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Real Purpose of the Senate: To Check the Actions of the House

Niccolò Machiavelli was one of the principal architects of American constitutionalism. A heterodox thinker in his day, Machiavelli observed in his Discourses on Livy (1531): “Those who blame the quarrels of the Senate and the people of Rome condemn that which was the very origin of liberty.” In other words, the institutionalized conflict between the optimates and populares was essential to preserving the Roman Republic. Machiavelli was the first significant figure in the Western tradition to acknowledge the importance of conflict in sustaining a body politic. And his understanding of the relationship between conflict and political order would eventually influence the creation of the American Senate in 1787.

Yet most people today are unfamiliar with Machiavelli’s influence on the Senate. For example, consider the recurring debate over the institution’s undemocratic nature. Both critics and fans of the Senate assume it was created to serve the interests of the states qua states. Jonah Goldberg summed up this point recently asserting, “the Senate was created to represent the interests of the sovereign states.” The only issue of contention in the debate is whether one thinks this is a good or bad thing.

Yet the conventional wisdom is mistaken, and impedes our ability to assess of how the Senate at present is, or is not, working.

The Options the Founders Considered

The U.S. Senate exists for one overriding reason: to check the popularly elected U.S. House of Representatives. Throughout the summer of 1787, James Madison and his fellow delegates to the Federal Convention highlight, again and again, the Machiavellian observation that institutionalized conflict was essential to the preservation of the republic. Trying to inject an updated understanding of Machiavelli’s dictum into the heart of the new federal government, they created a Senate whose institutional features—size, membership-selection process, nature of representation, length of term of office, compensation—are properly understood only in relation to the body’s House-checking role.

If the Senate were going to check the House, its members could not be drawn from the same source. That meant senators could not be popularly elected. If they were, they would end up being subject to the same interests and passions as their House colleagues, gravely impairing their ability to be a corrective. According to Madison, “In the states where the Senates were chosen in the same manner as the other branches . . . the institution was found to be no check whatever against the instabilities of the other branches.”

Much less would the Senate be able to check the House if its members were dependent on the House for their seats, which was initially a feature of the Virginia Plan. Almost all of the delegates to the Convention opposed having House members appoint senators; the latter might feel beholden to the former. Connecticut’s Roger Sherman reflected their general sentiment, stating that he “was of opinion that if the Senate was to be appointed by the first branch and out of that Body that it would make them too dependent, and thereby destroy the end for which the Senate ought to be appointed.”

Once the delegates ruled out popular election and House appointment as being incompatible with the Senate’s checking role, having each state legislature choose that state’s U.S. senators was the only option they had left. Admittedly, both Madison and fellow Virginian Edmund Randolph originally opposed state selection, favoring instead the selection of senators by the House. Their reason was that state lawmakers were even closer to the people than House members would be. Consequently, allowing state lawmakers to select U.S. senators would readily carry the popular interests and passions into the Senate whereas selection by the U.S. representatives might do so to a lesser degree. The two men opposed popular election of senators as a recipe for bringing this ill-effect into the Senate quickest of all. Each option had its downside for Madison and Randolph. That they, in the end, set aside their qualms about state selection shows how paramount was the Senate’s checking role in their minds.

The delegates’ desire to have the Senate check the House also dictated that it have a smaller membership than the House. They believed that there was something intrinsic to large legislative assemblies, separate and apart from the way their members were selected, that led them to conduct their business in similar ways. In Federalist 62, Madison observed,

The necessity of a Senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions . . . a body which is to correct this infirmity ought itself to be free from it, and consequently ought to be less numerous.

Similarly, Pierce Butler suggested that the Senate should be small enough “as to be exempt from the passionate proceedings to which numerous assemblies are liable.” Butler’s fellow South Carolinian, Charles Pinckney, was even more specific, arguing that “If the small states should be allowed one senator only, the number will be too great, there will be 80 at least.”

Why They Thought Smaller Was Better

North Carolina’s William Richardson Davie summed up the problem such views created for those delegates who supported the allocation of Senate seats on a proportional basis:

Allowing the legislators to choose the Senate, and establishing a proportional representation in it, seemed to be impracticable. There will according to this rule be ninety members in the outset, and the number will increase as new states are added. It was impossible that so numerous a body could possess the activity and other qualities required in it.

As Davie surmised, the widespread opposition to a large Senate among the delegates precluded a Senate in which seats were allocated proportionally by population. Assuming each state was guaranteed at least one member, the total number of senators proportionally allocated based on population quickly surpassed the size with which the delegates were comfortable.

Madison hinted on June 30, 1787 that he could live with equal representation in the Senate. However, he argued that the delegates should take steps to make senators independent of the states if the convention adopted equal representation. In other words, Madison did not want senators to feel pressure to represent the states inside the federal government. The indirect mechanism by which popular interests and passions would enter the Senate could then lead senators to refrain from checking the popularly elected House. Madison predicted that failing to make the Senate independent of the states would turn the institution into “another edition of Congress” (that is, the Confederation Congress whose members were selected by, and dependent on, the state legislature that selected them).

Independence, the Highest Senatorial Value

Significantly, the small-state delegates agreed with Madison. The Convention’s adoption of equal representation is what flies in the face of the assumptions of Goldberg et al today: Equal representation was intended to make senators independent of the states that selected them. The delegates approved longer terms for senators than what they had already approved and compensation out of the federal treasury. They also opposed making senators subject to instruction and recall by the state legislatures that selected them.

What is important is not that the Senate served as an institutional representative of the several states in the federal government as a result of state selection and equal representation. Instead, it’s that a Senate so conceived would interact with, and counteract any unwise decisions by, the House. This, in turn, would help to control legislative majorities and frustrate presidential action. While the delegates did indeed disagree about how best to ensure that the Senate could check the House, all had this checking function in mind. It was crucial to establishing a new form of republican government that would be stable but flexible.

Taken separately, the House and Senate are imperfect institutions. But this is precisely the lesson that Madison and his fellow delegates took from Machiavelli. Taken together, the House and Senate are necessary ingredients for institutionalized conflict. They make possible a properly constrained Congress rooted in the consent of the governed.

Reader Discussion

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on December 04, 2018 at 10:48:27 am

The problem being solved in 1787 was the tribalism of the states under the Articles of Confederation. As part of the solution, the Senate was designed both to check the passions of the people as reflected in the House and guard against an overweening federal government as it related to the power of the states as quasi-independent sovereigns. It is no secret that the founders were wary of the mercurial nature of the people; only half of one branch of government is directly elected for example. The Progressive Movement's 16th and 17th Amendments disrupted the original balance struck and changed the role Senate. It is not clear that the Senate's role is to check the passions of the people under the new arrangement, and perhaps that's a good thing, given the rise of a relatively unresponsive forth branch of government, the administrative state.

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Ron Johnson
on December 04, 2018 at 12:47:08 pm

I think Ron Johnson strikes the proper balance above. Certainly, Madison and others were concerned, and properly so, with the propensity of the people for inflamed passions, and the pressures upon elected officials to conform to those pressures but it is also quite clear that the Crafters were equally concerned with the potential for Federal overreach and suppression of State power over internal affairs (I'll not call it "sovereignty" - even quasi).

Wallner may be a biot "selective" in his cited quotes. Did not madison also opine that this was to be a "partly Federal..."

"It becomes all therefore who are friends of a Government based on free principles to reflect, that by denying the possibility of a system partly federal and partly consolidated, and who would convert ours into one either wholly federal or wholly consolidated, in neither of which forms have individual rights, public order, and external safety, been all duly maintained, they aim a deadly blow at the last hope of true liberty on the face of the Earth."

and

"The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security."

and

"The legislative department is everywhere extending the sphere of its activity and drawing all power into its impetuous vortex."

Clearly, Madison was also concerned with the possibility of "consolidation" and the tendency of government to overwhelm any contending locus of political power. Thus, the Senate was ALSO intended to serve as a brake upon the ambitions of the Federal Government. Indeed, (although I can no longer find the quote) it was argued that the Senate would be comprised of 'States Diplomats".

It is not either / or but rather BOTH as proper and intended objectives of the Senate and the Crafters.

BTW: Nice take on Machiavelli and the Senate. Ole Nicci was pretty astute.

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gabe
on December 05, 2018 at 05:21:54 am

Informative essay, Mr. Wallner, and nice of you to point out that Jonah Goldberg got wrong yet another political point. The Dem's, too, misunderstand the origins and the continuing logic of equal representation of states in the Senate.

Finally, it is intriguing that, while the much smaller Senate was intended as a check on the popular will of the much more numerous House, there was indecision among the Founders as to whether selection of Senators by the more multitudinous membership of state legislatures rather than the less multitudinous House membership would enhance or diminish that anti-populist effect. It seems, in either case, that the Founders thought there was a direct correlation between the numerical size of a decision-making body and its proclivity to the dread of factionalism, an empirically-based speculation which suggests that the Founders would have strongly opposed the 17th Amendment. That Democrats, the party of faction and special-interest groups, sponsored, enacted and continue to strongly support that amendment is empirical evidence that the Founders speculation was correct.

That Machiavelli empirically intuited from his reading of the Greeks and the Romans the efficiency and stabilizing virtue of governing with checks and balances is simply an amazing reflection of his perspicacity and would suggest that he was a pragmatic republican who saw effective, stable governance as the foundation of social progress.

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Image of Pukka Luftmensch
Pukka Luftmensch
on December 05, 2018 at 10:20:53 am

Excellent, and I'm sorry to say that had you asked me the question last week, I would have given the Goldberg explanation.

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QET
on December 05, 2018 at 11:17:13 am

I don't think that Goldberg is WRONG (OMG, I actually said that); rather his emphasis is far too strong.
The Senate was also intended as a means for the States to protect against encroachments from the Central Government AND it most certainly was intended as a brake upon the popularly elected House.

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gabe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.