by James Allison
“. . . while the Constitution protects against invasions of individual rights, it is not a suicide pact.” — Justice Arthur Goldberg, Kennedy v. Mendoza-Martinez, 1963.
Thus did Justice Goldberg express so well a sentiment embraced by many distinguished forbears by way of excusing some expedient trashing of constitutional ideals plain and simple. The trashings would include Lincoln’s suspension of habeas corpus during the Civil War; Roosevelt’s internment of Japanese-Americans in World War 2 by executive order; Reagan’s secret sale of arms to Iran, to finance Nicaraguan insurgents; and many more. But is the denial correct? If the Constitution is not a suicide pact, why did the founders write something so very like a suicide pact when they wrote the Constitution in that Philadelphia summer of 1787?
“The Great Compromise” is what we now call one of those self-destructive episodes in the writing of the Constitution. Delegates from big states, such as Massachusetts, and delegates from small ones, such as Delaware, maneuvered for political power in the proposed new federal government. What if big states were to dominate small ones? What if small states were to stymie big ones? These questions had turned into a long, bitter impasse that threatened to tear the convention apart.
A committee formed to handle the dispute, chaired by Elbridge Gerry, of Massachusetts, saved the day with a bicameral solution that Gerry didn’t like too well. The solution was a Senate composed of two members from each state, big and small alike, so that small-state voters had more Senators per capita than big-state voters; and a House of Representatives with each state’s delegation proportional to the state’s population, so that small-state and big-state voters had more or less equal representation per capita in the House of Representatives. The imbalance between Senate and House was worrisome, but apparently acceptable.
Perhaps Gerry anticipated the mischief that might ensue from a Senate in which a few small- state Senators, representing only a handful of voters, could thwart the will of a large majority of people. Gerry despised the notion of a dictatorial majority, but was all for the people and representative government.* However, thanks to the structure of the Senate, “The Great Compromise” plainly gave more political weight to voters of the less populous states than those of the more populous states. Were Gerry still with us, he might well say “I told you so! How do you think two of your recent presidents, George W. Bush and Donald Trump, got into the White House with a minority of the popular vote? Thanks to our so-called Great Compromise, small-state voters have more Electoral College votes per capita than big-state voters. That’s because every state’s share of electoral college votes is equal to the number of senators it has—two per state, big and small alike— plus the number of its delegates to the House of Representatives—dependent on population. That’s how Clinton could win nearly 3 million more popular votes than Trump but lose where it counted, in the Electoral College vote. It was the same story when Al Gore won the popular vote but lost to George W. Bush in the Electoral College.”
And that isn’t all. In the original version of the Constitution Article 1, Section 2 said that the population of the Union “. . . shall be determined by adding to the whole number of free persons, including those bound by service for a term of years, and excluding Indians not taxed, three fifths of all other persons.” Because “all other persons,” meant slaves, the Constitution meant that a state’s political heft in both the federal legislature and the Electoral College would increase with the size of its slave population. Was that really such a good idea? Or was it one of those suicidal features of the Constitution? In any event, after our near-suicidal Civil War, Section 2 of the 14th Amendment crossed out the part about three fifths of all other persons. But that was not the end of the mischief. After the Civil War, the abolition of slavery created a population increase in former slave states, as former slaves became countable persons who, by constitutional right, gained additional representation for those states in both Congress and the Electoral College. For the most part, those additional representatives did what they could to suppress voting by former slaves and their descendants. The political harvest of those constitutional consequences remains with us today.
Elbridge Gerry may not have foreseen all of these consequences, but few Americans today could deny their self-inflicted injuries to the new republic. Those few exceptions might include many members of the Federalist Society, who, in their dedication to an originalist interpretation of the Constitution, might strain to explain the virtues of slavery, minority rule, and voting by men only and none of those men so young as 18. Were it not for Article 5, where the founders told us how to amend their imperfect founding document, our present Constitution of the United States would be even more suicidal than the edition dated 17 September, 1787.
*Except much later, as Governor of Massachusetts, when he endorsed control of his state’s Senate by means of the cheatery that bears his name, a gerrymandered election that cost him serious pangs of conscience.
Allison, James. Gerry’s Regret (Podcast and Script). League of Women Voters of Bloomington-Monroe County website.
Billias, George Athan (1976). Elbridge Gerry: Founding Father and Republican Statesman. New York: McGraw-Hill.
Hatfield, Mark O., with the Senate Historical Office (1997). Vice Presidents of the United States, 1789-1993. Washington: U.S. Govt. Printing Office, pp. 63-68.