July 14: How Federal Would the Federal Government be?

The July 14th debate illustrates well the disagreement about whether this federal government would be a union of the States or a Union of the states. It’s hard for us now to recover fully this dispute because, after the Civil War, it became clear to everyone except the state of Texas that the national government was supreme in sovereignty to the state governments. The state governments persisted and have never been treated simply as functionaries of the national government, but there was no longer a question of ultimate supremacy. By contrast, prior to the Civil War, almost all documents say “The United States are…” rather than “is.” Prior to the Civil War, we still could be meaningfully described as a Union of the States–the States having an independence from that Union. This feeling of independence was so strong that he Southern states felt that it was within their constitutional rights to secede from a union that they had joined voluntarily and so could leave voluntarily.

The question on this day revolved around whether the Senate should have equal representation of all of the states. Echoing many of the debates that rage now, some of the Federalists at the Convention argued strenuously against equal state representation. Rufus King said:

“He considered the proposed Government as substantially and formally, a General and National Government over the people of America. There never will be a case in which it will act as a federal Government on the States and not on the individual Citizens. And is it not a clear principle that in a free Govt. those who are to be the objects of a Govt. ought to influence the operations of it? What reason can be assigned why the same rule of representation sd.. not prevail in the 2d. branch [FN8] as in the 1st.? He could conceive none. On the contrary, every view of the subject that presented itself, seemed to require it.”

By contrast to the Articles of Confederation, this new federal government would have a direct relationship with individual citizens. As such, it made no sense to give some citizens in some states more representation than other citizens in other states. Why should the citizens of Rhode Island get as many Senators as New York? James Madison worried that “the proper foundation of Govenmt-was destroyed, by substituting an equality in place of a proportional Representation.” Equal representation of each state in the Senate made no sense if this were truly a government representing individual citizens across the states rather than the states qua states. James Wilson argues strenuously: “the proper foundation of Govenmt-was destroyed, by substituting an equality in place of a proportional Representation, no proper superstructure would be raised.”

In securing equal representation for the states over and against the objections of these strong Federalists, the Convention took the first step toward establishing this new Union as something that wasn’t quite a confederation anymore but still wasn’t fully a national government. Of course, after the Convention the so-called “anti-Federalists” insisted upon a view of the Union that was even weaker than the one that the Convention formed. As Jeffrey Tulis and Nicole Mellow have persuasively argued in their book, Legacies of Losing in American Politics, this anti-Federalist critique of the Constitution somehow became the dominant view of it in subsequent years.

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