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All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
On May 5, 1787, James Madison arrived in Philadelphia. He was the first of an august body of men to arrive in what was then the capitol of the young American republic. His purpose, and the purpose of those who were to gather in the days that were to follow, was to examine the government of the fledgling union as it then existed, and to correct its flaws and establish a new scheme of government that would “preserve the blessings of liberty” for generations to come.
Already, prior to this time, Madison had become convinced that the then existing Articles of Confederation, which governed the relationship of the several states and established a weak national government, were insufficient and inadequate. He documented his concerns about the manner in which the states and the existing governmental infrastructure were functioning in a short memorandum on “the vices of the political system of the United States.”
Among the vices Madison identified were problems inherent in lawmaking in the states and under the Articles of Confederation. With regard to the latter, he noted that the states regularly failed “to comply with the Constitutional requisitions.” This failure, which he termed an “evil,” resulted in Madison’s opinion “from the number and independent authority of the States.” So long as this remained unaddressed, a national government would be essentially useless. In fact, in the second point in his memo on the problems facing the young United States, he pointed out that state encroachments on federal authority were numerous already at that early date, and he pointed out examples, including “unlicensed compacts between Virginia and Maryland,” arrangements that may have proved harmful to other states.
As to the states themselves, they provided multiple examples of even greater problems. There were, Madison noted, a “multiplicity of laws in several states.” This had the tendency to result, he complained, in the much too rapid growth of laws, and he heaped a powerful dose of scorn and excoriation upon the practice:
As far as laws are necessary, to mark with precision the duties of those who are to obey them, and to take from those who are to administer them a discretion, which might be abused, their number is the price of liberty. As far as the laws exceed this limit, they are a nusance: a nusance of the most pestilent kind. Try the Codes of the several States by this test, and what a luxuriancy of legislation do they present. The short period of independency has filled as many pages as the century which preceded it. Every year, almost every session, adds a new volume.
Moreover, the laws passed by the several states with such rapidity were just as rapidly being amended or repealed, leading to confusion. “We daily see laws repealed or superseded, before any trial can have been made of their merits: and even before a knowledge of them can have reached the remoter districts within which they were to operate,” Madison noted. “In the regulations of trade this instability becomes a snare not only to our citizens but to foreigners also.”
These problems challenged the very notion that a republican form of government was even possible. Historian Jack N. Rakove of Stanford University summarized the problem in his biography of Madison:
The simple truth, Madison believed, was that incompetent legislators were passing too many laws, and these poorly drawn acts were being repealed or revised before anyone could discover how well they were actually working. Such proceedings brought the very concept of law into contempt. In a republic obedience to law rested neither on the efficiency of monarchy or on the influence of an able aristocracy but on the free compliance of citizens who believed that the laws were rightly made and fairly executed. Call that faith into question, Madison understood, and the willingness to abide by law would crumble. (Rakove, 47)
The solution would be to vest or bestow sufficient power in the hands of a national legislature and then to construct it in such a way as to ensure an optimal outcome that would ultimately serve the need to maintain a republican form of government for an indefinite period of time. No small task!
Fortunately, in May of 1787, Madison had what he believed to be the solution. When the remainder of the Virginia delegation arrived they began to construct a proposal that could then be submitted to the full convention. The resulting Virginia Plan went on to play a key role in structuring debate at the Convention and in large measure can be viewed as the “rough draft” of the Constitution that the Convention ultimately produced.
In the plan, Madison and the Virginia delegation proposed that “the National Legislature ought to consist of two branches.” The Virginia Plan also proposed that members of the first branch “ought to be elected by the people of the several States” and “that the members of the second branch ... ought to be elected by those of the first.” The power to make law, to legislate, would belong to both branches, or houses, jointly, as spelled out by point six of the plan:
Resolved that each branch ought to possess the right of originating Acts; that the national Legislature ought to be impowered to enjoy the Legislative Rights vested in Congress by the Confederation & moreover to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation; to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union, and to call forth the force of the Union agst. any member of the Union failing to fulfill its duty under the articles thereof.
This was a stunning grant of power, and it was put into place in the Constitution ultimately created by the Convention and ratified by the states, and its major implementation, in the form of the “vesting clause,” appears in Article I, Section 1 of the Constitution.
It was made possible, only because Madison and other delegates believed that a single or unicameral legislature vested with such power would become a menace, prone to the same ills that Madison identified in the state governments and the Federal Congress as it operated under the Articles of Confederation. Only a double, or bicameral legislature, along with other checks and balances, could keep the legislative branch in check.
To that end, Madison’s plan called for the upper house of the legislature to be filled by persons who could “hold their offices for a term sufficient to ensure their independency” as a balance or counterweight against the possibility, or even probability, that electoral enthusiasms that would be likely to hold sway over the lower house would not carry the day in too many situations and lead to the rapid passage of legislation ill-conceived in the heat of the moment. Though it is derided today, Madison’s plan depended on the concept of gridlock.
Madison was not to get his way, entirely. In June, the states represented at the Convention voted to allow state legislatures to elect members of the upper house, the Senate (this would later be changed again to direct election by the 17th Amendment). Madison opposed the move, believing that the state legislatures had proven themselves unreliable in preceding years, but he also believed, according to historian Rakove, that “the upper house would lose its character as a small, highly select institution” that could adequately counterbalance the lower house. In practice, however, state legislative election of Senators was an important means of further balancing the power of the new government against the states themselves, and this “federalist” approach -- even though since modified and, arguably weakened -- has played an important role as one of the many “checks and balances” built into the Constitutional system.
