Origin of a Bicameral Congress

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Article I, Section 1:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

The Framers of the Constitution aimed to limit Congress’s power further by specifying in the Legislative Vesting Clause that Congress would be a bicameral institution composed of a House of Representatives and Senate. Although Congress’s bicameral structure was a departure from the unicameral legislature comprised of state delegations under the Articles of Confederation,1 the Framers had significant experience with bicameral legislatures. Under British rule, colonists were subject to law enacted by the bicameral Parliament of Great Britain, where the hereditary aristocracy was represented in the House of Lords and the freeholders of the land were represented in the House of Commons.2 Further, many of the Framers of the Constitution were governed by their bicameral state legislatures. Following the Declaration of Independence in 1776, all the states but Georgia, Pennsylvania, and Vermont established bicameral legislatures.3

The Constitutional Convention4 was assembled in 1787, in part, to restructure the national unicameral legislature and to address the “defects” of the Articles of Confederation.5 Congress, under the Articles, had no direct means to implement or compel compliance with its laws.6 For example, Congress lacked the power to levy duties, to tax individuals directly, and to regulate interstate commerce.7 The Articles, recognizing the states’ “sovereignty, freedom, and independence,” retained for the states all powers not expressly delegated to Congress.8 As a result, Congress, among other things, was unable to stop states from adopting “discriminatory and retaliatory” trade practices among the states.9

However, in seeking to strengthen federal legislative power over states and individuals, the Framers were also concerned that a single legislative body with unchecked and concentrated power would threaten individual liberties.10 James Wilson, representing Pennsylvania at the Convention, cautioned that “[i]f the Legislative authority be not restrained, there can be no liberty nor stability.” 11 In supporting a bicameral Congress, he remarked that legislative power “can only be restrained by dividing it within itself, into distinct and independent branches. In a single house there is no check, but the inadequate one, of the virtue [and] good sense of those who compose it.” 12

In debating the new structure of Congress, the Convention considered several proposals.13 Much of the debate focused on two proposals—the Virginia Plan and the New Jersey Plan.14 Virginia Governor Edmund Randolph presented the Virginia Plan that proposed three separate branches of government—legislative, executive, and judicial.15 The Legislative Branch under the Virginia Plan would consist of a bicameral body in which each state would have a different number of representatives based on the state’s population.16 In addition, the Virginia Plan allowed Congress to exercise legislative authority over individuals, removing the constraint under the Articles that the state legislatures act as intermediaries to implement enacted legislation.17 The Virginia Plan was principally favored by the larger states that embraced the notion that the view of the majority of the Nation’s population should prevail in the national legislature.18

As an alternative to the Virginia Plan, William Paterson proposed the New Jersey Plan to the Convention.19 In following the unicameral structure provided under the Articles of Confederation, Paterson’s proposal represented an effort to revise the current Articles rather than replace them.20 The proposed structure of Congress under the New Jersey Plan provided for a unicameral legislature with a voting system that allowed for one vote per state in the national legislature.21 Under this proposed system, Congress would require the “consent” of the state legislatures before exercising legislative authority directly upon individuals.22 Smaller states generally supported the New Jersey Plan because they did not favor a major departure from the Articles or proportional representation in Congress based on state size.23

1: Articles of Confederation of 1781, art. V, para. 4. For more information about the Articles of Confederation, see Intro.6.1 Continental Congress and Adoption of the Articles of Confederation.
2: See, e.g., 1 The Records of The Federal Convention of 1787, at 196, 198, 484–85 (Max Farrand ed., 1911) (discussing the House of Lords and House of Commons as a possible model for Congress).
3: James Quayle Dealey, Growth of American State Constitutions 37 (1915).
4: For discussion of the Constitutional Convention, see Intro.6.1 Continental Congress and Adoption of the Articles of Confederation.
5: See New York v. United States, 505 U.S. 144, 163 (1992) (citing The Federalist Nos. 15, 16 (Alexander Hamilton)); see also 1 The Records of The Federal Convention of 1787, supra note 2, at 18 (Edmund Randolph, in opening the Constitutional Convention, “observed that in revising the federal system we ought to inquire 1. into the properties, which such a government ought to possess, 2. the defects of the confederation, 3. the danger of our situation &. 4. the remedy.” ).
6: Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425, 1447 (1987).
7: Articles of Confederation of 1781, art. V. See also Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425, 1442, 1447 (1987) (discussing the lack of Federal Government power under the Articles).
8: Articles of Confederation of 1781, art. II.
9: For example, New York, in an effort to capitalize on its position as a port of entry, imposed duties on goods imported by nearby states. In retaliation, these states enacted taxes on commerce with New York. Robert N. Clinton, A Brief History of the Adoption of the United States Constitution, 75 Iowa L. Rev. 891, 896 (1990).
10: See e.g., 2 The Records of The Federal Convention of 1787, supra note 2, at 74 (statement of James Madison on July 21, 1787) ( “Experience in all the States had evinced a powerful tendency in the Legislature to absorb all power into its vortex.” ); id. at 76 (concurring that “public liberty [was] in greater danger from Legislative usurpations than from any other source” ) (statement of Mr. Gouverneur Morris). See also The Federalist No. 48 (James Madison) (describing how the concentration of “[a]ll the powers of government, legislative, executive, and judiciary” in Virginia’s legislative body “is precisely the definition of despotic government” ); 4 John Adams, Thoughts on Government, in The Works of John Adams 195 (Charles F. Adams ed., 1851) ( “A single [legislative] assembly is liable to all the vices, follies, and frailties of an individual; subject to fits of humor, starts of passion, flights of enthusiasm, partialities, or prejudice, and consequently productive of hasty results and absurd judgments.” ); Gordon S. Wood, Creation of the American Republic 1776–1787, at 404–13 (1969) (discussing concerns related to state governments).
11: 1 The Records of The Federal Convention of 1787, supra note 2, at 254.
12: Id.
13: See, e.g., id. at 20–22 (The Virginia Plan); id. at 242–45 (The New Jersey Plan); id. at 23 (The Pinkney Plan).
14: New York v. United States, 505 U.S. 144, 164 (1992).
15: 1 The Records of The Federal Convention of 1787, supra note 2, at 21–22.
16: Id. at 20. As originally proposed by the Virginia delegates, the bicameral legislature consisted of two chambers, one that would be “elected by the people of the several states” and another that would be elected “by those of the first [chamber], out of a proper number of persons nominated by the individual [state] legislatures.” Id. at 20. Historians have noted that the original Virginia Plan was drafted by James Madison. Max Farrand, The Framing of the Constitution of the United States 68–69 (1913). The Virginia Plan went through various revisions and amendments before it was finalized and adopted at the Convention. Id. The later amended version consisted of a bicameral legislature with members of one branch elected by the people, and members of the second branch elected by the individual state legislatures. 1 The Records of The Federal Convention of 1787, supra note 2, at 228.
17: See New York v. United States, 505 U.S. 144, 164 (1992); 1 The Records of The Federal Convention of 1787, supra note 2, at 21, 229 (Max Farrand ed., 1911).
18: The larger states such as Virginia, Massachusetts, and Pennsylvania supported this proposal, as it gave each state a vote in Congress based on its population size. Farrand, supra note 16, at 81–82 ( “As the discussion proceeded it became more and more evident that Connecticut, New York, New Jersey, Delaware, and Maryland were tending to vote together, in opposition to the other states led by Virginia, Pennsylvania, and Massachusetts.” ); see also The Federalist No. 22 (Alexander Hamilton) ( “Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York; and to Delaware an equal voice in the national deliberations with Pennsylvania, or Virginia, or North Carolina.” ).
19: Farrand, supra note 16, at 84–85.
20: In presenting the New Jersey Plan, Paterson resolved that the “[A]rticles of Confederation ought to be so revised, corrected & enlarged, as to render the federal Constitution adequate to the exigencies of Government, & the preservation of the Union.” 1 The Records of The Federal Convention of 1787, supra note 2, at 242.
21: Id. at 242; see also Intro.6.1 Continental Congress and Adoption of the Articles of Confederation.
22: 1 The Records of The Federal Convention of 1787, supra note 2, at 243–244.
23: Farrand, supra note 16, at 84–85; 1 The Records of The Federal Convention of 1787, supra note 2, at 242. John Dickinson, a delegate from Delaware, reportedly remarked to James Madison, a delegate from Virginia, that the smaller states “would sooner submit to a foreign power” rather than be deprived of an equal vote in both chambers of Congress. Id.