The Virginia Plan, the New Jersey Plan and the Final Constitution Compared

Every few years somebody announces that the Constitution was a backroom deal cooked up by men who could not agree on anything. Good. That is the best thing about it. A document written by people who agreed on everything would have been written by one faction, and we would be living under that faction still. The Constitution was a fight, and if you want to know what the fight was about, there is no better way than to put the two opening bids beside the final text and read across.

The opening bids were the Virginia Plan, presented on May 29, 1787, and William Paterson's New Jersey Plan, presented on June 15. One wanted a new national government. The other wanted to repair the old confederation. What came out on September 17 was neither, and the differences tell you more about the American republic than a shelf of textbooks.

Two plans, two theories of the Union

The Virginia Plan was introduced by Governor Edmund Randolph, but its architecture was largely James Madison's. Its fifteen resolutions opened politely, proposing that the Articles of Confederation be "corrected and enlarged," and then proceeded to replace them almost entirely. It proposed a national legislature of two branches, both apportioned by population or by contributions, with the first branch elected by the people and the second chosen by the first from nominees put forward by the state legislatures. That legislature would choose a national executive and a national judiciary. It would legislate in all cases where the separate states were "incompetent," and it could negative state laws it judged contrary to the Union.

That last power deserves a pause. Madison wanted Congress to be able to veto any state law. Picture a state legislature passing a road budget and waiting for permission from the capital. Even many large-state delegates blinked.

The New Jersey Plan was the small states' answer. Paterson did not propose a new government at all. He proposed to keep the Confederation Congress, one state, one vote, and to give it what it had lacked: power to raise revenue through duties on imports, stamps and postage, power to regulate trade, and a way to compel states that ignored requisitions. It added a plural executive chosen by Congress and a supreme tribunal appointed by that executive. And it contained one line that would outlive the plan itself: acts of Congress and treaties would be "the supreme law of the respective States," binding on state judges.

Behind the two plans sat two theories. Virginia said the Union rests on the people, so the people should be counted. New Jersey said the Union is a compact of states, so the states should be equal. Both theories had a real basis in the Revolution. Both were partly right. The genius of the final document is that it refused to choose.

The three documents side by side

Here is the comparison on the five questions that mattered most.

Read the right-hand column and notice what it is. It is not a midpoint. It is a new design that took the strongest idea from each side and discarded the most dangerous.

Representation: the fight that nearly ended it

Representation consumed most of June and half of July. The large states had arithmetic on their side. Virginia had many times the population of Delaware, and it seemed absurd to large-state delegates that a Delaware voter should count for more than a Virginian. The small states had history on their side. Each state had been a separate party to the Declaration of Independence and to the Articles. They had joined the Union as equals and saw no reason to dissolve into a mass where three or four large states could outvote everyone.

On June 19 the Convention, sitting as a Committee of the Whole, voted to proceed on the Virginia resolutions rather than Paterson's, seven states to three with Maryland divided. The small states lost the vote and kept the fight. The compromise that finally passed on July 16, an equal Senate and a House apportioned by population, came from Connecticut's delegates and survived by the narrowest of margins. We tell that story in detail in The Connecticut Compromise Passed by One Vote on July 16, 1787.

What matters for the comparison is that neither theory won outright. The House speaks for the people as a single national body. The Senate speaks for the states as states. Federalist 39 later called the result "neither a national nor a federal Constitution, but a composition of both," and the Senate is where the federal part lives, which is why it was built to be hard to reform. See Federalist 39 Shows the Constitution Is Partly National and Partly Federal.

The executive: from creature of Congress to independent officer

Both plans made the executive a creature of the legislature. The Virginia Plan had Congress choose a single executive for one term. The New Jersey Plan had Congress choose several executives and allowed Congress to remove them at the request of a majority of state governors. Either way, the executive would have been an employee of the legislature with a fancier title.

The final Constitution broke that dependence. Article II opens with "The executive Power shall be vested in a President of the United States of America." One person, not a committee. Chosen by electors appointed in each state as its legislature directs, not by Congress. Re-eligible, so that ambition could be tied to good conduct. Paid a salary Congress cannot raise or cut during the term. Removable only by impeachment and conviction.

Why the change? Because the delegates spent the summer reading Montesquieu against themselves. If the legislature picks the executive, the executive will court the legislature, and the separation of powers becomes a formality. The single executive also answered the plural one. A committee cannot be blamed; one man can. Hamilton made that case in Federalist 70, and we read it closely in Federalist 70 Read Closely, Hamilton's Case for Energy in One Executive. The electoral system that replaced legislative selection was itself a late invention, worked out by a committee in early September.

The courts and the question of who keeps the states in line

The Virginia Plan had the legislature choose judges and seat some of them on a council of revision with the executive, to review laws before they took effect. The New Jersey Plan had the executive appoint a single supreme tribunal. The final document split the difference in a way that served the separation of powers: the President nominates, the Senate consents, and judges serve during good behaviour with salaries that cannot be diminished. No council of revision. Judges decide cases; they do not sit in the legislature's waiting room.

The bigger question was how to keep thirteen states from wrecking the Union. Madison's answer was a congressional veto over every state law. On July 17 the Convention rejected it. That same day Luther Martin of Maryland, a small-state man, moved a version of Paterson's supremacy language, and it passed without dissent. In its final form, Article VI reads:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Notice the irony. The clause the nationalists now love came from the small-state plan. And notice the limit inside it: only laws made "in Pursuance" of the Constitution are supreme. A federal statute outside the enumerated powers is not the supreme law of anything. That point is the hinge of The Supremacy Clause Makes Federal Law Supreme Only When Made in Pursuance.

The Virginia Plan's open-ended grant, power to legislate wherever the states were "incompetent," also died. In August the Committee of Detail replaced it with a list. Article I, Section 8 enumerates what Congress may do. Article I, Section 10 lists what states may not do. That substitution is the single most important change between May and September, and it is the one modern Washington most wants you to forget.

Amendment: the quiet revolution

The Articles of Confederation could be amended only with the confirmation of every state legislature. That rule made reform impossible; a single state's refusal had blocked a modest federal import duty. The New Jersey Plan, by working within the Articles, would have left that trap in place. The Virginia Plan called for an amendment process that would not need the national legislature's consent, which was a striking idea: the people and the states could fix the national government even if the national government objected.

Article V took the Virginia instinct and made it workable. Two-thirds of both houses of Congress may propose amendments, or Congress shall call a convention on the application of two-thirds of the state legislatures. Ratification takes three-fourths of the states, by legislatures or by conventions. The second route is the safety valve Virginia wanted: a path around Congress. Our look at whether that route is safe is in A Convention of States Is the Founders' Safety Valve, Weighed Honestly.

Article V also entrenched the small states' victory. It provides "that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." The Senate's equality is the one provision of the Constitution that ordinary amendment cannot touch.

The strongest objection, and the answer

The best argument against the final Constitution came from the New Jersey side, and it deserves to be stated fairly. The delegates had been sent by their legislatures to revise the Articles of Confederation. Congress's own call of February 1787 spoke of revising the Articles. Paterson's plan did exactly that. The Virginia Plan, and the document that grew from it, threw the Articles away and wrote a new frame of government, with a ratification rule of nine states that the Articles nowhere allowed. On that view the Convention exceeded its commission.

That objection is serious, and the Federalists treated it seriously. Here is why it fails.

1. The commission was to make the government adequate. The resolution calling the Convention spoke of rendering the federal constitution "adequate to the exigencies of Government and the preservation of the Union." A delegate who concluded that the Articles could not be made adequate by patching was not betraying his charge. He was carrying it out.
2. The Convention claimed no power to impose anything. It proposed. Nothing in the document took effect until the people, meeting in conventions elected for the purpose, ratified it. Madison answered the objection this way in Federalist 40: the plan was a recommendation, and its authority came from the people's approval, not from the Convention.
3. The repair option had been tried. For years Congress had asked the states for revenue powers through amendments to the Articles, and each attempt died because one state could veto it. The New Jersey Plan would have kept the very unanimity rule that had already failed.
4. The result kept the states. The final document did not abolish the states as Hamilton's June 18 speech had seemed to contemplate. It gave them the Senate, a role in choosing the President, a role in amendment and every power not delegated. The New Jersey delegates lost the vote on June 19 and still won a permanent place in the structure.

The verdict: the Convention went beyond its letter and stayed within its purpose, and it submitted its work to the only authority that could cure the irregularity, the people. Article VII's nine-state rule is examined in Nine of Thirteen, Why Article VII Sidestepped the Articles of Confederation.

Who each design suits

Each of the three designs suits a particular kind of country.

The Virginia Plan suits a unitary nation. A single people, governed by a single legislature with general power and a veto over local governments, is how Britain was governed and how France would be. It is efficient. It is also dangerous in a large country, because a national majority can override every local preference and there is no structural brake on it.

The New Jersey Plan suits a league of sovereign states. It would have worked for an alliance, a customs union or a defensive pact. It would not have worked for a nation that needed to pay its debts, defend its borders and speak with one voice abroad, because it still acted on states rather than on citizens.

The Constitution suits a large federal republic. It acts directly on individuals for the limited purposes it lists, and leaves everything else to the states and the people. It counts people in one house and states in the other. It divides power so that no single majority, national or local, can take everything at once. Madison argued in Federalist 10 that a large republic controls faction better than a small one, and Federalist 51 explained how the federal structure doubles the security: power is divided between two governments and then subdivided within each. We take Federalist 10 apart in Federalist 10 Explains Why a Large Republic Tames Faction Best.

The lesson for us is not that compromise is good in itself. Some compromises are surrender. The lesson is that the right kind of compromise, one that builds both sides' legitimate concerns into the structure, produces something stronger than either side's first draft. The large states got a national government that acts on people. The small states got a guaranteed voice. The people got a government with listed powers, three branches that watch each other and a way to change the rules without blowing everything up.

The case in brief

1. The Virginia Plan of May 29, 1787 proposed a national government with proportional representation in both houses, a legislature that chose the other branches and a veto over state laws.
2. William Paterson's New Jersey Plan of June 15 kept the one-state, one-vote Congress and added revenue and trade powers, but left the Confederation's failures in place.
3. The signed Constitution took population for the House and equality for the Senate, an independent single executive, enumerated powers in place of a general grant, a Supremacy Clause born in the small-state plan and a workable Article V.
4. The charge that the Convention exceeded its commission fails because it only proposed, and the people ratified.
5. The final design fits a large federal republic better than either opening bid, which is why it has outlasted both.

What you can do: read Article I, Sections 8 and 10, and Article VI side by side on the Constitution page, and mark which lines came from Virginia and which from New Jersey.