Historically Speaking: The Social Contract, Part 2

By Will Bellaimey with Elizabeth Gracen:



This is Part 2 of my conversation with Will Bellaimey, history teacher and creator of All the Presidents, Man podcast.

Will and I've been talking about the origins of the Constitution and how the decisions made at that time are still affecting the way our government functions today. In a moment of national crisis, where our institutions are being tested, it's helpful to look back at how and why they were created.


If you are just joining us and want to get caught up, please start Historically Speaking: The Social Contract, Part 1 here.

EG: Okay, so we’ve been talking about the Constitution of the United States. What would you say was the biggest change from how American government was working before?

WB: So in the Articles of Confederation, every state had one vote. So all of Virginia had one vote, and all of New Jersey had one vote. And at the time Virginia—one of the biggest states in the country—had hundreds of thousands of people, and New Jersey had a tenth that, but they had the same number of votes. If you're thinking of what's going on as a group of democracies that each come together to make a few very small decisions, maybe that's okay; but if you're going to start making really big decisions that before were in the hands of your state government in New York, eventually Washington, D.C., then big states feel that they deserve more power.

And then the person who walks in with a plan that really pushes us forward is James Madison. And James Madison once said that the most important thing to do in life is to have a plan. Because when you show up with a plan, everybody's point of debate starts with your plan. Either people are for it or against it, but it started with your idea.


EG. So what was the plan he showed up with in Philadelphia?

WB: Basically he walked into the convention and said, "No more of this equal state stuff. Everything's going to be based on population. So every group of 10,000 people in the country will have a representative. And if your state has 10,000 people, you'll have one representative. If your state that's 200,000 people, they'll have 20 representatives." He was from Virginia. They were going to get the most representatives. And that's why this plan is historically known as the Virginia Plan, because Virginia was like, “Yes. This is what we want."

It is on some level a profound change. Because when you start thinking of people as the fundamental building blocks of the social contract instead of thinking of states as the fundamental building blocks of the social contract, you're saying, "We are one country. We are one nation." Later, Lincoln would argue that we actually had already spiritually become one nation even before the revolution, but I think from a legal perspective, this is the clearest point where they're saying, "Okay, remember that contract that we had with each other? We're going to rip that one up. We just voted to do that, and now we're going to write a new contract."

EG. Wow, yeah that’s a big change. Did everybody in the room want to go along with the plan?


WB: Not at all, there are a bunch of people in that room who don't think it's good idea, specifically people from states that don't have that many people. It's like, "Wait. So what you're going to do," New Jersey says, "is right now we have equal votes, but after this plan of yours goes through, I'm going to have one 20th of the power of you? Why would I sign on to that?" And Madison could make all these arguments about how ultimately the Lockean values in which all people are created equal are better represented under this other system, but still, "Okay, but why should I sign up for that? It's not going to help New Jersey."

Perhaps it’s because I'm a big government person, but I think that the Virginia Plan is just more right. But it's certainly not a coincidence that Madison was from Virginia, nor is it a coincidence that Robert Livingston, who came up with the New Jersey Plan, was from New Jersey, a small state. And the New Jersey Plan was basically, "Why don't we just keep doing what we're doing?" Or it was like, "We can give more power to the central government, but within the central government let's still have equal power between the states." And Delaware and those other small states are all like, "We like that plan." And they really, really fight about this for several months in the summer. It's really hot, and this subject is the thing they almost walk out of the convention over, and it's really easy to imagine that they just walk out of the convention.


EG. How often now do Democrats and Republicans get in a room together, say that they're going to make a deal, and they can't make a deal? It’s amazing that they came up with a compromise at all.

WB: Yeah, it’s called the Great Compromise, but neither side thought the plan was great, but they did think it was great that they had a deal. And the compromise, as most people know, is that we have two houses. One house runs on the Virginia Plan: it's called the House of Representatives. The other house runs on the New Jersey Plan: it's called the Senate—which is why today we're all paying close attention to Susan Collins. She's from Maine. How many people live in Maine? We're paying close attention to Lisa Murkowski. Less than a million people live in Alaska. But she is equally powerful to Kamala Harris, who represents 40 million people. It's still sort of insane that that's how that part of this government works. On the other hand, you have the House of Representatives where California has 55 times as many people as Alaska, which has one. On some level the compromise still works in that it gives both visions a voice, but it really messes with our ability to get things done.

Rural areas are going to be better represented, over-represented in the Senate. Because if you're a very rural area, you probably don't have that many people, but you have equal representation in the Senate to big urban states. And so, since in the last 30 or 40 years, the Republicans have been a party that has generally run rural areas, the Democrats had been an urban party. The Democrats have, at various times, including right now, had control of the House of Representatives but not the Senate. And so one of the reasons why we can pass something through the House but not the Senate is because the Republicans are more likely to control the Senate. Until we change the makeup of the Senate itself, we will be continuing to give more and more bonuses, extra power to rural areas.

Congress Voting Independence, by Robert Edge Pine, depicts the Second Continental Congress voting in 1776

EG: And didn’t that same bonus help Trump get elected?

WB: Right, because the electoral college, which elects the president, is the combination of the number of senators and the number of representatives. So when people talk about why Hillary Clinton was able to win the popular vote but lose the election, it’s because you have this New Jersey Plan bonus. The day after the election, one of my students came in crying, and I was, of course, really upset too. And she was like, “Mr. Bellaimey, why did this happen?" And I think she wanted me to say something comforting. But I was like, "It's the New Jersey Plan. That's why.” If they had really fought it out in the convention and gotten the Virginia Plan done, none of this would be happening. And most people don't think there's any chance that Donald Trump will win the popular vote for his second term, but there's a pretty good chance that he'll win the electoral college.

EG. So the Great Compromise is especially great if you’re from a state with a small population.

WB: The other big bonus that some states ended up getting came from the other compromise, which was about slavery. And I was talking about this a little bit before. How do you count enslaved people? Obviously slave owners dehumanized African people who were brought over here for labor and routinely treated them as objects and as property; in fact, they wanted them to be literally considered property for years. However, for purposes of representation, the slaveholders wanted them to be counted as full humans so that they would get more power.


And then there’s the northern states that didn't have very many slaves, and pretty soon after the Constitution, would outlaw slavery. You know, later we think of them as the states that abolished slavery, and therefore recognized the humanity of African Americans, but at the time they were saying, "They're not humans. We're not going to count them for purposes of representation because we want the power."

So there's some real politicking going on with all these white guys in the room together, and ultimately the compromise that they come to is the Three-Fifths Compromise, where they say, "We're going to count three-fifths of all other persons.”

EG: And they use the phrase "all other persons" because they don't want the word "slave" to appear in the Constitution?

WB: I don't know if that speaks well of them, but it certainly speaks to the fact that they were aware of the moral implications. If they just thought it was totally fine, then they would have just put the word in there. They knew, on some level, that future generations would judge them for doing this, and even people like Jefferson, who refused to free his slaves when he had the chance, wrote often that the idea was monstrous, but at the convention nobody talks about banning slavery. I mean, their entire economic system that had made them wealthy and powerful was based on that.


EG: Did any of the founders call for a ban on slavery at the convention?

WB: Not really. Alexander Hamilton ultimately would advocate for manumission, which is people choosing to free their slaves on their own. At the convention they said, "There will be no laws passed banning the importation of slaves. We're going to allow the slave trade to continue until 1809."

None of this kind of stuff was being talked about in the convention. And ultimately this Three-Fifths Compromise gave a huge bonus to slave states. And many of the early elections that were close would have gone in a different direction if every slave state hadn't been given this pretty significant bonus in the electoral college, as well as in representation in the House and in the Senate. Slavery probably would have been banned a lot earlier if every slave state hadn't gotten an extra more than 50% bump.

EG: So, those are the two compromises everybody talks about, what else did they talk about all summer?

WB: I guess it'd be worth it to also just lay out some of the other principles that come out of this convention in terms of the system that they created. Most famously, we talk about the idea of separation of powers and checks and balances. Those two phrases sound really similar, and they are related, but constitutional scholars—or call them scientists—try to separate them to think about them in different ways. The idea of the separation of powers—which, by the way, none of these things were invented by Americans, they were thought about by Europeans for many years and even in the sense of a monarchy, there would be a separation of powers.

So for instance, in England, the money was in the hands of parliament, and parliament would disperse that money to the king, who would then spend that money to raise armies, to fight wars, to do all sorts of things, right? In the American system, we created a presidency that did not exist under the Articles of Confederation. So this is the other big shift from the Articles of Confederation: we create one person, and ultimately a whole group of advisers and later a whole bureaucracy, that is in charge of executing the laws.


EG: But the whole point of the revolution was that we didn’t want to have a king anymore, right?

WB: Well, at the convention, Hamilton advocated for a king, or at least advocated for a president who would serve for life. He thought that would bring stability—and boy, as you know, having elections every four years is rather unstable. But they had gotten burned pretty badly the last time they had a king, so that idea got nixed. But the president was given powers that would be later considered the powers of the sword, like the power to make war. But Congress was given the power to declare war, which is a more democratic view than the British view, which was basically Congress could cut off money for the king or make money for the king to stop a war, but it was ultimately up to the king when there should or should no