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Blind Tradition? Why Bentham Was Wrong about American Bicameralism

Conventional wisdom maintains that US national and state governments unthinkingly adopted bicameral legislatures for their new governments because of their familiarity with, and affection for, the British model. Jeremy Bentham dismissed second chambers as due to prejudice, “authority-begotten and blind custom-begotten prejudice.”

Lewis Rockow mouthed conventional wisdom in a 1928 article in the American Political Science Review:

When the American colonies separated from England they followed the English example, for they recognized that the government of England, imperfect as it was, was nevertheless less predatory and oppressive than any other government. With the House of Lords they had no quarrel; their complaints were directed entirely against the monarchy; so they rejected the monarchy and retained a second chamber.

First, as a side note, while the Declaration of Independence aimed its indictment at the British Crown, the decades-long struggle of the colonists was with the Parliament regarding the nature of the great constitutional principle of 1688, parliamentary representation.

The idea that the US states blindly deferred to tradition in adopting legislative bicameralism, however, is not accurate. Under the Articles of Confederation, the national congress held a unicameral form. Further, three states had unicameral legislatures early on, the most notable was Pennsylvania, but Georgia and Vermont initially adopted unicameral legislatures as well.

The proposal to adopt a bicameral legislature in Pennsylvania spurred a great deal of debate. The controversy in Pennsylvania prompted James Wilson to develop a new theoretical justification for republican bicameralism, that is, when both chambers represented the same people. Up to that point justifications for bicameralism hinged on reserving the second chamber for legislators selected on a different basis than the first chamber. Second chambers, in turn, reflected different interests or subpopulations. For example, the aristocracy in Great Britain, and state governments in the U.S. Senate.

As Gordon Wood and Marc Kruman point out, constitutional designers at the state level as often as not dismissed the British model, not least because U.S. states had no aristocracy with which to people a second chamber. Most states republicanized both legislative chambers in that they did not reserve second chambers to represent geography rather than population. It is worth recalling that arguments concerning state sovereignty justified representation of states in the U.S. Senate. Geographical subunits of states, however, never enjoyed similar standing.

Bentham believed that Americans adopted the bicameral legislature out of blind traditionalism. But he also believed that bicameralism created unnecessary redundancy. If both chambers in a bicameral legislature represented the same people, then the addition of the second chamber was at best “useless” and, at worse, a complication that slowed down or deterred necessary legislation.

Bentham ignored that legislatures aggregate information as well as aggregate preferences. James Wilson argued that two bicameral chambers, both fully republicanized and representing the same constituency, can, in circumstances, aggregate information better than a single chamber. To wit, “two heads are better than one.” To be fair, Wilson ignored the possibility of informational free riding between bicameral chambers, but he was doing pretty well for his time, so we’ll give him a pass on complicating issue.

Further, contrary to Bentham, taking the same set of legislators, and acoustically separating them in different chambers, can stimulate legislative innovation rather than suppress it. Business firms often set up two or more teams to work on the same problem or innovation. The expectation is that acoustically separated groups will generate different initial insights, then develop different ideas for comparison. This often improves the results that would emerge if they all collaborated as one group. In “strong” bicameral systems, when each chamber can initiate legislation as well as kill legislation, it is a bicameral system can produce at least as much legislation, if not even more legislation, than a unicameral system.

The irony is “blind custom” held Bentham captive, not the Americans. Bentham could not conceive of bicameralism outside of the British experience, so he misdiagnosed American bicameralism for the ills of British bicameralism. His captive imagination blinded him from seeing that Americans refounded their bicameral institutions on fully republican grounds for fully republican purposes.

Reader Discussion

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on February 08, 2018 at 10:30:10 am

I wonder if this is a case of the Political Science hand not knowing what the History hand is doing? Professor Rogers writes with his usual clarity, but at least among Historians who study this stuff, no one familiar with the historiography would argue that bicameralism was an unthinking decision adopted out of blind adherence to British tradition. This is an excellent essay making the case for a familiar position. Rogers cites the right scholars—Kruman in particular is very good. But he could also have cited the much earlier study by Willi Paul Adams.

Perhaps I am missing something? Are there any modern scholars who make the case against which Rogers argues here?

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Kevin Hardwick
on February 08, 2018 at 10:31:51 am

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on February 08, 2018 at 13:33:35 pm

I think this is what you're looking for. It a brief paper on John Adams and the Massachusetts Constitution of 1780. It's by George C. Homans and is in the Proceedings of the American Philosophical Society, Vol. 125, No. 4, August 21, 1981. It's on JSTOR. https://www.jstor.org/stable/986331?seq=3#page_scan_tab_contents

Homans says Adams is responsible for our bi-cameral legislature. He states (correctly, I think) that Adams' bi-cameral legislature was intended to reflect the class division between the gentlemen of trade and the professions and the 40 shilling freeholders who were the at large electorate.

I won't hold myself out as a scholar but as a sort of precise to the article you should know that the Bay Colony had arrived at a very functional form of constitutional democratic republicanism by 1640 as reflected in the Massachusetts Liberties of 1641. From 1630-90, the Bay Colony functioned as a free state. It offered nominal allegiance to the king but no allegiance to Parliament or the notion of the king-in-parliament as it developed after 1660. In 1638, 1662 and 1689 the Bay Colony was on the verge of declaring its independence from England.

The basic outline of Massachusetts colonial government was that there were the governor, eleven assistants (usually called magistrates after 1635) and the chamber of deputies with two, sometimes three, deputies from each town.

At the insistence of the settlers, after 1632 the governor was elected annually and at large from candidates drawn from the magistrates. Vacancies amongst the magistrates were filled at large and annually by majority vote of the freemen from a list of nominees approved by the governor after consulting with the magistrates and in light of the governor's sense of the preferences of the deputies. The deputies were elected annually by the town meetings. Together, the magistrates and the deputies formed the Great and General Court, which also functioned as an appeals court and occasionally as a court of first impression. Further, the governor and his assistants could not tax or appropriate funds without the approval of the majority of the deputies. All this had been established by 1635.

The magistrates also functioned as the judiciary and were augmented by appointees from the several towns to the position of justice of the peace. This was the equivalent of the justices of the superior and district courts.

Underlying all this was the fact that the colony government was a government of limited jurisdiction. In purely local matters like trespass, breach of the peace, property taxes, property line disputes and in all matters where the amount in controversy was less than 20 shillings, the the Great and General Court had no jurisdiction. Further, the towns controlled the militia.

After 1690, the King appointed the governor and the royal governor appointed the magistrates, now called "counsellors," and the judiciary. The governor and his counsel had a veto over the actions of deputies but the towns retained exclusive jurisdiction over town matters as outlined above. The chamber of deputies remained in control of taxation and appropriations and so could exercised a check on the governor and assistants because the royal appointees and judiciary were paid exclusively from funds raised and appropriated by the chamber of deputies. The royal governor and his appointees soon learned not to bite the hand that fed them too hard.

Adams's notion of a bicameral legislature representing the gentlemen of trade and the professions in the Senate and the 40 shilling freeholders in the House accurately reflects 140 years the experience in Massachusetts.

One of the great defects in the US Constitution of 1789 is that only bills for raising revenue have to originate in the House. The House would be stronger and more representative if both revenue and appropriations bills had to arise in the House.

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EK
on February 08, 2018 at 17:28:49 pm

EK:

Interesting info (as always).

"The House would be stronger and more representative if both revenue and appropriations bills had to arise in the House."

1) Can you (briefly) expand upon that?
2) Given that Senate in bicameral system represents interests of the States, SHOULD the House be stronger given the overall scheme?

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gabe
on February 08, 2018 at 17:57:26 pm

EK--

I hope it is clear I intend no disrespect to Professor Rogers, whose essays are always worth reading. He clearly perceives a need to reiterate the argument he makes. I wrote partly just out of surprises that such a move is necessary. I am curious what motivated him to write.

I am quite willing to believe that some scholars writing before 1980 or so were unaware of the more recent scholarship on early American constitutions, and so adhered to the Benthamite position Rogers describes. I know the historical literature moderately well--and it surprises me that anyone today would advance the proposition that bicameralism was something that American constitutional framers in the 1770s and 1780s unreflectively adopted out of reverence for British constitutionalism. I think today the scholars in the intellectual tradition I follow are well aware of, for example, the debate over the first Pennsylvania constitution. I first encountered that in the work of Jack P. Greene and Owen Ireland, both of who wrote well before the 1980s.

But that's the rub, isn't it? The scholarly conversation I follow closely is hardly the only game in town, and maybe there are other conversations out there in which active scholars writing today ARE trying to defend the Benthamite position. So a) I am surprised Rogers felt it necessary to advance the argument at all, and b) curious regarding with which scholars he is engaging (if any).

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Kevin Hardwick
on February 09, 2018 at 13:03:02 pm

The House of Commons in England gained control of government in England between 1620-40 using its power of the purse.

In the 17th C., the royal government's primary source of revenue was tonnage and poundage. These were the duties and taxes levied on imports and exports. Long before 1624, the custom had evolved that upon the ascension of a new monarch Parliament would vote tonnage and poundage to the new monarch for life. The receipts were expected to fund normal government operations and supplement the lifestyle of the monarch. Any additional appropriations took the form of subsidies which the crown had to request from Parliament. Further, it had long been established that only Parliament could raise or lower taxes.

By 1620, the gentry, the untitled upper class that began developing after the dissolution of the monasteries 1533, had become a recognizable political estate distinct from both the Crown and the Lords Spiritual and Temporal. Their voice in government was through the House of Commons enforced by the power of the purse. After 1620, Coke, Selden, Pym, Hampden and many others began organizing Commons in opposition to the Crown and the House of Lords (all bishops were ex officio members of the House of Lords and the king was the head of the Church of England). In general, Commons was opposed to the radical Stuart notion of the divine right of kings as well as many of the Stuart's particular domestic, foreign and religious polices.

In 1625, Commons began by voting tonnage and poundage to Charles I on an annual basis rather than for life in order to discourage Charles's interest in taking the Infanta of Spain or a French princess as queen. Commons also began withholding subsidies and conniving with Lords to pass bills of attainder against certain royal officials and favorites. Charles soon resorted to forced loans and other extra-constitutional means of raising money. Meanwhile, Charles was also very interested in establishing a common form of worship in the CoE that incorporated rituals, traditions and forms of the Catholic Church that were now considered superstitious popery by the Presbyterians and Independents who dominated Commons. Accordingly, Commons remained oppositional, Charles stopped summonsing parliaments and civil war broke out in 1642. The Independent faction in Commons won in August 1648. The Independents created the Commonwealth but their political base was too narrow and the Commonwealth soon degenerated into a military dictatorship, the Protectorate.

The point here is that Commons became the center of power in English government because it controlled both the power to tax and the power to spend. Commons had what amounted to line item control over the budget as well as sole authority to raise the revenue to fund the budget. Colonial government in the Americas followed the same pattern in those colonies that had commercial charters. Royal colonies and those with propitiatory charters developed somewhat differently but were influenced by the colonies with commercial charters.

From 1789 until the Civil War, government in the US was funded chiefly by tariffs and duties, the equivalent of tonnage and poundage. These kinds of taxes have always been of particular interest to the business community. In such matters, the House and Senate delegations of the individual states were almost always in agreement. Monopolies were rare, the federal government had little or no direct control over individuals living in their states and no interest in raising direct taxes on a per capita basis. As a result, the House never developed any real institutional power independent of the Senate and Executive.

This lack of a tradition of institutional power seated in the House did not become problematic until after the progressive amendments of 1913. In 1913, the progressives complained that the Senate was bought and paid for by private interests, but experience has shown that directly electing senators changed nothing. As the focus on economic matters shifted from the state economy to the economy of the nation and then to the global economy so the interest of the Senate shifted from the states to the nation and to the world.

In truth, it is rather easier to buy 100 senators who sit for six years than it is to buy 435 Members of the House who are elected every two years. Further, the House lacks any direct control over appropriations and has no constitutional role in the appointment of judges and officials in the Executive branch.

The 16th Amendment should have given the House more power but in 1913 the House was unprepared to exercise that power and the practice soon developed of using emergencies to drum up support revenue measures. WWI, the Depression, WW II, the great and ongoing international communist conspiracy and the interests of empire have all been used to subordinate the House's power to raise revenues to the particular interests of the Senate and the Executive.

The Executive functions best in cooperation with the Senate and the first job of the Judiciary has always been to tend to the institutional interests of the Executive and Senate. Accordingly, the Senate and Executive have gone from representing the interests of the state oligarchs to those of national oligarchs and finally to representing those of international oligarchs. This was tolerable as long as the central government was truly one of limited jurisdiction. But it is unacceptable in a government that exercises general jurisdiction through the supremacy clause coupled with a recklessly broad interpretation of the commerce clause.

Presently, it would appear that revenue and deficits don't matter so the House doesn't matter unless there has been a falling out between the Senate, the Executive and the Judiciary.

This is a sad state of affairs. Only the House represents the particular interests of the people living in the US and it is the least powerful branch of government. The House needs something like a line item veto.

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EK
on February 09, 2018 at 13:40:02 pm

The case for Federal bicameralism can be made based on protecting the rights of small states from the large states by equal representation in the Senate. Of course the Senate now represents political parties rather than state governments which are often controlled by a different party. The bicameralism of state government is more difficult to justify.
There is clear historical evidence that most state constitutions were designed to have a senate representing Adam’s “natural aristocracy” (Lords) to protect against the tyranny of the majority (the Commons). It is correct that Pennsylvania, Georgia and Vermont had unicameral legislatures. Pennsylvania is a good example of these anomalies. The Pennsylvania Constitution (1776) was the result of representation from all the counties. This meant that the Scotch-Irish and Germans from the western counties could out-vote the wealthy merchants and landowners in the east (Philadelphia). The constitution included a unicameral legislature and no state governor. This outraged the eastern establishment which worked tirelessly to have it repealed. In 1790 it was replaced it with one modeled after the federal constitution. (I recommend - J.Paul Selsam, The Pennsylvania Constitution of 1776, University of Pennsylvania Press 1936).
The uppity western farmers were punished with a federal whiskey tax and when they rebelled, Washington and Hamilton led an army to put them in their place (Whiskey Rebellion). The whiskey tax was repealed 1801 after the Federalist lost power in Washington, but Pennsylvania lost their truly democratic constitution.

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Jon
on February 09, 2018 at 14:13:22 pm

EK:

Thanks AGAIN.

The transition of the focus of the Senate from "States Diplomats" to National *overseers* and finally to Global fiduciaries (to employ a euphemism, if I may) has always intrigued me. Some in the commentariat and the academy would argue that the rise of National Parties compelled this movement; I have never fully subscribed to that.

Your assertion strikes me as more substantive. I must digest this and attempt a syncretic (at least in my own muddled head).

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gabe
on February 10, 2018 at 09:51:21 am

In my opinion, all that is of a piece with the almost irrebuttable presumption that the ur-source of the American Revolution can be found in the Glorious Revolution of 1688, the English Bill of Rights and liberal British Whig politics after 1708.

My opinion is that Petition of Right Parliament of 1628 (3 Car. 1 c. 1) and the revolution led by Commons of 1620-48 are equally important. After all, the English Civil Wars were the crucible that produced both liberal British Whiggism and American constitutional democratic republicanism. The two have a common origin but they are not the same. The Whigs are the descendants of the Presbyterian faction in the Long Parliament and the American democratic republicans are the descendants of the Independent faction. All the American Revolution accomplished was to reunite the Whigs and the republicans under a constitution that was heavily weighted in favor of the Whigs. This worked only as long as the Whig dominated central government was truly limited.

The goings on in American politics over the last generation often bear a striking resemblance to the goings on in the Long Parliament between 1643-48.

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EK
on February 10, 2018 at 11:05:58 am

The standard argument for bicameralism in 18th century Greater Britain (ie. including the former colonies) was that it mitigated the influence of demagogues. The standard 18th century analysis of democracy, on both sides of the Atlantic, emphasized the vulnerability of democracy to demagoguery. Commonwealths died via the distemper of demagoguery. The most current scholar to discuss this is Michael Signer.

Criticism of the unicameral legislature created by the 1776 Pennsylvania constitution focused on this standard criticism. See, for example, the arguments of Benjamin Rush.

All of this is pretty familiar in the historical literature --as you note, at least since the 1930s. I don't think this reduces in any simple fashion to the thesis that American statesmen adopted a bicameral structure at the state level out of blind, unthinking respect for British tradition.

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Kevin Hardwick

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