For a Fourth of July activity, pre-Twins game, I've been skimming some of the Federalist Papers. These are the series of 85 essays, by Alexander Hamilton, James Madison, and John Jay, that were published in New York newspapers beginning in October of 1787. The purpose was to persuade New York to ratify the Constitution that had been drafted that summer at the Constitutional Convention in Philadelphia. I might have mentioned before that the twenty-second, in which Hamilton inveighs against the equal representation of states, is one of my favorites:
Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York; and to Delaware an equal voice in the national deliberations with Pennsylvania, or Virginia, or North Carolina. Its operation contradicts that fundamental maxim of republican government, which requires that the sense of the majority must prevail. Sophistry may reply that sovereigns are equal, and that a majority of the votes of all the States will be a majority of confederated America. But this kind of logical legerdemain will never counteract the plain suggestions of justice and common sense. It may happen that this majority of States is a small minority of the people of America
After the word "America" Hamilton inserted a footnote that reads:
New Hampshire, Rhode Island, New Jersey, Delaware, Georgia, South Carolina, and Maryland are a majority of the whole number of States, but they do not contain one third of the people.
Hamilton's animus is here directed against the Articles of Confederation, which had been adopted in 1777 and now were about to be replaced, he hoped, by a new Constitution. Yet Article 1, Section 3, of the new Constitution he was recommending begins
The Senate of the United States shall be composed of two Senators from each State. . . .
and the logic of his argument against the Articles therefore applies to the Constitution's Senate as well. Moreover, the goal was to get New York to ratify the new Constitution, and New York was one of the big states that would be underrepresented in the Senate—dwarfs such as Delaware, Rhode Island, and South Carolina would have "equal weight in the scale of power," thereby violating "every rule of fair representation." The original readers of Federalist No. 22, New Yorkers weighing whether their state should ratify the new Constitution, might have noticed that "two senators for every state" was just another instance of what Hamilton purported to be condemning. Why should they ratify a Constitution that, in the upper chamber of the Congress, would place their interests and sense of the public good on a level with South Carolinians'?
James Madison somewhat sheepishly answered this question in Federalist No. 62:
The equality of representation in the Senate is another point which, being evidently the result of compromise between the opposite pretensions of the large and the small States, does not call for much discussion. . . . A government founded on principles more consonant to the wishes of the larger States is not likely to be obtained from the smaller States. The only option, then, for the former lies between the proposed government and a government still more objectionable. Under this alternative, the advice of prudence must be to embrace the lesser evil; and instead of indulging a fruitless anticipation of the possible mischiefs which may ensue, to contemplate rather the advantageous consequences which may qualify the sacrifice.
When contemporary liberals complain about senators from Wyoming (population: 600,000) cancelling the votes of the senators from California (population: 40 million), or point out that the senators voting to confirm the justices who overturned Roe represent considerably less than half the country's population, they elicit stern lectures on what the Founders, out of their endless store of wisdom, wrought. But what these contemporary apologists call "wisdom" was hated by Hamilton and regarded as "the lesser evil" by Madison, who recommended it only because it was necessary to get the small states on board.
In No. 22 Hamilton had continued, after the passage quoted above, to argue:
The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifice of an insignificant, turbulent, or corrupt junto to the regular deliberations and decisions of a respectable majority. In those emergencies of a nation in which the goodness or badness, the weakness or strength, of its government is of the greatest importance, there is commonly a necessity for action. The public business must in some way or other go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority in order that something may be done must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.
I have been used to thinking of this as a prescient critique of a "tone" that would finally prevail well over 200 years in the future. But I now think the force described by Hamilton was operating on him at the time he wrote these words. It was necessary that something be done, the new Constitution had to be ratified, and a "pertinacious minority" was thus able to impose its will on the "respectable majority," with the result that "the sense of the smaller number prevailed," the public good was compromised, and every state, regardless of its population, got two senators—not because it was wise, just, and good but only so that the new Constitution could get ratified.
Comments