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The Benefits of Compromise - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government [1989]

Edition used:

Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


The Benefits of Compromise

In national politics, as in private life, it is sometimes wise to compromise one’s goals on certain occasions. Not everybody can have everything he wants; and half a loaf is better than none. In every country there are competing interests, differing bodies of opinion, distinct classes, and other rival groups or factions. So from late June onward, the gentlemen politicians at the Convention endeavored to reconcile their differences.

Madison dropped from the Virginian proposals the word “national” because it offended the moderate delegates. Reference to the possible use of force against dissenting State governments also was eliminated. One faction of delegates wanted to elect members of the “first house” of the new legislature for three years, and another faction argued in favor of one-year terms. They finally agreed on a two-year term—and that became part of the draft of the new constitution. Agreements were also reached on a six-year term for the “second house” and on lesser concerns. Nonetheless, there remained a principal obstacle to consensus at the Convention.

The great stumbling block was the old issue of representation that had surfaced earlier under the Articles of Confederation. Proponents of the Virginia Plan wanted to base representation of each State on the State’s population or its contribution to financial support of the Federal treasury. This was the position of most delegates from the larger and more wealthy States. By contrast, supporters of the New Jersey Plan wanted all the States to have equal representation in Congress—as they had enjoyed under the Articles of Confederation, with one State, one vote. This was the position of most delegates from the smaller States.

Presently a committee of one delegate from each State was chosen to arrange some compromise on this heated question. Dr. Benjamin Franklin appears to have worked out the committee’s agreement, which in effect gave the small-State delegates more or less what they sought. The committee’s report was hotly debated, and there were threats on either side that States might turn to violence if their cause was denied. More committees were therefore appointed, more concessions were made by either side, and at length the “Great Compromise” of the Convention was achieved. Five States voted for the Great Compromise, four against it, one was divided, and one State’s delegation—New York’s—went home in dismay. The result was a narrow margin of victory, but a victory that has nonetheless endured for two hundred years.

The concept of this Great Compromise was originally John Dickinson’s. Other delegates adopted it. Madison opposed it. It is sometimes known as the “Connecticut Compromise” because Dr. William S. Johnson, Oliver Ellsworth, and Roger Sherman of Connecticut vigorously urged its adoption. By the provisions of this Great Compromise, each State would have an equal vote in the upper house of the Federal legislature. This meant, in effect, that each State—no matter how large or how small, nor how rich or how poor—would retain in the upper house (now the Senate) the power that it had enjoyed under the Confederation. This arrangement also satisfied the general desire of the delegates to keep the size of the Senate small for purposes of debate. If all thirteen States joined the new union, the Senate would therefore consist of only 26 senators—two from each state.

In the lower house (what is now the House of Representatives), the number of members for the first Congress was specified for each of the States. Thereafter, apportionment would be made by the Congress itself on the basis of population, with three-fifths of the slaves being counted in each State for purposes of representation. In other words, the upper house (the Senate) would treat all States as equal, thus giving the small States a strong voice in that body. Membership in the lower house (the House of Representatives) would be based on population, thus giving an obvious advantage to the more populous States.

Many other important details remained to be settled by the Convention. The Virginia Plan had become the basis of the Convention’s work, but much of that plan needed to be modified or clarified.

Of the many complicated issues confronting the members of the Philadelphia Convention, the nature of the presidency proved to be almost as troublesome as the basis of representation in the legislature. In fact, in some respects the creation of the executive office was more difficult, and not until the closing days of the Convention were the delegates able to come to a complete agreement. The Virginia Plan offered little more than a general recommendation that “a national executive … chosen by the national legislature be instituted,” with the power to exercise “the executive rights” that had been vested in Congress under the Articles of Confederation. The Plan was silent on other specifics. Was the president to be one person or a collection of individuals? Instead of being chosen by the Congress, why not by the State governors, or by electors? Or should he be chosen directly by the people in a national vote? How long should he serve? Four years? Six? Seven? Eight? Eleven? Fifteen? For as long as the executive displayed “good behavior”? Should he be eligible for re-election? Should it be possible to impeach the chief executive, as members of the cabinet could be impeached by the House of Commons?

American precedents for a strong, independent executive under the first State constitutions, as we noted previously, were sparse. Reacting against the highhandedness of the royal governors, the framers of the State constitutions had generally created weak executives and strong legislatures; and the Articles of Confederation had vested all executive power in a unicameral Congress. Experience had shown, however, that many of these State legislatures had acted without restraint and abused their power, and that certain executive functions should not be conferred on a legislative body. There was therefore considerable support for the establishment of a reasonably powerful executive to check the legislature.

The New York constitution offered a better guide than the Virginia Plan and served as a point of departure. It provided for the election of a governor by the people, who was thus independent of the legislature. His term was three years and he was indefinitely re-eligible. Except for his power to appoint and veto laws proposed by the legislature, he did not need the approval of another body to carry out the executive function. He was in charge of the militia, possessed the pardoning power, and was empowered to execute the laws. In Federalist No. 69, Hamilton later observed the similarities and differences between the President and the New York governor.

When the executive portion of the Virginia Plan was taken up on June 1, James Wilson of Pennsylvania moved that the executive should consist of a single person. He argued in favor of a strong executive—elected by the people, and free of dependence on the legislature as well as the States. Wilson also wanted an executive who was empowered to veto legislation (in concurrence with a council of revision) and was eligible for re-election indefinitely. The great requisites of the executive department, the delegates agreed, were “vigor, dispatch and responsibility,” and Wilson’s proposal met these requirements.

The vote on Wilson’s motion was put over until the questions of method of selection, length of term, manner of removal, and powers of the office were determined. The Convention agreed that the executive should be independent of the legislature, but set its face against direct popular election of the executive, preferring instead an indirect method using State electors. “It would be as unnatural to refer the choice of a proper character for Chief Magistrate to the people,” remarked Gouverneur Morris, “as it would to refer a trial of colors to a blind man.” The term of office was set at four years, with indefinite re-eligibility, and the executive was armed with a veto power subject not to approval by a council of revision but to an override by a two-thirds vote of both houses of Congress. Given broad authority to exercise “the executive power” the Chief Executive was at the same time held in check by the people through presidential electors and subject to removal by Congress through the impeachment process. In general, then, Wilson was triumphant in attempting to lay the groundwork for the development of a strong independent executive, even though he was unsuccessful and virtually alone in advocating direct popular election of the President.

As for the judicial branch, the Virginia Plan suggested only “that a national judiciary be established” consisting of “one or more supreme tribunals, and of inferior tribunals to be chosen by the national legislature.” The Plan further provided that the judges hold their offices “during good behavior,” that their salaries be immune from legislative manipulation, and that their jurisdiction be limited to a narrow range of cases. The Plan thus envisaged a weak judiciary but one that was totally independent of the executive and partially removed from the influence of the legislature.

The members of the Convention were unanimously agreed that a national judiciary be established, but decided to strike the provision for inferior tribunals on the ground that they were not needed because State courts could deal with Federal cases at the trial stage. They ultimately decided, at the insistence of Wilson and Madison, that Congress be given the power to establish inferior courts as the need arose. As finally worked out in committee, the judicial power was increased well beyond the scope of the Virginia Plan.

At the apex of the national judiciary they established a Supreme Court headed by a chief justice. Before any Federal court could exercise the judicial power, however, it would first have to have jurisdiction over the case, meaning the authority to decide it. Placing primary responsibility for control of the courts in the hands of the legislature, the Framers gave Congress full authority not only to establish lower courts but to fix the size of the Supreme Court, regulate the jurisdiction of both the lower courts and the Supreme Court, set judicial salaries (but not reduce them), determine the time and place for sitting, and in general create and organize the whole judicial branch. As soon as the Constitution was ratified, Congress filled in these details in the Judiciary Act of 1789. The role of the President was limited to the appointment of the judges, subject to Senate confirmation. There were other questions: how should the new constitution be presented to the States and the people? Should it be submitted to the State legislatures? Should it be submitted to special State conventions, popularly elected? Could it go into effect if ratified by less than all the States? Eager to establish the Constitution on a popular base, but to recognize as well the residual sovereignty of the States, the delegates decided to submit the Constitution to State ratifying conventions chosen by the people. The Constitution would go into effect as soon as nine States ratified it.

In reaching decisions and compromises on all these and many other important matters, the Convention relied heavily on key committees to resolve issues that were not addressed on the floor or had been left undecided, to hammer out the details, and to put the Constitution in writing. On July 26, the Convention adjourned until August 6 so the Committee of Detail could prepare a report. This committee consisted of five delegates: Rutledge of South Carolina, Randolph of Virginia, Gorham of Massachusetts, Wilson of Pennsylvania, and Ellsworth of Connecticut—all of whom had been active in the Convention debates. These delegates were expected to work out, in the space of ten days, all these difficult concerns. From August 6 to September 10, the Convention considered this report in detail. A Committee of Style, consisting of Johnson of Connecticut, Hamilton of New York, Gouverneur Morris of Pennsylvania, Madison of Virginia, and King of Massachusetts, was chosen on September 8 to put the new Constitution into final literary form.