How Law Employs Historical Narratives: The Great Compromise as an Example

Although historians base their interpretations on facts, they often use the same facts to tell a variety of stories. Of the varying stories, which gain acceptance by society and the courts? To explore this question, this Article examines the historiography of the Great Compromise. At the 1787 Constitutional Convention, the deputies debated how to elect members of the House and Senate.

Should each state have equal representation or should each state have representation based on its population? The heavily populated states wanted population-based (proportional) representation while the less populated states wanted a one-state-one-vote system. After difficult debates, the Convention, by a narrow vote, chose proportional representation in the House and equal representation in the Senate—the Great Compromise. The historians’ stories acknowledge that the issue of representation sparked sharp debates.

One historian observed that no other question at the Convention evoked the same range of responses: “[E]verything from heavy-handed threats and poker-faced bluffs to heartfelt pleas for accommodation, from candid avowals of interest to abstract appeals for justice.” Yet, historians disagree on how the deputies dealt with disagreements and how they dealt with the close vote on the Great Compromise. Some found a convention that favored a search for conciliation. Others found a convention focused on a political theory, while others saw a pragmatic compromise, and still others found conspiratorial deals. This Article discusses which of these accounts a court will employ in its opinions.