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
1 of 2

Electing Members of an Upper and Lower House

After weeks of debates at the Convention, the Framers eventually came to view the two houses of Congress as an opportunity to split the difference between a “national” Constitution that consolidated all power in one central government and a “federal” one that left almost all sovereign power in the states.  But long before this “partly federal, partly national” conception was ever conceived or articulated, the delegates came into the deliberations with the understanding that, within most bicameral arrangements, one house was the “upper” chamber and one house was the “lower” chamber.  This conception had many adherents; it took many different forms; and it was never fully supplanted by the nationalist/federalist debate.  Certain constitutional features about the two houses of Congress—such as the modes of electing members for each house, the size of each chamber, the different powers, qualifications, and length of terms for congressmen and senators, and the eligibility for suffrage to elect the House of Representatives—reflect this understanding of an upper chamber and a lower chamber.  

“Mixed Regimes”

From the beginning of the Convention, the Virginia Plan had established that Congress would have two houses and that these houses would have different characters.  The proposed change from the unicameral Congress prescribed by the Articles to the bicameral one in the Virginia Plan meant that the Framers had the opportunity to remake each house into something completely distinct and of their own design.  But what should each house look like?  Older constitutions had introduced the principle of the “mixed regime,” whereby different parts of the government represented different classes of the citizenry.  Examples of mixed regimes could be seen throughout the ancient world, but Britain’s constitution was the form that every American would have been most familiar with.  In Britain’s Parliament, one house (The House of Lords) represented the upper classes and the nobility while the other house (The House of Commons) was meant to represent the lower classes.  But how much sense did it make to follow this example, especially since America had no titled nobility, and some Americans were growing increasingly suspicious of distinctions based on class?  

There were two distinct rationales for using the bicameral legislature to divide power between the different classes of society—what might be called the “pessimistic view” and the “optimistic view” of a mixed regime.  According to the “pessimistic view,” the rich and the poor form two distinct and opposing interests within society.  If all the power were given to the rich (or oligarchic) part of society, then they would use it to oppress the lower classes and keep them from attaining prosperity or otherwise restrict their personal rights.  On the other hand, if all the power were given to the poor, they would use it to raid the property of the rich and redistribute it amongst themselves.  Therefore, the best arrangement was to give some power to each of the classes, so that each one is able to protect itself from the persecution and rapacity of the other.  This more pessimistic view seeks to balance and check the two destructive impulses that predominate in every society: the selfishness and imperiousness of the rich (the ruling passion in every oligarchy) and the selfishness and envy of the poor (the ruling passion in every democracy).

The “optimistic” and “pessimistic” view of Mixed Regimes

According to the more “optimistic view” of mixed regimes the different elements of society each have distinct and valuable qualities to contribute toward the common good. Every society has an “elite” who are better educated, more virtuous, more honorable, and more experienced than the rest of society. Nonetheless, the elite, because of their elevated stature, are often out of touch with the concerns and needs of ordinary folks.  That’s where the representatives of the great mass of people have something to contribute.  They are in possession of more particular information about the everyday interests and needs of citizens from every quarter of the regime (including the disadvantaged regions). Nonetheless, because the multitude—this great republican vanguard in society—possess less education and self-discipline than the elite, they can sometimes act in an impulsive, fickle, and ill-advised manner.  

The pessimistic view had tried to balance the destructive forces of what the ancient philosophers considered to be two bad forms of government: rule by the rich (oligarchy) or rule by the popular mob (democracy). The optimist view of mixed regimes, on the other hand, sought to capitalize on the advantages of the two good forms of government: harnessing both the aristocratic and the republican elements of society.  Every piece of legislation receives all the benefits of the wisdom, foresight, and stability of the upper (aristocratic) branch, and it benefits from a broad knowledge of the electorate and a vigilant protection for the people’s rights, which is found in the lower (republican) branch.  

All of these varying optimistic and pessimistic views—which, at the time, merged into the abstract conceptions of having “upper” and “lower” chambers of Congress—were present during the first days of the Convention, and would be further developed, refined, and complicated as the two branches of the legislature simultaneously adopted the characteristics of federalist and nationalist bodies.  The final Constitution blended all of these elements into the Congress, although some were more predominant than others.

Gerry the Pessimist and Mason the Optimist

The delegates weighed in about what was necessary for forming an upper and a lower branch of the legislature. On May 31, the Committee of the Whole debated the fourth resolution of the Virginia Plan, which specified that the first house should be chosen directly by the people.  Elbridge Gerry, whose home state of Massachusetts had recently been almost torn apart by local insurrections, protested that “the evils we experience flow from the excess of democracy.”  The people lacked the virtue necessary for good republican government. Gerry, who took the pessimistic view of mixed regimes was convinced that any new constitution would have to have more oligarchic protections for the rights of property to balance out the excesses of democracy they had experienced within the existing constitutions.

Mason responded to Gerry with a spirited defense of the positive good to be found in the lower, republican, branch of the legislature.  He “argued strongly for an election of the larger branch by the people.  It was to be the grand depository of the democratic principle of the government.  It was, so to speak, to be our House of Commons.  It ought to know and sympathize with every part of the community.”  A legislature needs the knowledge of and sympathy with the people in order to formulate good laws, and those qualities could only be acquired when there was direct election by the people in the Lower House.  Mason conceded Gerry’s point that “we had been too democratic, but was afraid we should incautiously run into the opposite extreme.  We ought to attend to the rights of every class of the people.”  The problem with some of the state constitutions was that there were too few institutions that could counterbalance the democratic branch of government.  What they needed was to find the right balance, not to tip the scales in the opposite direction.

Electing Members of the Lower House

Madison backed up Mason’s account of the Lower Branch, saying that he “considered the popular election of one branch of the national legislature as essential to every plan of free government.” Without a popular basis for at least one house, Madison continued, “the people would be lost sight of altogether, and the necessary sympathy between them and their rulers and officers too little felt.”  In the Upper Chamber—indeed, in any branch of the government except for the Lower Chamber of the legislature—Madison would be in favor of “the policy of refining the popular appointments by successive filtrations.” But like Mason, he “thought it might be pushed too far.”  Madison wanted all the powers of government to be ultimately derived from the people, and he wanted the Lower House of the legislature to be directly dependent on them.  As he repeated a few days later, he “considered an election of one branch, at least, of the legislature by the people immediately, as a clear principle of free government.”   

When the Committee of the Whole voted on popular elections for the Lower House, only six states were in favor of the measure.  New Jersey and South Carolina voted no, and Connecticut and Delaware were divided on the question. The vote of South Carolina was probably influenced by a more elitist and aristocratic political stance than what prevailed in most of the other states.  Even though the committee had voted to have popular elections for the Lower House by a 6-4 majority, Charles Pinckney and John Rutledge of South Carolina reopened the question a few days later, on June 6, in an attempt to do away with popular elections altogether.  They contended “that the people were less fit judges” to make such a choice than the state legislators.  General Pinckney, another South Carolinian, agreed with them: their state’s lawmakers “had some sense of character” (unlike the voters who had put them in office).  Therefore, state legislatures would be better able to select fit members for a national legislature.  

The arguments from South Carolina provoked a spirited defense of popular government from some of the delegates. Wilson insisted that the government they were forming must possess “the mind or sense, of the people at large.  The legislature ought to be the most exact transcript of the whole society.”  Wilson favored unmixed democracies perhaps more than anyone else in the room, and as such he added:  “Representation is made necessary only because it is impossible for the people to act collectively.”  (Wilson would later express a wish for direct elections of the Upper House and the president as well.)  Mason again acknowledged that they had experienced many evils arising from democratic elections, but he pointed out that no political form was free from imperfections.  He urged his colleagues not to focus on these democratic imperfections in isolation, “but compare these with the advantage of this form, in favor of the rights of the people—in favor of human nature.”  When the question came up for a second vote, there were now only three states voting against popular elections for the Lower House; this time, Delaware had sided with the populists.  

The New Jersey Plan and Representation

After this vote, it would seem that popular election for the Lower House would be secure, but there were a couple more assaults on the principle, coming from different directions.  On June 15, Paterson’s New Jersey Plan attempted to reverse course and institute a unicameral legislature that would be selected by the state legislatures.  Although the motivations behind this rival plan of government were primarily federalist in nature (its advocates wanted to guarantee the equal voice of smaller states and thus proposed to weaken the central government and assert the powers of the state governments), Paterson also defended the Plan on aristocratic grounds.  If they did as the New Jersey Plan proposed, then this new “Congress will act with more energy and wisdom than the proposed national legislature” found in the Virginia Plan, because it was “fewer in number, and more secreted and refined by the mode of election.”  The Convention collectively rejected these arguments.  

The Convention also rejected an attempt by South Carolina, on June 21, to allow each state to decide for itself how to elect the Lower House of the legislature.  If they had adopted this suggestion, democratic states like Massachusetts could have democratic elections if they chose, and aristocratic states like South Carolina could institute more selective modes of elections if they chose.  John Rutledge tried to make his point by appealing to the vanity of his colleagues: “If this Convention had been chosen by the people in districts, it is not to be supposed that such proper characters would have been preferred.”  Since the Convention’s delegates had been chosen by their respective state legislatures, and since the legislatures had done such a fine job of selecting capable men, that was proof of the superiority of this mode of election.  When the question was put to a vote, the same three small states joined South Carolina in the attempt to allow each state to decide how to choose its members to the lower branch, but they were defeated by the six other states (Maryland was divided). Immediately following that vote, the question was put to the Convention for the final time: Should the Lower House be elected by the people?  Nine states voted yes; New Jersey voted no and Maryland was again divided.

Selection of the Upper House

The selection of the Lower House had been settled after some serious debate, but popular elections had enjoyed a strong majority of consensus throughout.  The election process for the Upper House was decided with even less debate and even more consensus.  On May 31, the Committee of the Whole overwhelmingly rejected the Virginia Plan’s proposal that the second house should be chosen by the first house out of nominees submitted by the state legislatures. But the delegates did not immediately agree about the mode of election that would replace that proposal, and “a chasm [was] left in this part of the plan.”  On June 7, the Committee of the Whole debated more fully how the Senate should be selected.  Dickinson recommended that the election of senators should be made directly by the state legislatures.  One of his reasons for this proposal was to promote federalism (because “the sense of the states” would be best captured by having state governments choose federal officials).  But his other reason was based on his optimistic notion of how to construct an “upper house” of Congress: “he wished the Senate to consist of the most distinguished characters, distinguished for their rank in life and their weight of property, and bearing as strong a likeness to the British House of Lords as possible.”  He thought that the best way to ensure that this body would have the requisite qualifications was a selection by the state legislatures.

James Wilson and Gouverneur Morris were the only ones who seemed to favor a direct election for the upper branch as well as the lower, but a popular election for the Senate was never seriously considered by the rest of the Convention.  The other delegates who argued against Dickinson’s motion primarily did so on nationalistic grounds rather than democratic ones.  Some of the members feared that, if senators were chosen directly by state legislatures, then the Senate would probably pursue the policies of the individual states rather than a national agenda.  Other members saw a selection by state legislatures as a threat to proportional representation in the Upper House.  Their reasoning went like this: If state legislatures chose senators, then each state (however small) would have to have at least one senator.  If each state had at least one senator, and senators were distributed proportionally among the states, then the senate body would be too large to serve the function of an upper house (which was supposed to be a small, elite body that exercised cool deliberation).  For that reason, several individual delegates were opposed to selecting senators by state legislatures.  Yet when the question came up for a vote in the Committee of the Whole, Dickinson’s motion was passed unanimously.   When it was debated in the Convention on June 25, the only serious objection to the proposal seemed to be that it would destroy the proportional representation that the large states were still trying to achieve.  Nonetheless, the election of the senators by state legislatures passed overwhelmingly in the Convention, 9-to-2.