light. Thus Benjamin Rush in 1777 saw the isolation of rich men in a second chamber as the necessary condition for collecting the countervailing strength of "the men of middling fortunes" in the first house. Without such a concentration, the liberties of ordinary folk could not be safe from "that lust for dominion which is always connected with opulence." This isolation of men whose abilities and passions would prove "too much for simple honesty and plain sense" was, John Adams confessed, "to all honest and useful intents, an ostracism" (no. 14).

Bicameralism thus offered a double security against ambition or corruption and against betrayal of trust. All the more was this needed in a republican government where predominance of the legislature, and of the popular house within the legislature, might be taken for granted. So well understood was this, that Madison held it "more than superfluous" to enlarge upon the point (no. 22). Of course this security would be the greater, the more dissimilar the two houses were in their "genius," but all such differences had to fall within the limits set by "the genuine principles of republican government." With the single exception of the republican government imperative, one ought not to judge the qualifications and character of the two chambers by the same standard. "The perfect balance between liberty and power," Hamilton argued (no. 24), requires "the opposition and mutual controul" of distinctive bodies, the one "peculiarly endowed with sensibility," giving voice to popular feelings and concerns, the other marked by knowledge and firmness, enabling the government to pursue an energetic and consistent policy. Each house would then be disposed to keep the doings of the other under a close and suspicious watch. Here was a benefit of bicameralism that James Wilson (no. 26) held was available even where (as in Pennsylvania's new constitution of 1790) both houses were chosen by the same electorate and in the same manner, for it could be presumed that each chamber's "esprit du corps" would lead them to be "rivals in duty, rivals in fame, rivals for the good graces of their common constituents."

Wilson's reliance on a politically wholesome emulation between legislative houses had already been anticipated by the Federal Farmer (see ch. 11, no. 12). The representation and balance in the new system were by no means perfect, but the Federal Farmer had to admit that "in the present condition of the United States" not all that much could be done. The social basis was lacking for a genuine balance between differently constituted houses. The more common view, however, was that there was diversity enough in the two respects that matter most: ability and property (nos. 6, 8; see also ch. 15, no. 14). The second chamber was the proper place for those most distinguished in both. Where, as in Virginia's constitution of 1776, the two houses were not markedly distinctive, there was reason to doubt whether the benefits of bicameralism exceeded its costs. Jefferson's remedy was to heighten the difference (no. 11).

The Case for Unicameralism

The opposing argument is typically not so much a case for unicameralism as a case against bicameralism, and it suffers the fate of negative arguments. The principled case for unicameralism is the democratic one that the voice of the people is best heard and most effective in a plain, simple, uncomplicated system. The more common argument is that there is no special advantage in bicameralism. Francis Hopkinson thought that Pennsylvania was not doing all that badly hopping along "upon her one leg"; on the whole a single house took greater care when legislating (no. 12). The complications of a bicameral system made it more likely to malfunction, harder to repair, and at least "as likely to check a good bill as a bad one" (Republicus, no. 21)--a feature that the opponents of energetic government might have found endearing. At the very close of his life, Franklin echoed Hopkinson's sentiments, adding his own special grace notes. Viewed without sentimentality, English bicameralism was no product of political wisdom, but rather "the Effect of Necessity, arising from the preexisting Prevalence of an odious Feudal System" (no. 25). The creator of Poor Richard thought the political claims of private property to be excessive. Civil society was not like a business partnership where greater contributions entitled one to greater voting rights. The well-known distinction between persons and property in no way warranted devoting a legislative chamber to property as a distinct interest.

At the level of a national constitution, bicameralism looked beyond the social class and personal quality of the legislators to the issues of federalism and legislative function. While equality of state representation pointed in one direction, the abandonment of voting by states (as in the Continental Congress) pointed in another. Under the proposed Constitution the states clearly would have a more visible representation in the Senate than in the House of Representatives, and the state legislatures themselves would choose the Senators. (On this last point only a tiny handful in the Philadelphia Convention--Madison and Wilson among them--opposed any role for the states in the election of Senators, but they were unable to carry even their own delegations. Thus it was settled early and decisively that the states as such must have a voice in the national legislature.) Again, the requirement that all money bills originate in the house (Art. 1, sec. 7, cl. 1) bespeaks a difference in function closely connected to a difference in composition. Much the same can be said for the Senate's special role in advising and consenting with respect to treaties and appointments (Art. 2, sec. 2, cl. 2), and for the different roles marked out for the two legislative bodies in the impeachment process (Art. 1, sec. 2, cl. 5; Art. 1, sec. 3, cl. 6). A small continuing body, chosen indirectly for staggered terms longer than those of any other elected office in the government, would be better situated than most to take a long view.

Equality for Unequals

For the most part bicameralism was taken for granted and became part of the given background to the Philadelphia Convention's debate on the principle of representation in the upper house. It was here that old fears and resentments threatened to undo all. The question of what constituted a fair representation of states varying wildly in territory and numbers was as old as union itself. Arguments of justice and expediency had clashed for long, with no resolution (Continental Congress, nos. 3, 5). Compromises had come to nought. Protestations that the larger, that is, the presently or imminently most populous, states had no common interest in lording it over the smaller states fell upon deaf ears in states (such as Delaware) that were hemmed in and had no claims to trans-Appalachian lands (no. 13). Perhaps the only new argument (if it may be so dignified) raised in the convention was the threat voiced by Luther Martin of Maryland that "he had rather see partial Confederacies take place" than accede to a plan doing away with the equal voting strength enjoyed by the states under the Articles of Confederation (no. 18). Wilson of Pennsylvania argued that this jealousy stemmed from the private interest of state officials, not from the legitimate concern of individual citizens for their happiness, and as such deserved to be discounted (no. 17). Hamilton of New York argued that the smaller states' claim that a loss of equality entailed a loss of their liberty was altogether spurious. "The truth is it is a contest for power, not for liberty" (no. 18). But the truth of a rebuttal does not always make it more acceptable, and the smaller states persisted in what Madison called "their pertinacious adherence to an inadmissable plan" (no. 15). The compromise of 29 June gave the Federal Constitution's bicameralism its peculiar cast. After one final slap at the right of equal suffrage among the states as contradicting the "fundamental maxim of republican government" (see ch. 5, no. 23), all that the unreconciled opponents of equal suffrage in the Senate could do was to put the best face upon it that they could manage (no. 22; see also Hanson, Remarks on the Proposed Plan, 1788). It was not a case that Anti-Federalists from large states found persuasive (no. 23).

In the end Madison swallowed the equal representation of the states in the Senate as unavoidable. Making a virtue of necessity, he discovered some advantage in a legislative process that would elicit a dual majority, of people and states. In any event, the proposed Senate gave promise of being the locus of precisely those quasi-aristocratic virtues that republican principles would admit and republican government--if it were to endure--would require.


The Founders' Constitution
Volume 1, Chapter 12, Introduction
http://press-pubs.uchicago.edu/founders/documents/v1ch12I.html
The University of Chicago Press

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