Today in our continued exploration of why the US is the way it is, we get to Article I. Why did the framers design Congress the way they did? Why did the small states come out so far ahead? And what, potentially, would James Madison think if he saw its operation in 2026?
To help us navigate the thoughts of men long-dead, we talk to Madison scholar Jack Rakove. He shares his insights on representation, the electoral college, and much more.
Click here to listen to our episode on the Articles of Confederation, our shaggy dog of a first draft of government!
Transcript
why congress is the way first 16.mp3
Nick Capodice: I am here.
Hannah McCarthy: Oh, okay.
Nick Capodice: Yeah, I'm also here. I've been here the whole time. It's pretty bouncy. Do you think it's kind of bouncy?
Hannah McCarthy: It's pretty bouncy. Bouncy house.
Nick Capodice: We're in a large room, everyone. So just, you know. I hope it's okay. Just for today, though. Hannah. I have used variations on these clips so often now that I wonder if they're even necessary.
Hannah McCarthy: What clips?
Nick Capodice: These ones. I'm gonna put some heart pounding cable [00:00:30] news music under this.
Speaker 4: Only about 1 in 10 Americans think Congress is doing a good job.
Speaker 5: You know, I just want to say to Congress, stand up and applaud. You're usually hated, but usually not this hated. You're reaching or at least tying record highs in terms of disapproval. Hello. 86%. 86% of Americans disapprove of Congress. That is tied with November of 2013.
Hannah McCarthy: The tried and true news clips of people disapproving [00:01:00] of the way the US government is doing its job.
Hannah McCarthy: Yeah.
Hannah McCarthy: What is the congressional approval rating right now, by the way?
Nick Capodice: As of this morning, June 23rd, 2026, it is at 24%. That is 24% of polled Americans approve of the job Congress is doing.
Hannah McCarthy: And now, is that especially low?
Nick Capodice: It is especially low. It's been lower. But the record low is in 2011. And the record high was in the wake of September 11th, 2001. But it's low. [00:01:30] And it got me thinking. Hannah got me thinking of that historical fantasy. If under a pale moon, the cemeteries rattled and the specters of those that wrote the manual, the ones who designed our system of government. If they rose from the earth and looked about, what would they say?
Hannah McCarthy: Well, we can't do that.
Nick Capodice: We can't do that.
Hannah McCarthy: We spend an awful lot [00:02:00] of time in this country, maybe in this world, wondering what the dead would say, you know, if they rose from the grave, which, if history is any indication, does not seem to be on the docket.
Nick Capodice: All right. So barring that, today I got the next best thing. You're listening to Civics 101, the podcast refresher course on the basics of how our democracy works. I'm Nick Capodice.
Hannah McCarthy: I'm Hannah McCarthy.
Nick Capodice: And in our series Celebrating and examining our 250th anniversary as a nation, we often ask ourselves, why are we like this? And [00:02:30] today it's all about article one. Why is our Congress the way it is? We're talking representation and apportionment, legislative powers, successes and failures, all of that stuff. And we're doing it through the lens of the people who created the Constitution. One person in particular, James Madison. So stick around.
Hannah McCarthy: All right, Nick, your rather gruesome cemetery scene. And I say that because [00:03:00] I never got over the thriller music video as a child. It still haunts my dreams. Uh, being a bit of a nonstarter. How should we talk about what the framers thought?
Nick Capodice: Well, I reached out to this guy.
Jack Rakove: You know, for myself as Madison's alter ego. You know, in terms of my current work.
Nick Capodice: This is Jack Rakove.
Jack Rakove: Hi, everyone. I'm Jack Rakove. I am the William Robertson Coe Professor of history and American Studies and professor of political science. [00:03:30] And by courtesy Law Emeritus, meaning I'm retired at Stanford University, the author of eight books and the editor of many others.
Hannah McCarthy: All right. He's done this before, hasn't he?
Nick Capodice: Yeah, he sure has. Jack's one of the OG Mad Men. Can I refer to James Madison scholars as Mad Men? Or is that, like, been done to death mad men? Yeah, because Madison men.
Hannah McCarthy: Are not because they're mad men.
Nick Capodice: No, no, they're called.
Hannah McCarthy: Watched the TV show.
Nick Capodice: Yeah, but they're called Mad Men because the ad agencies were [00:04:00] on Madison Avenue.
Hannah McCarthy: No, I know I.
Speaker 7: Yeah, I know that, Nick.
Nick Capodice: But in addition to his books, mostly on Madison, Jack has contributed to myriad briefs for the United States Supreme Court, notably in Trump v US, the presidential immunity case, and the recent Arizona redistricting case. So, Hannah, let us start with what the Constitution was born out of. Give us a quick primer on the Articles of Confederation.
Hannah McCarthy: All right. Absolutely. We have a link to an entire episode [00:04:30] on this in the show notes. But in brief, the articles were our first constitution. They outlined our government initially. So right after the Continental Congress appointed a committee of five to write the Declaration of Independence, they also appointed a committee of 13 to draft the articles and. And they were a disaster. Uh, every state for itself. Barely [00:05:00] any centralized government whatsoever. No executive power to speak of. And they were nigh impossible to amend. So when we were creating a new constitution, our goal was in part to fix our mistakes.
Jack Rakove: For starters, one has to assume, particularly if you look at things from James Madison's vantage point, what you wanted to do in the wake of the effective collapse, the framers would have said [00:05:30] the imbecility of the Continental Congress under the Articles of Confederation was you wanted to create a national government that would be fully empowered to enact, execute and adjudicate its own laws. And once you get to the matter of legislation, the conventional wisdom was you need to have a bicameral legislature.
Hannah McCarthy: All right. Why was a bicameral legislature. Conventional wisdom.
Nick Capodice: Well, first off, the vast majority of colonies now states they [00:06:00] already operated under a bicameral legislature, which, by the way, is two chambers of Congress. Not to mention it's what we did in the old place, the Parliament of Great Britain, where we had the House of Commons and the House of Lords.
Jack Rakove: That raises interesting questions about if you have two houses, what is each one going to represent? And Madison in particular, and no longer his allies, people like James Wilson and Robert Morris, Gouverneur Morris in Pennsylvania, Rufus [00:06:30] King from Massachusetts, and so on. They were committed to the idea that you needed to have some form of proportional representation in both houses of Congress that you had to get. Absolutely. Get rid of the one state, one vote rule, which had been the model of decision making in the kind of Congress going back to 1774. So that absolutely had to be abandoned. But that leaves open the question of what rule of apportioning representatives across the States or among the States [00:07:00] in two houses. Would you apply? Would it be strictly population? Would it be population plus property? And Madison felt that legislative power by itself was very difficult to define and defined in the sense of limiting. There was a phrase he uses later in life as the plastic faculty of legislation.
Hannah McCarthy: The Plastic Faculty of legislation.
Nick Capodice: Yeah. Plastic isn't bendy, changeable. Madison talks about this in [00:07:30] Federalist 48 and in other places later in his life. The thing is, when you constitute a government, especially a national government, you want to be really specific about who has what powers.
Jack Rakove: But theoretically, Madison felt it was actually quite difficult to do because legislative power is, by its nature so supple and so complex that legislatures could always, in a sense, manipulate or mask their or their more, you know, their, their ambitions [00:08:00] through devising complicated techniques of developing laws.
Hannah McCarthy: So basically, the legislative branch is the most difficult to pin down because that branch makes the laws and those laws can be complex and technical, and the legislature can nudge the rules one way or another, potentially to grant themselves more power.
Nick Capodice: Exactly. So now we're going to talk about some plans. Hanna, to famous plans come out of the arguments to determine how [00:08:30] our Congress is gonna be constructed. The Virginia plan and the new Jersey plan. So Madison drafted the Virginia Plan, which has in it a bicameral legislature. And it is determinate on population. And representatives from smaller states are like, oh, man, no way. That means we're not gonna have any people in there. And so small states back the new Jersey plan, which says we should have one chamber of Congress, and every state gets the same amount of representatives, regardless [00:09:00] of population.
Jack Rakove: The decision of July 16th to give each state an equal vote in the Senate, we call it either the Great Compromise or. For reasons I don't really agree with the Connecticut Compromise because I don't think Connecticut played any special role here, although the Connecticut delegates were quite active. But they weren't the decision makers. But you know that vote. That vote was not a compromise in its own name. That's to say the vote on July 16th, which is when you get the equal state vote in the Senate, was five states to [00:09:30] four states with one state, Massachusetts, divided. So they said, look, you know, we you know, we support most of the legislative outcomes you want, but we're not going to we're not going to agree to this without preserving the equal vote in at least one house. So it was always about the second house. It was always about what would happen in the Senate. And massive position was, you know, we're just going to use a placeholder now.
Hannah McCarthy: Do the small states come out ahead [00:10:00] here? The Senate is an extremely powerful body, and each state gets two senators, no matter how many people live there.
Nick Capodice: Yeah, they kind of did. And Madison thought so too. And to that point, Jack asked me a very interesting question.
Jack Rakove: You asked my students and you could ask, you know, whoever your listeners are, and this is a trick question. Uh, Nick so, so pay attention. Do we ever vote on the basis of the size of the state in which [00:10:30] we live?
Nick Capodice: So do we. Hannah.
Hannah McCarthy: I don't know if I know what that means. Can you repeat that?
Nick Capodice: Do we ever vote for a candidate because of the size of our state?
Hannah McCarthy: I comprehend the words that are coming out of your mouth, but I do not understand their meaning.
Nick Capodice: This exact same thing happened to me when Jack asked me and I was like, uh, no, I don't think so. But think of it this way. The main reason people are gonna vote for one candidate or another is based on where [00:11:00] they stand on certain topics. Big ones. Right? Speech, immigration, war, taxes, healthcare, etc.. What on earth does the size of the state have to do with it?
Jack Rakove: The way we vote is based on the issues we care about. And you know, and they have nothing at all. You know, if it matters a lot, if you live in a city, if you live in the countryside, if you're, you know, if you're for if you're farming corn or soybeans [00:11:30] on the west bank of the Mississippi, in Iowa or on the east Bank in my native state of Illinois, farm subsidies or whatever will define what your interests are. And Madison's argument is, you know, against this, he felt he could. Wear the smallest small size down by force of argument. And because basically he's right. If you want to say that the states have, should have, and should have an equal vote on the basis of the interests they represent or they possess, then you have to be able [00:12:00] to identify what those interests are. But the large states don't have common interests. So you compare Massachusetts with Pennsylvania and Virginia. They have very different kinds of economies. They have very different populations. If you guys could ever tell me what will bring the small states together on the one hand or the large space on the other hand, you might have a good argument. The small states can never do it.
Hannah McCarthy: All right. This is a famous small state versus big state battle. The small states are like, if we don't have equal representation [00:12:30] with the big states, we'll lose out on the small state issues. But there aren't any small state issues precisely.
Nick Capodice: But small states hold out. And Madison didn't want to toss the whole thing in the midden and start over with the new convention and a new constitution. So this is just something the guy had to swallow.
Jack Rakove: When Madison came to the state vote. He said, you can't defend it on its merits. We just have to accept it was a necessary compromise at the convention. And so we're stuck with it. We [00:13:00] got to defend it on principle. It's part of the package. The overall good will still be served by ratifying the new constitution, not by rejecting or modifying it. So there we are.
Hannah McCarthy: There we are. But did Jack have any thoughts in terms of how we're doing 250 years later? Does anything stick out as being opposed to Madison's intentions?
Nick Capodice: Absolutely. Hanna and I have a few proposed remedies to the congressional malaise. But [00:13:30] first, we got to take a quick break.
Hannah McCarthy: We're back. You're listening to civics 101. And, Nick, you were just about to tell me. About what things today, Congress wise, are at odds with how James Madison envisioned our great American experiment.
Nick Capodice: I certainly was. And here is the first thing that nobody in the 1780s would have expected the notion of career [00:14:00] politicians. Here again, is Madison scholar Jack Rakove.
Jack Rakove: Okay, now here's Madison's position, though. If you're a political scientist today, you would say the the independent variable that drives political behavior today is the desire to be reelected. Right. That, you know, we assume that politics has been professionalized, that once you're elected to Congress, getting reelected is your dominant personal ambition. [00:14:30] You know, you know, they just they just want to stay on forever. Maximum era when holding office was thought really to be vocational in nature. It wasn't your profession, wasn't your career. You could be a planter. You could be a merchant, you could be a lawyer, and so on.
Hannah McCarthy: All right, so you're a professional first and a politician second.
Speaker 7: Yeah.
Nick Capodice: And this is good because you'd come to Congress with a unique expertise. You were a wheat farmer, you sold felt hats, you made boats, [00:15:00] whatever.
Hannah McCarthy: And often you were a lawyer.
Nick Capodice: Yes. That was and is true. Hanna, about 40% of members of Congress right now have a law degree. But do you know the number one prior occupation for somebody who is sitting in the House of Representatives?
Hannah McCarthy: Like right now.
Nick Capodice: Right now.
Hannah McCarthy: I'm gonna guess, given that 40% of them have law degrees. Lawyer.
Nick Capodice: Huh? Something beats it out. Something they did since they were a lawyer and before they came to the House of Representatives. And [00:15:30] that is, they worked in politics already. And I gotta add, this is really new.
Jack Rakove: The mean term of service in the House of Representatives from 1789 down to about 1900 plus or minus, but 1900s. The turning point was three years, meaning if you do the arithmetic, the vast majority of members served 1 or 2 terms, and then very few senators and a few did. But very few senators served two terms [00:16:00] until the late 19th century.
Nick Capodice: And look, it's understandable that our first few congresses in the 1800s were absent career politicians because we were a fresh new country. But in 1979, a very lucky year for me. Only 29 members of the House were former politicians. But in 2019, 171.
Hannah McCarthy: Huh? Is there a repercussion for that?
Nick Capodice: Well, I am not going to put words in Jack's [00:16:30] mouth, but to me, it seems like the career politician is something that could lead to the much bigger problem. So, Hannah, what skills would you say? Somebody who has worked in politics for a long time has uh.
Hannah McCarthy: I mean, I would say foremost, they are politic. They know how to negotiate. They understand the system ostensibly, um, and how to maneuver [00:17:00] it to benefit their constituents ostensibly or themselves, you know, um, and frankly, I think a lot of them are pretty good at getting reelected.
Nick Capodice: Yeah. And that last one, Hannah, that leads to Jack's primary concern.
Jack Rakove: So, Nick, I'm doing a lot of work on constitutional failure. So from a madisonian perspective. So I've been giving a lot of thought to this. But Madison's standard assumption, this [00:17:30] is Federalist 51. You may or may not know this text ambition must be made to counteract ambition. The interest of man must be connected to the constitutional rights of the place. And so the very famous passage from The Federalist, almost as famous as the stuff from Federalist ten. Party loyalty is, is, is, is much stronger than, um, you know, kind of strict loyalty to one's institution.
Hannah McCarthy: Okay. So [00:18:00] this is it. And we have talked about this on the show before. Partizanship. And that includes loyalty to the party to party leadership, resulting in Congress not necessarily acting in the best interests of their constituents, of the people.
Nick Capodice: Yes. An utter devotion to your party has swung back and forth between the two parties over the centuries, but there is a [00:18:30] marked rise in Partizanship full stop party over everything else. In the 1990s. And it hasn't gone down.
Jack Rakove: It's [00:19:00] more profound for the Republicans is for the Democrats. Because if you're a Republican politician, your principal fear in life is the fear of being primaried. And particularly if you cross Trump. It doesn't work in every case, but it has worked in a number of cases. In another age before, before we lived in an era of [00:19:30] hyper partizanship, you know, you'd find legislators who worked together would, you know, would would learn how to collaborate. If you want great examples of this. Just think about the passage of the of the Voting Rights Act and the Civil Rights Act of 64 and the Voting Rights Act of 1965. And those were collaborative efforts.
Hannah McCarthy: Well, one way to eradicate Partizanship is to get rid of parties entirely. We have had so many listener emails over the years asking, why don't we or can't we [00:20:00] get rid of the two party system? And yes, there are a bunch of democracies in the world that have multi-party systems. But the way our elections are set up, there seems to be no way to stop being a two party system.
Nick Capodice: That's absolutely right. And I asked Jack, do you think there are any remedies to all of this? And he said, right now we are having a reckoning with gerrymandering, in particular states drawing legislative [00:20:30] districts to ensure one party wins over the other. And that creates voter apathy, and that creates a lack of faith in Congress. And as a funny side note, James Madison was perhaps the very first victim of a gerrymander, but that was in 1789, before they even had a name for it. Anyways, here is one of Jack's potential solutions.
Jack Rakove: You know, one way to solve the gerrymandering probably. Problem is let's get rid of districts. And you know, after reading more about [00:21:00] this, I mean, there's a big part of this. If you if you have access to Max Farron's records of the federal Convention of 1787, it's available online. Go to volume two, page two, 4241 and read Madison's long speech. It's a seminal speech because it illustrates two things. One is there's no obvious idea of exactly how should you reelect the House of Representatives? You know, kind of figure, you know, remember in decision about how you do that is left [00:21:30] under the elections clause, article one, section four, not section eight, but section four is left to the states state legislatures to resolve. Madison did not trust the state legislatures to do anything right. Always, he was deeply distrustful of the state legislatures. But then also, you might decide that there is one optimal way to elect representatives. So if you want to solve the gerrymandering problem, if you say, okay, constituent, you know, congressmen represent their constituents, it's valuable. [00:22:00] But, you know, a whole delegation can set up mechanisms to do that. You know, you can I mean, they can create staffs, which with responsive individuals and, you know, from coming from different communities, you could kind of allocate telephone calls on that basis or whatever. And you could, you could get rid of the gerrymandering problem because you're not going to have districts.
Nick Capodice: And the very last potential remedy that Jack talked to me about wasn't about Congress specifically, but I think it's important to include it here, something that has been [00:22:30] argued about as long as I've been a sentient being, our unique system of electing a president.
Hannah McCarthy: The Electoral College.
Nick Capodice: The Electoral College.
Jack Rakove: Well, I think I think the most relevant point is the presidency. And, Nick, it's important to know that all the critical decisions about the presidency really came, were taken to the very end in Madison's language. The [00:23:00] whole discussion of subject matter, it was a precis, was the result of tedious, if tedious and reiterated discussions or something like that. It's. In his letter to Jefferson of October 24th, 1787. Tedious. I think it's tedious if reiterated discussions. So I think that's you know, so the basic idea about the presidency is it's not that the Electoral College was the most attractive alternative is that it was the least unattractive [00:23:30] alternative. And, um, you know, the real problem with it was, I think correctly, is they found it very hard to imagine how a, um, you could have a national popular election of a president that would be decisive in the sense of getting to a majority. And so long as Washington wants to be president, it doesn't matter what the rules are, you'll get the same result. [00:24:00] But in a post-washington world, the assumption is how do you how are you? How are you going to define genuinely national characters? And how would you avoid a lot of favorites on voting? So, but yeah, they decided on this at the end. But you know, if you get to 1796, if you had a popular election, it would be quite effective. You have two, you have two big name candidates, John Adams and Thomas Jefferson, both both by that time quite well known, you know, quite Wait a minute. And, you know, [00:24:30] you could have decided between them. So I think that's the I think that's the single. That's the one example I would really emphasize.
Hannah McCarthy: It is interesting to me that the things that still to this day cause a lot of consternation, equal representation in the Senate and the Electoral College [00:25:00] and the Electoral College and the Electoral College. One was a tough pill for Madison to swallow, and the other was a. Let's just get this done, we'll fix it in post kind of thing.
Nick Capodice: Yeah. And it points to the fact that our system is not, nor was it ever perfect. But more perfect is what we reach for.
Hannah McCarthy: Supposed to be.