With the delegates attempting to hammer out a new government, the question becomes if the new government would be one of the people or one of the states.

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Hello, and welcome to the political history of the United States.

Episode 5.12 the Fate of the States within the first few days of the Constitutional Convention, a few things had to become clear.

First, the Confederation was dead bound for the scrap heap of history.

Although there was some marginal pushback, really it had only been marginal at best.

Those in the country who were most likely to have objected to the death of the Confederation were largely absent from the Convention, instead choosing to boycott what they viewed as an invalid.

Proceeding with this decision, made as monumentous as it was, things became far more complicated.

James Madison had done a good job, largely with the help of Edmund Randolph and others in his nationalist clique, of ensuring that his Virginia plan was presented as the first alternative to the old system.

The problem, however, is that although his plan provided a skeletal structure for a new government, one made up of three distinct branches, it was lacking in many of those critical details of exactly how such a system would function.

Chief amongst these most pressing questions was the question over representation.

Madison had really believed that the smaller states would cave into the natural order of things and waive that one vote per state rule from the Confederation in the interest of their larger neighbors.

Today we are going to spend our time moving through those issues and seeing just how the delegates would get past what seemed at times to be impossible hurdles.

Because as it would turn out, the smaller states were a whole lot less excited about waiving representation than Madison would have hoped.

Yet at the same time, everybody understood the importance of what they were doing and knew the stakes if they failed.

Everybody in Independence hall knew that the biggest issue before them was the question of over how the legislature was going to function, and more specifically, the question of how representation would work at all.

This question was, at its very core, a re evaluation of exactly what the Republic would be and where exactly sovereignty would sit, be it either with the states or with the national government.

This question presented the very real problem that although most of the people in the room were nationalists, there were several different breeds of nationalists.

However, as I think most of us today can understand, rather than choosing to jump in and tackle the obvious elephant in the room, the delegates instead turned to the question of the executive.

This is an understandable position.

Sure, there were going to be disagreements when it came to the Executive office, but everybody expected that those, as difficult as they may be, were things that could be worked out.

Maybe if the delegates could get some momentum going by figuring out the executive, that would carry them through what they all knew was going to be the far more contentious battle over the Question of representation.

Although the national government under the confederation had lacked any kind of chief executive, the idea was not wholly foreign to the delegates.

Indeed, all of the states, with the exception of Pennsylvania, had a chief executive at their helm.

Pennsylvania had drafted what was easily the most radical of all the state constitutions, eliminating both the office of the governor as well as their upper house.

The state was, in effect, operating as a true republic, with power vested entirely in the assembly.

As much fun as it is to pretend that the delegates who were then sitting in Pennsylvania could potentially give that state's system some consideration on a national scale, absolutely nobody was interested.

In fact, the Pennsylvania government was pretty close to the opposite that Madison, and indeed most of those in attendance were shooting for.

The Virginia plan itself offered little in the way of guidance on what the new executive should be.

The only details that it really provided is that this person should exist and that choosing them should fall to the legislature.

That was it, nothing more.

The question over a national executive was always going to be a somewhat prickly one.

Sure, the delegates, Pennsylvania notwithstanding, had plenty of experience with picking governors as their executives.

However, it was pretty well accepted that none of them were in danger of becoming a monarch.

A national executive, though, well, that was a different story.

Just a few years earlier, if you will recall, the states were very busy rejecting the sovereignty of a monarch, even if it was generally agreed that a national executive was necessary.

It was likewise agreed that any such position would need to have its power curbed insofar that the person occupying said office would not elevate themselves to the position of a king.

Unsurprisingly, there were plenty of delegates who had thoughts on the matter.

James Wilson of Pennsylvania urged that the power should be placed into the hands of a single person, rather than a committee.

Wilson well remembered that saying that the colonies rebelled against the king was a bit of a retcon.

The revolution was always an uprising against parliamentary supremacy, right up until the time that it wasn't.

And the colonists decided that George III was, because of that, a tyrant.

Today, the idea of the power of the executive laying in a single individual's hands seems to be second nature.

Roger Sherman from Connecticut argued that the executive should serve the legislature, and that therefore, the number of executives was a power that should remain within the legislature.

This means that if Sherman got his way, the Number of people in the highest role could shift depending on circumstances.

Maybe in a time of war, you narrow down the executive to a single individual, something akin to the dictatorship of the old Roman republic.

In times when domestic strife afflicted the country, maybe you go with more executives to fan out and help restore the peace.

The memory of the war loomed large here.

What he really seemed to be advocating for, something that we already know other men like John Dickinson wanted, was a government based upon the British model.

It was likewise over this question of whether or not there should be a single or multiple executives that we see a breach begin to appear in the Virginian camp.

Although James Madison personally supported a single executive, Edmund Randolph, the man who had thus far been the messenger for the Virginia plan, was now openly supporting multiple executives, believing that a single operator was a recipe for monarchy.

The divide between these two camps was significant.

If men like Randolph Pinckney or Elbridge Gary believed that a single executive was going to threaten despotism, then men like James Wilson believed that rule by a committee would lead to nothing but unnecessary delays, as internal squabbling would become the order of the day.

Wilson firmly believed that the United States needed a strong, energetic executive and that anything but a singular figure was unlikely to make that happen.

Now, before we move on, I do want to take a moment to address an elephant in the room for all of these delegates.

Well, by elephant in this case, I mean George Washington.

As the debates ran over exactly what the executive branch was going to look like, it was lost on nobody that the future chief executive was sitting in the room right there with them.

Everybody just kind of assumed that Washington was ultimately going to fill that role because, well, when you've got George Washington in your back pocket, who else could it possibly be?

Madison mentions in his journal that when Wilson put forward his motion for a single executive, there was a considerable pause in the room that was only broken up by Benjamin Franklin kindly suggesting that maybe they should all talk it out.

Now, recall that the entire reason that they had chosen to tackle the question of the executive first is because they all knew what a firestorm the debate over the legislature was going to bring.

This was supposed to be their way of maybe opening the door for future progress.

Madison, reading the room and understanding the direction that things were heading, quickly pivoted the conversation away from the Question of how many executives there would be and onto the question of how the executive would be chosen and their term length.

The question of how the executive would be chosen was absolutely ripe for an all out battle.

This issue is going to tap into so many of the problems that we are going to see plague this convention over its run.

Concerns over representation was something already on the minds of those in Philadelphia.

Madison feared the perceived tyranny of the majority.

He believed that is what had so thoroughly undermined the confederation.

In his Virginia plan.

Therefore, he gave the legislature the power of selecting the chief executive.

James Wilson, though, disagreed with this, instead believing that the executive should be chosen by the people.

This again moves us to that question that had become so core to the debates over the Constitution.

Specifically, where did the power lie?

Roger Sherman, for instance, argued that if the executive branch existed to serve the legislature, then it should be the legislature that selects the chief executive.

The will of the people was reflected towards their delegates that they sent to the legislature in the first place.

A directly elected executive would be counterintuitive as it would position the chief executive as being independent from the legislature.

Now, Wilson, here, it should be noted, was not exactly asking for direct elections as based on a popular vote, but rather for a system more akin to what we actually ended up with.

The people would vote for the electors who would then choose the executive.

Either way, however, what Wilson was calling for represented a significant shift in the thinking of the convention.

Under his plan, the chief executive would derive their authority directly from the people rather than from the states.

As the debates continued over the structure and selection of the executive, the real core issue of the entire convention was laid bare.

Simply what was the role of the states in the new government?

Although pretty much everybody in attendance understood that the power of the states needed to be curbed, there was far less agreement on exactly what that meant.

John Dickinson advocated that the nation's prosperity required that the power remain in the hands of the states.

Dickinson fully believed that the national government should retain at least a degree of dependency upon the state legislatures.

In order to establish this reliance, Dickinson made a motion that it should be the state legislatures that retained the power to remove the executive from office, while at the same time making the interesting recommendation that the Congress should be bicameral, with one house popularly elected and the other chosen by the states.

The delegates were quick to reject Dickinson's recommendation for the removal of the executive and would just ignore his recommendation for the Congress, as nobody was ready just yet to wade into those shark infested waters.

If you are Listening to this and thinking to yourself that this entire process seems to be really disjointed, well, you're not wrong.

The delegates would essentially beat the horse to death without really reaching solid conclusions before moving on to something else, largely out of exhaustion.

Then periodically, they would loop back around to those topics and take them up again in the middle of a debate on another topic entirely.

The convention was, and indeed would remain a particularly chaotic affair from start to finish.

As questions continued to swirl about just how the office of the chief executive would be chosen and on just how many there would be filling that office.

The delegates soon came to the question of the scope of the power of the executive.

What were they going to allow him to do?

What was the purpose of the office?

Recall that at the center of Madison's Virginia plan was what he referred to as the legislative negative, which amounted to a congressional veto that could penetrate the states and invalidate state laws that were counter to the national government.

However, such a legislative veto did not exclude the possibility of an executive veto.

The eighth resolution of the Virginia plan granted the executive and members of the judiciary a right of review and ultimately the right to negate legislation immediately.

Benjamin Franklin attacked this act, believing that such a provision opened up the legislature to extortion from the executive.

He explained that back during the colonial government in Pennsylvania, where the governor held an executive veto, it was a common occurrence that the governor would hold legislation hostage in order to achieve his own ends.

Oh, you want your law passed?

Well, then I recommend that you also vote me a raise.

Franklin would expand on this, stating his wish for a plural executive before launching into an attack on the salary of executive officials, believing that there should be none.

Franklin, who was in very poor health by this point, had written on the topic and had his fellow Pennsylvanian James Wilson read his remarks to the convention Quickly, it was decided that the executive and the judicial branch should remain distinct from each other.

Likewise, the idea of an absolute veto for the executive was out, although it would take another few weeks before the delegates would ultimately accept Madison's own suggestion that the executive have a veto, but that the veto itself could be overruled if two thirds of Congress voted against it.

Delay as they might, with the delegates exhausted over the discussion of the executive branch and recognizing the looming battle of the legislature, they decided that the time had come to tackle the biggest question in the room.

Nobody was under the illusion that this was going to be easy.

It was recognized by all involved that the questions raised over the nature of the legislature would very much define the future of both the states and of the nation itself.

As historian Carol Birkin writes in her book A Brilliant Solution, Inventing the American Constitution.

Although disagreements and frustration had been present during the debates over the executive, throughout that process, things had more or less state professional.

Sure, there were differences between the delegates, but nothing so serious that the convention itself ever was in danger.

For the most part, everybody got through the albeit incomplete, debates over the national executive more or less unscathed.

When it came to questions over the legislature, however, everybody knew that things were going to get much more complicated.

As we are going to see the question that would arise in regard to the legislature Go to the very core of how the United States was going to operate.

It was a question that was at the most basic level about where the nation's sovereignty actually resided.

Before we dive into what is going to be, by a large margin, the most trying time for the delegates, I want to go back to something that we talked about during our last episode.

Everybody at the convention knew the stakes.

The confederation was crippled to the point of being effectively dead.

Another meeting of this kind would probably not be possible again should they fail, there was a very real possibility that the states would proceed to break up into smaller regional confederations.

As historian John Fairling puts it, many of those in attendance fully believed that failing to reach an agreement Would be the doom of the nation.

With that knowledge in mind, it was, although still not a certainty, much more likely that the delegates would reach some kind of an agreement rather than walking out empty handed.

Knowing all of this, it seems perfectly reasonable to believe that everybody ultimately knew that some degree of compromise was going to be necessary.

John Dickinson had stated during his speech on June 2 that he believed that eventually some kind of compromise on the legislature would be reached, and that it was his hope that at least one of the houses would represent the states equally.

Now, as we know from just a little while ago, the delegates were not exactly itching to discuss the question of the legislature just yet on the second and carefully danced around the subject.

However, right here we already have the eventual solution just sitting out there on the table.

If there was going to be a bicameral legislature, One of the chambers would remain Using the existing system of equal representation for all of the states, while the other chamber adopts proportional representation.

However, before we can begin to talk about a great compromise, first we have to watch the convention enter into its most fraught and dangerous period.

The question of the legislature was multifaceted.

There was the obvious question over how representation in that body would work, be it one vote per state or proportional representation, as Madison wanted.

Likewise, the question over the scope of legislative powers remained a key consideration.

Madison's proposed legislative negative that power that would allow them to interject themselves into the affairs of the states and veto local legislation was an important part of his vision for the nation.

Madison would introduce this expansion of power on June 6th.

Madison's argument here was that such a legislative veto would protect the rights over private property within the states.

Recall that at its most basic level, the entire revolution had been a rejection of British parliamentary prerogative to interfere with the property rights of their American colonists.

Simply put, the Americans received no representation in Parliament and therefore could not be in agreement with their taxation.

The Americans saw this as a violation of their rights on their property.

This is why, no matter how much the British tried to dance around the question of taxation, the colonists just kept balking, saying that a tax by any other name is still a tax.

The end of the Revolution did little to ameliorate these fears.

Several of the states during the Confederation era had taken those steps to force creditors to accept the worthless scrip, which had the effect of acting as debt relief via the devaluation of the existing debts.

Madison claimed that the primary argument for having the Convention was a worry over the possibility of tyranny of the majority over private property rights.

By this, he was specifically talking about the relationship between the debtors and the creditors.

In perhaps the strangest moment of this speech that he gave on the six, Madison addressed the evils of slavery as being an example of a majority oppressing a minority.

Now, as of this point, we have not discussed the slaves much in the context of the Convention.

However, rest assured, that is coming either way.

It must have been jarring for the delegates to hear Madison, himself a slave owner, discussing slavery in such terms.

This, however, is not to say that Madison was advocating an end to slavery.

He himself was dependent on the institution, and although he found it to be repugnant, he had no interest in interfering with the institution of slavery within the United States.

Madison's primary goal with the national negative was that he wanted to find a way to cripple the power of the states.

If the problem under the Articles of Confederation had been 13 independent republics all doing their own thing, the national negative would take care of that risk by creating a national level form of oversight.

Somewhat surprisingly, Madison found an ally in this venture from John Dickinson.

Throughout the convention, Madison would often find himself at odds with Dickinson.

However, on this subject, they were in agreement.

Dickinson did have his qualms, however.

He believed that such power would put a check on the ability of the states to act in a manner that was not in the best interest of the nation.

Part of the problem with this plan, however, as pointed out by Elbridge Gehry, is that there was no real precedent for such congressional intrusion into states rights.

As a few of the delegates noted, the national negative was not actually all that unheard of in American politics.

It had been a very useful tool for the British during the colonial era, and indeed, that was what Madison was basing it upon.

Recall that the British parliament had the ability to pierce the colonial assemblies and veto laws that were antithetical to the empire.

Useful as this tool may have been, however, Madison was obviously none too keen on exploring its sources.

The worry for men like Gehry was that this was such a radical suggestion that it would cause public outrage and could threaten the ability of the convention to get any agreement to be accepted by the public.

For the smaller states, those who are already under the threat of having their power stripped, should proportional voting prevail, the national negative threatened to further erode their power.

Should the national government be controlled by the larger states, which certainly was exactly what those larger states had in mind, it would follow that those large states, through the national government, would be able to reach directly into the smaller states and interfere with their legislatures.

When the time for voting came, the three largest states, Virginia, Pennsylvania, and Massachusetts, all unsurprisingly voted in favor of the national negative.

Unfortunately for Madison, that meant that everybody else voted the idea down.

The national negative had been the centerpiece of Madison's Virginia plan, and now it was dead.

It was likewise noteworthy that for the first time during the convention, the votes came down purely along lines of population.

Per Madison biographer Noah Feldman, this was the moment where events started for the first time.

Moving against the nationalists, of course, the biggest question surrounding the legislature was exactly how representation was going to be calculated.

Was it going to be proportional, or was it going to retain the equal voting that had existed under the confederation?

As historian Carol Burkin puts it in her book A brilliant solution, the question was if the government was going to be one of the people or one of the states.

On June 9, it was William Patterson from New Jersey who went ahead and just ripped off the band aid and asked that Congress take up the question of how representation was going to function, knowing just what they were delving into.

When the motion got its second by his fellow New Jersey delegate, David Beerley, he offered an apology, letting everybody know what a headache that question had been.

During the Debates on the Articles of Confederation.

Unsurprisingly, Patterson and the rest of the New Jersey delegation were staunchly opposed to proportional representation.

His argument was passionate, yet simple.

Should proportional representation prevail, it would mean the destruction of the smaller states.

He explained that the smaller states would be forced to completely abandon their independence and would have to essentially become vassals to the larger states.

Patterson went so far to suggest that if the Convention wanted proportional voting, the only solution was to lay out a map of the United States and eliminate all existing boundaries and divide them into 13 new and equal states.

His argument was literally that the only way that proportional voting could work was the complete destruction of not just the small, but indeed all of the states.

Patterson, in his arguments, evoked our old friend Joseph Galloway, who had advocated for Americans to be supported in Parliament.

He pointed out that nobody had really wanted that at the time because they all understood that under no situation would the colonies receive equal representation in Parliament.

The British simply would never have allowed it.

So now, a decade later, how was this any different?

After a day of Patterson laying out everything, all of the evils of proportional representation, everybody was exhausted and agreed that the vote should be delayed until Monday, June 11.

On Monday, it was Roger Sherman who proposed a plan that would see a bicameral legislature, with the upper house having a single vote per state and the lower house being proportional based upon the free inhabitants of each state.

Throughout the day, parties from all of the states threw out their ideas on how to get around this impasse.

Despite this effort in a vote, on that day, proportional representation won out in both the House and the Senate.

The debates of the 11th had been an intense affair.

A review of Madison's journal from the 11th indicates as much.

With a non stop flow of speakers trying to get in their arguments, it is not difficult in his writing to feel just how hectically he must have been trying to scribble down notes of what everybody was saying.

Perhaps, therefore, it should not be a surprise that despite the vote that day, the question over representation was far from over.

A few days after the vote for proportional representation in both houses, William Patterson presented an alternative to the Virginia plan, which was aptly named as the New Jersey Plan.

This plan called for the government to maintain a unicameral legislature with one vote per state.

It was not altogether a call to maintain the Confederation status quo.

It did recommend an executive committee that would be elected by the legislature.

Although a majority of the states would have the power to remove the executives, the New Jersey plan would give power to the legislature to place duties on imports.

This was particularly important to New Jersey, who had long been locked in a state of economic warfare with their much larger neighbor to the north.

In New York, under this system, taxes would become proportional, with the national government having the ability to collect by force if necessary.

The New Jersey plan was to the small states what the Virginia plan was to the larger states.

It would increase the burden of the large states to the national government, while refusing them any additional representation in the process.

This plan was akin to a declaration of war against the large states.

Quickly, threats were being made that the New Jersey plan risked the larger states breaking off and forming their own confederation.

Although this was probably a whole lot more of an example of men venting their frustrations rather than something that had a meaningful chance of happening, realistically, the New Jersey plan never had much of a chance of passing.

Patterson knew well that he lacked the support for the plan and as such, never actually brought it to a vote.

This makes sense.

If proportional representation had been voted in favor of just a few days earlier, it seemed unlikely that the New Jersey plan could now also be voted in favor of.

Really, though, the New Jersey plan represented the deep divisions that remained following the vote on June 11th.

John Dickinson blamed Madison for this rift, personally, telling him that he had taken things too far.

He told the Virginian that there was not a situation where the small states were going to deprive themselves of suffrage in both houses.

Perhaps the language that Madison should have focused on here is that whole suffrage in both houses part.

The battles here in the middle of June were easily the most fraught time for the convention.

There would be battles, of course, throughout the entire convention.

However, these questions in the middle of June were the closest that the convention came to outright falling apart, although it can be debated if it ever really was in any meaningful danger of doing so.

During our next episode, we are going to talk about the great compromise that was made to save the nation.

One that would see proportional representation in the House and equal representation in the Senate.

You know, the exact thing that had been tossed around for weeks now, as we are going to see next time.

The difference is that everybody was ultimately still motivated to come to an agreement and exhausted from the debates, understood that compromise was the only path forward.

Next time, the Connecticut plan will be put forward in what would become known to history as the Great Compromise.

Even after the delegates clear what was their largest hurdle, though, many touchy issues remained that would still need to be ironed out before there was a concrete plan.

Until then, I hope you all have a wonderful two weeks.

I hope that you are staying healthy and that you are staying safe.

And I will see you back here next time as we discuss the great compromise.