of some old government, or by the combination of men to form a new one, in some distant part of the world”? When Madison read this, he must have heard Hume speaking to him directly. The time had come to dissolve the old government, and the combination of delegates in distant Philadelphia now had the responsibility to devise a new one.
In his essay, Hume had suggested two principles of constitutional governance, both of which Madison thought admirably suited to America. The first was a theory of refinement, or filtration, of representatives, in which higher levels of representatives would be chosen by those at lower levels, rather than directly elected by the people. Ordinary voters would elect local representatives, who would then elect a higher level of representatives, and so on up the ladder. Madison adopted the filtration theory in his Vices essay, which envisaged “a process of elections” designed to ensure that the most senior places in government would be occupied by “the purest and noblest characters” in society. Such a system would “extract from the mass of the Society” those who “feel most strongly the proper motives to pursue the end of their appointment, and be most capable to devise the proper means of attaining it.” In the Convention he described this as a “policy of refining the popular appointments by successive filtrations.”30
Hume offered a second thought on democracy that Madison seized on as well. The public good is more likely to be promoted in large republics, said Hume; and Madison saw this as an argument to transfer power from the states to the extended republic of a national American state. Hume had turned on its head an argument that Montesquieu had made in The Spirit of the Laws. Montesquieu believed that republics should be small in size, because he thought that powerful interest groups would promote their private ends in large states.31 Just the opposite, said Hume. Large republics are protected from “tumult and faction,” since the very size of the country would make it harder for factions or interest groups to unite in a common plan. “The parts are so distant and remote, that it is very difficult, either by intrigue, prejudice, or passion, to hurry them into any measures against the public interest.”32
Madison had seen corrupt voters back in Orange County, Virginia, and experienced the turbulence of small-state politicians in the state’s House of Delegates. He expected something better from a national American government, and eagerly adopted Hume’s defense of extended republics. With Hume, he recognized that a well-organized state would seek to prevent a majority from oppressing a minority; and this, he thought, a large state could do more easily than a small one. Madison wrote in his essay that in an extended republic,
the Society becomes broken into a greater variety of interests, of pursuits, of passions, which check each other, whilst those who may feel a common sentiment have less opportunity of communication and concert. It may be inferred that the inconveniences of popular States contrary to the prevailing Theory, are in proportion not to the extent, but to the narrowness of their limits.
Madison had added a wrinkle to Hume’s theory. Hume had thought that a majoritarian faction could never assemble in a large state. Madison agreed with this, but said that it wasn’t the size of the state that prevented this; rather, it was the multiplicity of the factions, and their ability to check each other.33
Madison dropped the extended republic theory into a speech he made to the Convention in answer to Connecticut’s Roger Sherman. As a states’-rights supporter, Sherman had wanted state legislatures, and not the voters, to choose members of the House of Representatives, and as a nationalist Madison opposed this. In a large nation, argued Madison, members of the lower house might safely be elected by the people; there is a danger of majoritarian oppression, but this is less likely in an extended republic.
The only remedy is to enlarge the sphere, & thereby divide the community into so great a number of interests & parties, that in the 1st place a majority will not be likely at the same moment to have a common interest separate from that of the whole or of the minority; and in the 2d place, that in case they shd have such an interest, they may not be so apt to unite in the pursuit of it. 34
That gives us two methods of dealing with the problems of democracy—filtration and extended republics—and as political scientist E. E. Schattschneider noted, this might seem like one method too many.35 If democracy is not to be feared in an extended republic, why should presidents and senators be filtered through appointment by elected representatives, and not directly elected by the people? This was a point that supporters of democracy would grasp in time, but Madison was not yet one of them.36 Instead, he thought the two strategies would reinforce each other, and that both were necessary.
The Virginia Plan incorporated Madison’s filtration principle: the idea that superior men will reach the exalted seats of power when the upper legislative ranks are appointed by lower bodies, and not by the people. While providing for a formal separation of powers between the branches, the plan proposed that the legislature appoint the executive. The “first” or lower house, today’s House of Representatives, would be popularly elected, and would be “the grand depository of the democratic principle of the government,” according to George Mason. “It was, so to speak, to be our House of Commons.”37 The second or higher branch, our Senate, would be coequal in power, but its members would be selected by the first branch, from a list of nominees provided by the state legislatures. Together, the two branches would elect the president, called the “national executive.” This was spelled out in the plan’s Resolution Seven:
Resolved that a National Executive be instituted; to be chosen by the National Legislature for the term of ___ years, to receive punctually at stated times, a fixed compensation for the services rendered, in which no increase or diminution shall be made so as to affect the Magistracy, existing at the time of increase or diminution, and to be ineligible a second time; and that besides a general authority to execute the National laws, it ought to enjoy the Executive rights vested in Congress by the Confederation. 38
Had the Virginia Plan been adopted, America would have had an essentially parliamentary system. The crucial power would lie in the House of Representatives, which would appoint the members of the Senate, and which, together with the Senate, would appoint the president. A powerful lower house could be expected to appoint a president subservient to its wishes, not one likely to defy it.
Resolution Seven also would have limited the president to a single term. That might have seemed an uncontroversial fetter on the office, since term limits were a feature of the Virginia Constitution (which Madison, along with Mason, had drafted); and governors are still term-limited in Virginia. However, the restriction expressed a concern about presidential power, even beyond the filtration principle.
When compared to the Constitution that the delegates finally adopted, the Virginia Plan would have limited the president’s power in yet another way. The Constitution grants the president the power to veto bills for any or no reason, subject to an override by a two-thirds vote of Congress. In Resolution Eight of the Virginia Plan, however, the presidential veto power was shared with a quasi-judicial Council of Revision.
Resolved, that the Executive and a convenient number of the National Judiciary, ought to compose a council of revision with authority to examine every act of the National Legislature before it shall operate, & every act of a particular Legislature before a Negative thereon shall be final; and that the dissent of the said Council shall amount to a rejection, unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negatived by ___ of the members of each branch. 39
The idea of a president sharing his veto power with members of the Supreme Court will seem strange to us.40 It made sense to Madison, because he did not have a thick conception of executive power or of a separation of powers in which the president might routinely oppose the will of Congress. He did think the veto might be employed to strike down the debtor relief
