Federalism treats of the dual sovereignty of state and nation. Unless handled cautiously, it can envelop in confusion the doctrinaire theories of representation. A strong states' rights advocate who believes in strict delegation as the relationship between representative and constituents on a state to national level may believe in weak constituents on a state to national level. This was the case with many southern statesmen when the states'-rights controversy began to crystallize. An individual who thinks in terms of relative loyalties or representation must be constantly aware of absolute loyalties or sovereignty.
Although sovereignty and representation may be different concepts, they may be related as practical political ideas. Temperament and political logic make the direct democrats friends of the confederationists. There is in fact an element of a psychological sort in direct democracy which strives towards isolated individualism or a view of government as a federation of individuals. The instruction of representatives and the veto (real or imagined) are essential elements in both direct democrats and confederationists. More often than not, a man is both if he is one.
Provincialism, the agrarian viewpoint, inclines men towards the idea of direct representation - a close relation between constituents and representative. The agrarian, territorial viewpoint brings localism and federation in its train. The agrarian society was in middle times feudal, its political organization antinational. The King had to destroy a federal structure. Similarly, in early American history, no mere accident connects Jeffersonian direct representation and Jeffersonian federationism.
American history from 1775 to 1789 was a confederationist experiment.[3] Franklin's Albany Plan of 1754 proposed for colonies a representation by the colonial quasi-sovereignties but added a procedure for voting and representation according to wealth and numbers. The only previous experiment with colonial confederation had been the United Colonies of New England (1643-84), wherein voting had been by equal quasi-sovereignties.
On July 21, 1775 Franklin came into the Continental Congress with a new "Articles of Confederation and Perpetual Union," incorporating the ideas of his Albany Plan. The project was hastily shelved as premature. In September of the same year, Joseph Galloway submitted his "Plan for a Proposed Union between Great Britain and the Colonies." He urged a Grand Council of the colonies for transacting common business. Each colony would be represented equally in it and need not concede traditional rights and powers to it. The whole would be presided over by a President General appointed by the Crown, and would transact business as part of the British Parliament on matters affecting the colonies. No power of independent legislation was granted the colonies, however.
Vigorous opposition buried the plan. But on June 12, 1776, the committee to prepare and digest the form of a confederation began work. The delegates were ready enough to confederate, but the problem of representation gave immediate trouble.[4] A nationalist sentiment was already present which Edward Rutledge prophesied would bend all minute things "to what they call the good of the whole."
Franklin's Plan, revived from its pigeonhole, allotted delegates to each state according to the number of its male polls between sixteen and sixty years of age. Franklin felt that the delegates might vote and be counted as individuals. It was Dickinson's plan which prevailed, however, in the final Articles of Confederation. The representatives were reduced to agents and each state was given one vote.
In the strenuous debate between the two ideas of representation before the final decision was made, some of the questions which later troubled the Philadelphia Convention came up. John Adams, arguing against equal voting by states, stated concisely the idea later made famous by Mirabeau's likening of the legislature to a map of the country.
"Reason, justice, and equity never had weight enough on the face of the earth to govern the councils of men. It is interest alone which does it, and it is interest alone which can be trusted... therefore the interests within doors should be the mathematical representation of the interests without doors."
He pleaded that the object of confederation was to make the states "an individual only."
Benjamin Rush, agreeing, stated the future Federalist theory of the Constitution. Since Congress would now hold in trust men's rights, as well as those of the states, Congressional representation ought to be on the same basis as colonial representation. James Wilson spoke in the same vein.
John Witherspoon and Roger Sherman offered compromises. Witherspoon suggested that the delegates vote as colonies on questions of life and liberty, and proportionate to numbers on questions of money. Sherman imagined two houses in one. "The vote should be taken two ways; call the Colonies, and call the individuals, and have a majority of both."
When the proposal that representation be regulated by numbers came up, the members debated whether numbers were a good index of wealth, for it was the representation of wealth they wanted as much as the representation of numbers. Here slavery entered the discussion in the same context as it would eleven years later. The slaves were wealth, but they were also numbers. All debate ended in failure to agree. The large and the small states seemed irreconcilable over representation.
Finally, on October 7, 1777, the Congress brought the whole matter to a vote. It rejected propositions that there should be one representative for every 50,000 inhabitants, another that there should be one for every 30,000 inhabitants, and a third that representation should be proportioned to contributions of money or taxes. Then all the states except Virginia voted for the motion that a state should have a single vote, and representation in the Confederation was settled.
The delegated chosen by the states to represent them in drafting
changes in the Articles of Confederation took, for the most part, a loose construction of their directives.[5] Most of them, and certainly the leaders of the Convention which drew up the Constitution, were inspired by sentiments of nationalism. In so far as the proceedings of the convention concerned the rights of the states, the guiding consideration of the convention leaders - Hamilton, Madison, Wilson, and others - was to abrogate as much of the sovereignty of the states as was possible under the circumstances. The delegates of the small states, on the other hand, were in a difficult position. Under instructions to preserve states' rights in order to protect the weaker against the stronger states, they nevertheless were compelled to realize the force and logic of the economic arguments of the nationalists.
Whether this compulsion lay in their unconscious class interests or in the so-called uniting forces which existed among the American states is fit subject for argument. It is conceivable that if the representatives of the small states had been of populist disposition, they would have recognized immediately the nationalizing effects of the various "nonpolitical" articles of the Constitution. Jefferson, for example, who was then in Paris, was troubled by some of the centralizing provisions of the Constitution, [6] and might well have given the leaders of the Convention considerable difficulty if he had been present. As matters developed in the discussions, however, the delegates of the small states who finally approved the constitution along with the larger states and those popular elements which helped in the final ratification, accepted almost at face value the doctrines of states' rights and representation of the states which were expressed in the document. They believed, in agreement with the strong current of rational political thought which trusted in representative procedures to control political reality, that the stipulated representation of the states would preserve state sovereignty and a generally valid federalism. Their stipulations worked in devious ways. For example, a little-publicized compromise in representation made by the convention was the method of providing for the division of a states' vote between its favorite son and a candidate from another state. (Art. II, Sec. 3, and 12th Amendment.) This was to prevent the large states from electing both President and Vice-President.
But the first administration of Washington introduced a true spirit of nationalism into the government and the second administration of Washington saw the beginning of national sectionalism.[7] Sectionalism swallowed the problem of the rights of individual states and thenceforth used the doctrine of states rights to justify the politics of a particular section of the country - the frontier interest, the landed southern interest, or the New England commercial interest. From the beginning, the size of the state had little to do with its choice of position on a social or political controversy.
Yet there is no doubt of the importance of the theoretical states' rights doctrine. It was a giant tree which was felled directly across the stream of American political theory, causing a bend in the tendency of that thought. It worked alongside the ideas of natural rights and individualism, taking ideas about the rights of man at one time and contesting the will of the majority at another. One result, for example, of the confusion caused by the theoretical problem of states' rights was the long-time neglect of sectional approaches to the study of American political theories. Legalists and constitutionalists found that they could more easily work on the local-national conflicts by talking of states instead of sections, because there existed at the beginning a theoretical structure for a legal conflict between state and national rights.[8]
However, in the interests of clarifying ideas of representation, it is necessary to pass over the interminable states' rights controversy. Jefferson was self-contradictory in his stands on that issue (e.g., funding of the colonial debt and the Louisiana Purchase), but his ideas of representation are clear. Other men who were nationalist in thinking, like Hamilton and Wilson, had to accept doctrines of state's rights in the Constitution which were theoretically incompatible with their general position on the structure of government and on representation.
William Paterson was neatly trapped by his own words in defining representation. "What is the principle of representation?" he asked rhetorically. "It is an expedient by which an assembly of certain individuals chosen by the people is substituted in place of the inconvenient meeting of the people themselves."[9]
This he stated in opposition to counting the slaves in allotting representatives. But he had been one of the foremost advocates of the principle of equal representation for the states, and Madison therefore could remind him
"...that his doctrine of Representation which was in its principle the genuine one, must for ever silence the pretensions of the small States to an equality of votes with the large ones. They ought to vote in the same proportion in which their citizens would do, if the people off all the States were collectively met."[10]
Even after the great compromise over the Senate, the protagonists differed on the meaning of the compromise.[11] Hamilton, for example, insisted that "the main design of the convention, in forming the senate, was to prevent fluctuations and cabals," disagreeing with Lansing in the New York Convention of 1788 who believed the intention to be to make the Senate "representative... of the sovereignty of the states." Hamilton held that the Senator should represent the nation, not the state, and ought not to be bound by instructions or otherwise fettered, once his election has been accomplished.[12] If he urged election of Senators by the state legislatures rather than by the people, it was because the former were supposed to be more competent. Of course, Hamilton's nationalism would tend in any event to de-emphasize the "state' rights" compromise involved in the creation of the Senate.
Hamilton's Convention proposals were sufficient to enrage Luther Martin, whose report to the Legislature of Maryland afterwards bristled with righteous indignation. Martin insisted that the appointment of the Senators by the states in their sovereign capacity and the equality of suffrage in that branch were "only federal in appearance."[13] For Senators might not be recalled for six years and were paid by the new government.
Martin, and those who like him were defending the sovereignty of the states, were acutely conscious that to create a new constituency means to create a new independence. The object of delegates like Wilson, Madison, and Hamilton was only half-concealed. That object was to establish a sovereignty of the national government over people. If the government were to depend on co-operation or even obedience from the state governments, it might fail completely, but when the people became citizens of the Federal government, state sovereignty was weakened beyond repair save through force of arms. Sherman put the matter bluntly: "If it were in view to abolish the State Govts. the elections ought to be by the people."[14]
Wilson stated to the Convention that he was opposed to the state legislatures as an instrument for electing to federal office. The people should have a double relation as citizens of the general government and of the particular state. "The election of the 2d. branch by the Legislatures, will introduce & cherish local interests & local prejudices."[15] Wilson won more than half his case ultimately, for what was lost by the nationalists in the Senate was regained by the new competence of the law of the Constitution operating on all citizens and state officers alike.[16]
In short, the Constitution and the Federalists papers discussing the Constitution are based on great compromises expressing a rational consensus arrived at in the Philadelphia proceedings. They do not measure or define completely the two major currents of ideas on representation which grew strong during the Revolution and flourished thereafter - the direct democracy idea and the control-by-property idea. In so far as they reflected the predominance of any idea, it was the latter that prevailed.