Orientation and Getting Started
The Creation of the Constitution
The Road to Philadelphia
Slavery and the Constitution
The Presidency
The Federal Judiciary
Some Other Important Details
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Competing Views of Justice, Nationalism, and Federalism

Throughout most of the Constitutional Convention, the intention to institute two houses of Congress was shared by a broad consensus of delegates. The precise shape of these two houses, however, was constantly in flux that summer. One reason for the shifting features of the chambers was the shifting ideas of the purpose that each house was meant to serve. At various points during the debates, the “lower house” was meant to form a “transcript” of society as a whole, or to embody “republican” virtues, or to defend the interests of the poor. In a corresponding way, the “upper house” was at various times meant to express the will of the states as corporate bodies, or to form a cool and dispassionate body of elder statesmen, or to protect the interests of the rich. The different constitutional features of each house—their different modes of selection, different qualifications for office, different tenures of office, the different size of each body, and, of course, the different modes of apportioning representation—reflect the Framer’s shifting opinions about the functions that each house was meant to serve. 

Unquestionably, the most contentious issue at the Convention was how representation should be apportioned in the new Congress. The small states, by and large, wished to retain the system they had enjoyed under the Articles of Confederation, whereby each state had an equal vote in the Congress. This system benefitted the small states politically, and it would also render the Constitution more like a traditional federal arrangement. Many delegates from the small states, however, were willing to compromise this principle within one house of a bicameral legislature. The large states, on the other hand, wanted representation in both houses to be based on some proportion of the wealth or population of each state. This change would have given more power to the large states relative to the small. It also would have made the Constitution more like a national government, rather than one that was merely federal. The alignments between those who wanted a federal government and equal representation on the one hand, and those who wanted a national government and proportional representations on the other, are not perfect. For the most part, the delegates argued for whichever arrangement would be in their own state’s interests. But the arguments were not merely over the issues of interest and power. The individual participants also argued for the arrangement that they believed was their due; in other words, many of their arguments represent conflicting claims of justice. Their final compromise reflected not only the give-and-take of political concessions; it also split the difference between opposing principles of federalism versus nationalism and recognized these multifaceted claims of justice. 

A Question of Justice

Under the Articles of Confederation, each state had an equal vote within the single house of Congress. That meant that Delaware had the same political weight as Virginia, even though Virginia had more than twelve times the population as Delaware. All the states had ratified the Articles—so they had all agreed to the terms—but the equality of suffrage in Congress had rankled the large states from the start. Most of the delegates from the large states, and even some from the medium- and small-sized states, arrived at the Convention with the intention to “fix” that imbalance when they revised the Articles. James Madison explained in a letter to Virginia’s governor, Edmund Randolph, that the equality of the states under the old Articles, “if not just towards the larger members of it, is at least safe to them” (emphasis added). He believed that the Articles were safe for the larger states because its government was so weak and ineffectual that any state was able to resist any measure it didn’t like. If the upcoming Convention succeeded in drafting a Constitution that created a stronger government, however, then Madison believed that it would also have to represent the states in a way that treated the larger ones with more justice. 

When histories are written about the arguments that led to the “Great Compromise,” it is commonplace for them to emphasize that each state was arguing on behalf of its own self-interest. The large states wanted Congress to be represented proportionally, because doing so would enhance their power in the new government. The small states wanted Congress to represent the states equally, because that arrangement would magnify their own political clout. This interpretation is not incorrect, but it is incomplete. Political positions can be spurred by self-interest or self-righteousness, and the one motivation does not necessarily cancel out the other. 

This mixture of self-interest and moral principle seems apparent when the Framers argued about representation in the new Congress, and that is why their arguments became so inflamed. Most delegates argued for the position that they thought would benefit their own state, but they also argued on behalf of what they thought was rightfully their due. In order to understand their arguments, then, it is necessary to understand these different perspectives of justice from which the Framers argued. 

Examining Political Justice

Most questions of political justice can be broken down into three basic principles: equality, proportionality, and law-abidingness (these categories hearken back to what Aristotle said about justice more than 2,000 years ago). Some questions are generally agreed to be a matter of simple equality. For instance, the rule of “one man, one vote” supposes that, since we are all equal in our political rights, it is right that every person’s vote should have equal weight with every other person’s vote, regardless of the wealth, status, or education of the individuals in a community. Other questions, such as levying taxes, are better settled proportionally. People may disagree about which rule of proportionality should be applied to taxes—should it be a graduated proportional tax or a “flat” tax? And should the percentage be applied to a person’s income or to purchases? (to say nothing of capital gains and inheritance taxes). But no one argues that a rule of equality should be applied to taxation. And finally, justice is also expressed as a rule of law-abidingness. Put simply, this last rule insists that promises should be kept; contracts should be upheld; and laws should be obeyed. Of course, some contracts are unfair and some laws are unjust, but these exceptions do not disprove the rule. The possibility of unjust laws only means that this last principle of justice will sometimes be in conflict with the other two; and when that conflict is too egregious to be borne, people will clamor that a law must be changed.

The arguments over apportioning seats in Congress involved all three competing notions of justice—equality, proportionality, and law-abidingness—but they also involved competing interpretation of the facts. Part of the reason why the delegates found it difficult to agree over which principle of justice to apply in this case was because they hadn’t yet agreed on what kind of constitution they were creating. Would their government be national or federal? The answer to that question would alter the rule that ought to be applied. 

Finally, although we tend to say that the debate was between the “small states” and the “large states” for simplicity’s sake, the reality was not that simple. For instance, all of the Southern states argued as if they were large states, even though South Carolina was on the small end of the medium-sized states and Georgia was a small state. But the Southern States often tended to vote as a coalition, and they no doubt saw proportional representation as more beneficial to the Southern States, taken as a voting bloc, than equality among the states. John Lansing, on the other hand, argued for an equality in the Congress, even though a proportional rule would have benefited his home state of New York. His position was unquestionably adopted because he favored retaining the federal system that had been adopted under the Articles, and he resisted every attempt at consolidating the states into one national government. Each delegate’s position on this question was adopted from some combination of self-interest and principle.