Article — From the May 2004 issue
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Article — From the May 2004 issue
To understand the antidemocratic history and unsatisfactory logic that gave rise to American senates (both federal and state), one must start with the century preceding that of the American Revolution, when the people of England rose up in a fit of regicide, civil war, and tumult to end the absolutism of their Stuart kings (“accountable to none but God only”) and to shift sovereignty from the king to “the king-in-parliament,” meaning to a king whose actions depended on the approval of two branches of parliament. This new arrangement was basically a recognition of property classes in Britain, balancing the king (Britain’s largest property owner), the hereditary House of Lords (Anglican bishops and titled aristocrats, “Lords Spiritual and Temporal,” also representing vast land holdings), and a House of Commons (which represented a rising mercantile class of property owners whose demands for representation gave rise to this “Glorious Revolution”). Yet the British also came to see this balance as a protection of liberty, finding justification in the writings of the Greek and Roman philosophers, most notably in those of Polybius, who divided the forms of government into rule by one (monarchy), by the few (aristocracy), and by the many (democracy) but insisted that each of these forms, unless balanced by the other two, would degenerate into tyranny, oligarchy, or mob rule, respectively. Thus it was, in the minds of most Britons, a protection against tyranny that their constitution embraced the one (the king), the few (the aristocratic House of Lords), and the many (the more representative House of Commons). As Britain’s most famous jurist, William Blackstone, argued in his Commentaries on the Laws of England, “If ever it should happen that the independence of any one of the three should be lost, or that it should become subservient to the views of either of the other two, there would soon be an end of our constitution.” As Britain’s leading political philosopher, John Locke, summarized at the end of the century, the purpose of government was to secure everyone’s “lives, liberties, and estates.”
In the century that followed England’s “Glorious Revolution,” philosophers in France, politicians in America, and Whig critics within England itself had much to say about the British constitution and whether its balances secured or threatened liberty. Chief among them was the French philosopher Charles Montesquieu, who, in his Spirit of the Laws, accepted the balance among the one, the few, and the many but found a more important protection of liberty in the separation of executive, legislative, and judicial functions. As France and America approached the time of their own revolutions, most democrats accepted Montesquieu’s theory of separation, but many totally rejected the British balance among monarchy, aristocracy, and democracy. These critics argued, as many Whigs in England did, that the monarch’s power of appointment and expenditure could (and did) corrupt the British Parliament and prevented Parliament from representing the people it was supposed to represent. Looking despondently at these developments, English Whig James Burgh wrote, in his Political Disquisitions, that William Blackstone had “placed the sovereignty wrong, viz. in the government; whereas it should have been in the people.” Suffering “intolerable” and “coercive” acts of the British government, many in America agreed.
America fired its opening shot at the British constitution in January of 1776, when Thomas Paine came out with his revolutionary pamphlet Common Sense, urging Americans to declare their independence from Britain and to distance themselves from the British constitution (under which they had lived for generations). “I know it is difficult,” he wrote, “to get over local or long standing prejudices, yet if we will suffer ourselves to examine the component parts of the English constitution, we shall find them to be the base remains of two ancient tyrannies, compounded with some new republican materials.”Paine condemned Britain’s three-way balance as, “First. — The remains of monarchical tyranny in the person of the king. Secondly. — The remains of aristocratical tyranny in the persons of the peers [the House of Lords]. Thirdly. — The new republican materials, in the persons of the commons, on whose virtue depends the freedom of England.” He urged that any American government consist of only one democratically elected legislative chamber, with no aristocratic or kingly branch to veto its decisions (the executive branch would be appointed by and answer to the legislature). Quoting Burgh, Paine urged “a large and equal representation,” meaning a large number of representatives (so that each will answer to a small constituency) and a large number of voters (meaning that neither property nor any other special interest should limit the right to vote and thus limit equal representation). “A small number of electors, or a small number of representatives,” Paine warned, “are equally dangerous. But if the number of the representatives be not only small, but unequal, the danger is increased.”
 Paine made similar comments about America’s new federal Constitution, observing, “As the Federal Constitution is a copy, though not quite so base as the original, of the form of the British Government, an imitation of its vices was naturally to be expected.”
The most virulent response to Paine’s Common Sense came from New Englander John Adams, who introduced the phrase “checks and balances” into the American language and condemned Paine’s plan of government as “so democratical, without any restraints or even an Attempt at any Equilibrium or Counterpoise.” Adams countered Common Sense in April with his own pamphlet, Thoughts on Government, which argued that any American government should have its own three-way balance—specifically, two separate legislative chambers and a separate chief executive, each with the power to veto the other two. In such a government, he wrote, “equal interests among the people should have equal interests in it.” Adams enumerated his arguments against a single-chamber legislature as follows:
1. A single assembly is… subject to fits of humor, starts of passion, flights of enthusiasm, partialities, or prejudice, and consequently productive of hasty results and absurd judgments…. 2. A single assembly is apt to be avaricious, and in time will not scruple to exempt itself from burdens, which it will lay, without compunction, on its constituents. 3. A single assembly is apt to grow ambitious, and after a time will not hesitate to vote itself perpetual….4. A representative assembly… is unfit to exercise the executive power, for want of two essential properties, secrecy and dispatch. 5. A representative assembly is still less qualified for the judicial power, because it is too numerous, too slow, and too little skilled in the laws. 6…. [A] single assembly, possessed of all the powers of government, would make arbitrary laws for their own interest, execute all laws arbitrarily for their own interest, and adjudge all controversies in their own favor.
If these were the only arguments in favor of two chambers in the legislature, one could easily dismiss them, if only by questioning why having two chambers wouldn’t simply double the problems of one chamber. If representatives of the people couldn’t resolve their passions, discard their prejudices, control their greed, etc., in one deliberative body, why would a second group of representatives, arguing over the same matters, do any better? And if that second chamber were to reach a different conclusion from the first chamber, why would we believe that this second slice of humanity had reached a better conclusion than the first? Or, if we knew that the second chamber were better or would reach a better conclusion than the first, why would we not make the second chamber the only chamber and avoid the risks of the first chamber’s mistakes?
 As Benjamin Franklin put it: “If one Part of the Legislature may control the Operations of the other, may not the Impulses of Passion, the Combinations of Interest, the Intrigues of Faction, the Haste of Folly, or the Spirit of Encroachment in the one of those Bodies obstruct the Good proposed by the other and frustrate its Advantages to the Public?”
Paine’s democratic message of January found its echo in July, when Thomas Jefferson drafted the Declaration of Independence, shifting American sovereignty from Britain’s king-in-parliament to the American people. Proclaiming that “all men are created equal,” Jefferson declared that government rested on “the consent of the governed” and that its purpose was to secure inalienable rights, among them “Life, Liberty and the pursuit of Happiness.” Jefferson did not use John Locke’s phrase “lives, liberties and estates,” which would have tied America’s political rights to property ownership, as in Britain’s three-way balance. Jefferson opposed property qualifications for office-holding or voting. “I have not observed men’s honesty to increase with their riches,” he wrote.
After the Declaration of Independence, America’s former British colonies began to draft new state constitutions, choosing between Paine’s model of government and John Adams’s. In September, Paine joined Franklin in propagating the nation’s most democratic state constitution—that of Pennsylvania—which called for a single-chamber legislature without wealth or property qualifications for voters or representatives and with a weak plural executive that had no power to initiate or veto legislation. Franklin opposed the idea of a three-way balance, observing, “The Division of the Legislature into two or three Branches in England, was it the product of Wisdom, or the Effect of Necessity, arising from the preexisting Prevalence of an odious Feudal System?” He spoke openly at the Pennsylvania Constitutional Convention against a two-chamber legislature, which he likened to “putting one horse before a cart and the other behind it, and whipping them both. If the horses are of equal strength, the wheels of the cart, like the wheels of government, will stand still.” For Paine and Franklin, two legislative chambers were a prescription for deadlock, and, with the advantage of hindsight, who among us would disagree?
More from Richard N. Rosenfeld: