Notes of Debates in the Federal Convention of 1787, Part IV: “Utterly Inadmissible”

    The proceedings of the Philadelphia Convention for September 5^th, 1787, being in large part a continuation of the previous day’s discussion of the Committee of Eleven’s proposal for a system of executive elections, unsurprisingly began without very much in the way of preamble. No one, it seemed, was in the least bit interested in restating or rehashing the premise of the discussion at hand, instead preferring to pick up almost exactly where they left off. South Carolina’s Charles Pinkney, having previously voiced his objection to the Committee’s proposal on the grounds that the electors would be ill-equipped to make a sound choice of President and that the appointment would accordingly fall more often than not to the Senate, led the charge by strongly reaffirming these claims while adding at least one other. He still thought that, “The electors will not have sufficient knowledge of the fittest men,” and that they, “Will be swayed by an attachment to the eminent men of their respective States.” And he still thought, consequent to this purported lack of fitness, that, “The dispersion of the votes would leave the appointment with the Senate.” But now he also hastened to predict that the resulting reliance of the President upon the Senate for their appointment and re-appointment would result in the chief executive forming an alliance with them against the House of Representatives. The result, Pinkney explained, would seem to be a cabal wholly resistant to disruption or oversight. The electors, liable to vote for the most popular personality in their respective states, would fail to deliver a majority to any single candidate. The resulting election would fall to the Senate, who would choose the most pliable candidate among the five names submitted for their approval. And the person thus dubbed the President would agree to cooperate with the Senate in reducing the power and autonomy of the House.

    Whether Pinkney’s recipe for corruption moved his fellow delegates to the degree that he intended or a number of them already harbored deep suspicions as the viability of the Committee’s proposal cannot truly be said for certain. Of the next several men in attendance to speak, only two appeared willing to entertain the notion that the plan under discussion might yet hold some merit. George Mason largely seconded Pinkney’s various objections by reaffirming his claim of the previous day that a majority vote by the electors would be an exceptionally rare occurrence. The result, as Pinkney stated, would be a common resort to an election in the Senate, thus making the President wholly reliant on a body from which he should otherwise be independent. “Considering the powers of the President & those of the Senate,” Mason went on to explain, “If a coalition should be established between these two branches, they will be able to subvert the Constitution [.]” Mason’s solution to this problem was simple enough, if telling. His primary concern, he said, would be effectively relieved by striking out the worlds, “If such number be a majority of that of the electors” from the Committee of Eleven’s draft proposal. Notwithstanding his willingness to engage with the Committee’s plan – remarkable enough given the reception if had so far received – Mason’s willingness to thus allow a chief executive to be elected by a plurality rather than a majority spoke volumes about his political priorities.

    As opposed to someone like Pennsylvania’s James Wilson, who began his contribution to the executive election debate by advocating for a popular vote and arguing that a viable chief magistrate needed both talent and public support, Mason was evidently willing to forgo seeking the approbation of the American people if it meant staving off the emergence of a kind of perpetual political conspiracy. Granting that his stated motives were valorous enough – inasmuch as he hoped to prevent the United States from being controlled by an elite cabal of Senators – his solution arguably represented something of a tautology. That is to say, in order to prevent a small number of politically motivated individuals from gaining perpetual control of the executive branch, he proposed to allow a small number of politically motivated individuals to exercise periodic control over the executive branch. There was likely to be a significant difference between the Senators chosen by the various states legislatures and the electors chosen in accordance with regulations established by the same, of course. Senators, by design, were supposed to represent the established elite within contemporary American society, would serve in office longer than any other officer of the proposed national government, and were intended to lend a degree of sober, thoughtful consideration to the legislative process. Electors, by contrast, could come from any class of people, served for only as long as it took them to cast their votes, and were intended to strike a balance between the popular selection of a chief executive and a simple appointment by Congress.

    It was definitely possible for there to be some overlap between these groups depending on how a given state’s legislature decided to appoint its electors, but this was doubtless less important to Mason than the brevity of their stated commission. It may not have been a particularly desirable thing to allow a relative minority of electors – representing, by extension, a minority of the inhabitants of the United States of America – to hold in their hands the power to appoint a chief executive, but at the very least, once their votes had been cast, their purpose would be fulfilled and they would rejoin the general population. Unlike members of the Senate, who could hang around for years after appointing a given President, extorting untold favors in exchange for promises of re-election, the electors accordingly represented little in the way of an ongoing threat. They would be chosen by whatever means their respective states established, they would cast their votes for President in their respective state capitals, and they would then cease to exist as a decision-making body. Shortly enough, of course, they would be summoned yet again, but who could say if the same individuals would be chosen more than once? Who could predict whether this state or that one would adopted drastically different means of choosing electors between one election and the next? Again, it could hardly be said to represent a tremendous improvement over the Committee of Eleven’s plan to allow less than a majority of the American people to indirectly elect the nation’s chief executive, but Mason – like so many of his colleagues – was evidently willing to accept the tradeoff. Ensuring than every American President could claim a popular mandate to govern was, as Wilson observed early on, a substantially worthwhile goal. But it was evidently of greater importance to George Mason that the President, whether or not they were elected by a majority, not be beholden to what was already shaping up to be a tremendously powerful cohort of pseudo-aristocrats.      

    Hugh Williamson closely echoed Mason’s objections, to the point of seconding his motion and thus triggering a vote. Whether influenced by Pinkney or Mason, or having made up his mind the day before, he also seemed to think that the Committee of Eleven’s plan was fundamentally flawed. Off on his own track entirely, however, and in fact having spoken before either Mason or Williamson, was South Carolina’s own John Rutledge. Unlike Mason, who prefaced his remarks by stating unambiguously that, “He had not yet made up his mind [,]” Rutledge declared himself wholly unwilling to even discuss the Committee of Eleven’s proposed system of electors. As he felt that the scheme would, “Throw the whole power into the Senate,” he instead, “Moved to postpone the Report under consideration & take up the original plan of appointment by the Legislature [.]” Unsurprisingly, Rutledge’s motion went nowhere. The Committee of Eleven whose report the delegates were at that point in the midst of discussing had been convened for the purpose of providing the Committee of the Whole with a concrete basis upon which to structure the discussions that followed. The delegates, it was true, had no more settled on the proposed system of electors than they had necessarily discarded the concept of legislative appointment. But neither had they quite finished debating the implications of the former. So far, a number of those in attendance had expressed favorable opinions of the Committee of Eleven’s handiwork. And while many of them had indeed taken issue with certain aspects of the plan in question, no one – or almost no one – seemed ready just yet to cast the whole thing aside. The conversation at hand was moving forward in a constructive manner, and only John Rutledge of South Carolina seemed particularly eager to drop the subject and take several steps back.

    In the end, as aforementioned, Rutledge was left entirely on his own. There were most definitely those among his colleagues who likewise worried after the power which the Senate seemed likely to accrue under the system proposed by the Committee of Eleven. But no one except him expressed anything like a desire to return to a discussion of legislative appointment. Legislative appointment was by that point no longer the issue at hand, having since given way to something like Mr. Wilson’s idea of popular delegation. Whether electors chosen by the people could be trusted, whether they would ever vote in the majority, and what the dangers might have been of allowing the Senate to vote in a contingent election; these were the questions that the assembled delegates were now endeavoring to answer. And having been a member of the body whose work begged these inquires, New York’s Gouverneur Morris naturally took it upon himself to offer definitive responses.

    First, in response to the objections levied by Mr. Mason and Mr. Williamson, Morris offered forth the notion that their common point of contention was quite probably, “Of less consequence than it was supposed [.]” Both men, as well as the aforementioned Mr. Pinkney, thought it unlikely that a majority of the votes of the electors would often devolve upon the same candidate. “Nineteen times in twenty,” Mason had pointedly remarked, this would not be the case, thus throwing most elections to the discretion of the Senate. Morris’s counterpoint to this supposition was both direct and unambiguous. “It is probable [,]” he said, “That a majority of votes will fall on the same man. As each elector is to give two votes, more than 1/4 will give a majority. Besides as one vote is to be given to a man out of the State, and as this vote will not be thrown away, 1/2 the votes will fall on characters eminent & generally known.” This explanation essentially amounted to a two-fold safeguard. First, since each elector was to cast two votes for President, any given candidate would only need to amass slightly more than one quarter of the total in order to emerge victorious. Given that the first session of the United States Congress under the auspices of the Constitution would go on to be comprised of twenty-six Senators and sixty-five Representatives – giving a total of ninety-one electors and one hundred and eighty-two electoral votes – this would place the threshold of election at a what Morris evidently considered to be an eminently achievable forty-six votes. And if this were not enough to ensure frequent votes in the majority, the second feature which Morris pointed out was sure to do the trick.

    As the proposal at hand had stated from the beginning, “The Electors shall meet in their respective States, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same State with themselves [.]” Though the purpose of the clause, “One at least shall not be an inhabitant of the same State with themselves” went unexplained in the text itself, Morris was at this stage keen on making it abundantly clear exactly what it was the Committee of Eleven had been driving at. In essence, it seemed, the delegates so tasked with creating a draft proposal for executive elections had entertained much the same fear which Mr. Pinkney later expressed. Namely, that the electors which they were proposing to empower would not possess, “Sufficient knowledge of the fittest men, & will be swayed by an attachment to the eminent men of their respective States.” Evidently in an effort to counteract this tendency, they accordingly determined that at least one of the two votes to be cast by every elector would need to be bestowed upon a candidate not native to their particular state. The result, they hoped, would be a kind of consensus by default. Every elector may still cast one of their votes for whichever public figure was most prominent in their state, likely resulting in a slew of candidates with small pockets of highly regionalized support. But since a least one vote from every elector must also be cast for someone from outside the former’s local political context, and since there was almost certainly only ever going to be a relatively small number of nationally known figures operating within the broader American political landscape, the votes in questions were bound to accrue to this small handful of popular names. The Governor of New York, by way of example, might naturally receive at least one vote from every elector in that state, but only someone whose merits were known across the nation could count on votes from New York, and Pennsylvania, and Virginia, and South Carolina. And with only forty-six votes constituting the margin of victory, the person ultimately elected President wouldn’t even need to be universally esteemed. “General notoriety,” as it were, would do the trick. To be sufficiently well known in a sufficient number of states.

    This was not, it bears noting, a fool-proof system. For one thing, it placed a potentially distressing amount of confidence in the notion that someone who is particularly well known is necessarily well known for a good reason. If the American republic really was as parochial as people like Pinkney, Williamson, and Mason maintained, it didn’t necessarily follow that forcing electors to cast one of their votes for someone – anyone – not native to their home state would allow them to discern who among that small cohort actually deserved their support. Morris’s assumption seemed to be that someone who rises to national prominence inevitably does so as a result of having rendered valuable service or accomplished some useful objective, but this is manifestly not always the case. In an era wholly lacking mass media, a person’s public reputation might very easily be manipulated so as to project an image of skill and competence which is otherwise undeserved. People in New Jersey, to return to a previous example, might know with some degree of clarity what kind of man the Governor of New York happens to be from having observed his administration from just across the Hudson River. But people in Georgia? Or South Carolina? Or far northern Massachusetts? All they are likely to know is what little has been reported to them, and this might in itself represent an exceedingly skewed perspective. But all the same, the electors in these regions must cast their votes. And if the Governor of New York is the only public servant of any prominence they are aware of who comes from somewhere outside their home state, what choice do they have? And then, of course, there also was the possibility that multiple individuals might emerge during the same cycle of elections possessed of equal amounts of national prominence and national popular support.

    Though Morris did not say as much, another of the assumptions that appeared to underpin his statements in defense of the Committee of Eleven’s proposal was that in any given executive election there would almost always tend to be one person of national distinction who outshines all their competitors. They might not be the only candidate for President who receives votes from multiple states, or even the only candidate whose vote total closely approaches the threshold of victory. But in the end, more often than not, one individual would receive the coveted majority. Circa 1787, this was not necessarily a very controversial idea. Every delegate to the Philadelphia Convention knew it for a virtual certainty that if their work succeeded and the United States of America adopted their proposed constitution, the first man who would be elevated to the newly created office of President would be none other than Virginia’s George Washington. No one was more well-known across the whole of the United States than he, or beloved more universally by his countrymen, or trusted more completely to pursue their collective well-being. To say that the electors described in the Committee of Eleven’s proposal, if forced to cast one of their votes for someone from outside their home state, would inevitably settle upon the single individual best known and best regarded was accordingly something of a given within the realm of the foreseeable future. But what would happen if Washington were no longer in the picture? What if no one among the nation’s shallow pool of national political figures was particularly well regarded? Or what if two or three individuals emerged whose popular followings were as strong as Washington’s had been? Certainly, the votes would be split, there would be a tie, or else no one would achieve the required majority. Granted, no one could say for certain whether any of this represented a particularly likely set of developments. But nor, for that matter, could Morris claim for a certainty that the system he and his colleagues had collectively contrived was in any way equipped to prevent such things from taking place.

    George Mason, for his part, remained wholly unconvinced. Indeed, so unmoved was he by Morris’s aforementioned explanations that he immediately rose to request that, “Those who think there is no danger of there not being a majority for the same person in the first instance, ought to give up the point to those who think otherwise.” As a measure of the depth of the man’s convictions, this mind of appeal is understandable enough. All the same, it didn’t say much for Mason’s patience or his sense of intellectual compassion. Here he was taking part in a debate with some of the most brilliant minds among his fellow Americans, presently on the topic of defining how best to elect a theoretical American executive. And rather than listen to any further explanations as to why the proposal then under examination was well-suited to the needs of the American people or offer any further arguments as to why it was conversely subject to a number of serious flaws, the delegate from Virginia simply tried to cut the conversation short. Whether he was beginning to tire, or felt disinclined to repeat himself, or feared that the majority would end up siding against him, he boldly and bluntly demanded of his opponents that they just admit that they were wrong and acknowledge that he was right. It didn’t work, of course, nor was it ever likely that it would. But while this incident accordingly represents a strangely unsubtle and ultimately pointless gambit on Mason’s part to settle the debate at hand in a manner favorable to his inclinations, it also speaks to the degree to which the American Electoral College was the product of often intense disagreements even late into the process that led to its creation. One day before the matter was definitively settled, one of the most prominent and respected delegates involved was clumsily trying to convince his colleagues that his side of the argument – the side which was shortly to be defeated – was actually the right one. Consensus, it seemed, was still some ways off.

    None of this is to say, mind you, that some amount of agreement wasn’t beginning to coalesce. On the motion earlier submitted by Mason and seconded by Williamson that the victorious candidate for President require only a plurality of the votes of the electors, for example, nine states out of eleven came together to vote in the negative. Notwithstanding this show of unity, however, the very next remark – delivered by Pennsylvania’s James Wilson – swiftly gave way to another round of fairly ardent disagreements. All that he said – or so Madison recorded – was that he desired to strike out the word “Senate” from the Committee of Eleven’s proposal and insert in its place the word “Legislature.” In practice, this would have served to shift contingent elections from the upper house of Congress to the lower house of Congress, a modification which Wilson had suggested near the end of the previous day’s discussion without it having come to a vote. Virginia’s Edmund Randolph appeared to see the wisdom in such a change, particularly as he felt that the Committee of Eleven’s existing plan was bound to produce, “Such an influence in the Senate over the election of the President in addition to its other powers, to convert that body into a real & dangerous Aristocracy.” And Delaware’s John Dickinson was of much the same sentiment, arguing that giving the Senate a contingent vote for President, “Was too much influence to be superadded to that body.” But while Randolph and Dickinson certainly represented powerful voices to have endorse his proposed alteration, Wilson was unlucky enough to find that he had failed to convince one of the most influential voices of all those present. Namely, the chronicler of the debates himself, Virginia’s own James Madison.

    The problem with simply substituting the House for the Senate, Madison explained in response to Wilson, was that it would effectively throw off the balance which the Committee of Eleven had attempted to strike between the interests of the large states and those of the small states. As he understood it,

The proposed alteration would turn the attention of the large States too much to the appointment of candidates, instead of aiming at an effectual appointment of the officer, as the large States would predominate in the Legislature which would have the final choice out of the Candidates. Whereas if the Senate in which the small States predominate should have the final choice, the concerted effort of the large States would be to make the appointment in the first instance conclusive.

It should perhaps come as no surprise given the sentiments which Madison would famously go on to express in the text of Federalist No. 50 – i.e., “Ambition must be made to counteract ambition” – that his thoughts, even at this early juncture, were already fixed to the notion that institutional self-interest was best countered by more of the same. If, as he asserted, the principal object of the design produced by the Committee of Eleven was, “To render an eventual resort to any part of the Legislature improbable [,]” then it made all the sense in the world for the resulting mechanism of election to make the best use possible of every element likely to be in play.

    Were the small states and the large states likely to have different ideas as to what constituted an ideal chief executive? Yes, Madison concluded, they almost certainly were. And were both of these groups likely to act against the other in order to deny their opposite number any manner of advantage? Once again, Madison reckoned, this would most definitely be the case. So then why not, if these two cohorts were going to stand in opposition to each other anyway, channel their animosity towards some desirable end? Madison’s answer, in essence, was, “Why not, indeed?” If the large states were going to exercise the largest share of influence over the votes of the electors – electors being allocated mainly in proportion to population – then it made every bit of sense to give the small states – whose power in the Senate would be equal to that of the large states – an edge in the event of a contingent election. Throw a contingent vote to the House – where the large states would enjoy the same advantage which they possessed in terms of the electors – and the large states would never even try to secure a decisive vote in the first round of a presidential election. On the contrary, Madison asserted, they would simply use the electors to choose a series of candidates which they would then instruct their Representatives in Congress to winnow down to a consensus winner. But if the Senate was responsible for conducting contingent elections, the large states would make every effort they could to secure a decisive victory for their preferred candidate in the first instance rather than have to compete on a level playing field with the small states in the upper house. Granted, this calculus might not always produce the desired result. The large states might not always agree on the best candidate, split their votes, and now and then end up sending an election to Senate. And it would have been hard for Madison to deny that in attempting to avoid contingent elections he was necessarily proposing to give the large states a permanent advantage in the selection of a chief executive. But if a majority vote by the electors was bound to be as rare as Madison supposed – along with Williamson, and Mason, and Pinkney, and doubtless others – then some kind of counterbalance had to be put into place.

    Whether as a result of Madison’s rigorous reasoning or some pre-existing convictions on the part of his fellow delegates, Wilson’s proposal was defeated when it shortly came to a vote. Three states – his own Pennsylvania, Madison’s Virginia, and South Carolina – decided in the affirmative, the remaining seven in the negative. September 5^th, it seemed, was too early to be introducing such drastic innovations. But the conversation at hand, it seemed, still had legs yet. Having quite probably helped defeat his colleague Wilson’s motion, Madison next tried his hand at getting one passed himself. Together with the aforementioned Mr. Williamson, he accordingly proposed to strike the word “majority” from the Committee of Eleven’s proposal and insert in its place the phrase “one third.” While this strongly echoed an earlier, defeated motion by George Mason (noted above) to simply strike out the word “majority,” perhaps Madison felt a more specific substitution would win the approbation of his fellow delegates. More than a few of them, after all, had expressed concern as to the likelihood of a majority vote by the electors. A less open-ended solution than Mason’s may have been all that they desired.

    Mr. Gerry, for his part, did not agree. On the contrary, it struck him that allowing only one-third of the electors to choose the President would effectively permit, “Three of four States to put in whom they pleased.” Contingent elections, granted, would become an exceedingly rare occurrence, but with large states like New York, Virginia, and Massachusetts able to completely dominate the voting between them, Madison and Williamson’s proposal constituted a lateral move at best. Williamson’s attempt to defend his proposal arguably served to affirm this critique. “There are seven States which do not contain one third of the people [,]” he said. “If the Senate are to appoint, less than one sixth of the people will have the power.” Gerry, of course, was not someone to whom this needed to be pointed out. He had been against allowing any branch of Congress to elect the President since before the Committee of Eleven had even been formed. Rather than convince his colleague from Massachusetts of much of anything, therefore, all that Williamson really accomplished was to restate the terms of the debate at hand in the starkest terms possible. Was it better for the President to be elected by one-sixth of the American people, or one-third? Based on the fact that the vote on Madison and Williamson’s proposal ultimately failed by a margin of nine to two, the assembled delegates evidently still held out hope that some third solution might present itself.

    The aforementioned Mr. Gerry offered one such possibility, customarily esoteric though it was. “The eventual election [,]” he proposed, rather than take place in either the Senate or the House, “Should be made by six Senators and seven Representatives chosen by joint ballot of both Houses.” Though doubtless offered in the spirit of conciliation, this nevertheless constituted a fairly bizarre response on Gerry’s part to both the subject and tone of the conversation at hand and to certain of his own comments as delivered in previous day’s sessions. In what, for Gerry, was the present moment, his colleagues were discussing the manner by which a majority vote by the electors might more consistently be secured. And underpinning this discussion was the common fear among a number of those present that the Senate would become too powerful if it were also granted the contingent right to elect the President. Bearing this context in mind – and recalling that Gerry had previously argued against allowing any part of Congress to elect the President by default – his suggested solution seems an odd one indeed. How was splitting the contingent election power between the House and the Senate supposed to encourage the electors to make a decisive choice in the first instance? The Senate, it was true, would hold less influence over the process under Gerry’s plan than under the Committee of Eleven’s, but those six Senators chosen by join ballot of Congress would still wield a tremendous among of power. And for that matter, wouldn’t submitting the appointment of this electoral subcommittee to a joint ballot only end up encouraging exactly the kind of corruption and horse-trading that Gerry had earlier claimed he hoped to avoid? If the combined membership of the House and the Senate knew that whomever they chose would end up anointing the President, what was there to stop them from trading favors? Indeed, why shouldn’t one or the other of these two bodies – normally working in opposition to one another – have thereafter revolved to always produce a contingent election so that concessions might be extracted for the coming legislative session? Elbridge Gerry almost certainly had no answers. And while, as mentioned above, he was doubtless only trying to bring his divided colleagues together, his divided colleagues chose not to take the bait. His proposal, as recorded by Madison, went entirely unremarked.

    It was at this point, near the end of the day’s discussions, that the exhaustion of some of those present arguably began to show. George Mason, who had previously asked those who disagreed with him as to the likelihood of a majority vote by the electors to simply stop disagreeing with him, and whose attempt to ensure that plurality of electors could chose the President rather than a majority had been defeated when it came to a vote, was chief among this cohort. In an evident – and somewhat halfhearted – attempt to once more garner the agreement of his fellow delegates that a majority vote by the electors would indeed be a rare occurrence, he accordingly moved to strike out the word “five” from the Committee of Eleven’s proposal and substitute the word “three,” thus narrowing down the number of candidates which the Senate could consider in the event of a contingent election. Mr. Gerry seconded this motion, having apparently recovered his senses, and the question was put to a vote. The result, unsurprisingly, was much as before. Virginia and North Carolina elected to adopt Mason’s proposed alteration. The remaining nine states conversely elected to drop it. But rather than take this in stride as he had previously when one of his motions was defeated, Mason instead took the opportunity to express his mounting consternation at the mechanism of election to which his colleagues had so far agreed.

    “As the mode of appointment is now regulated,” Mason accordingly declared, he felt that, “He could not forbear expressing his opinion that it is utterly inadmissible. He would prefer the Government of Prussia to one which will put all power into the hands of seven or eight men, and fix an Aristocracy worse than absolute monarchy.” In deference to Mason, this was a perfectly reasonable point. As it stood, in the event that no candidate received a majority of the votes of the electors, a majority vote by a quorum in the Senate – i.e., one half of one half of the total number, plus one – could conceivably decide the outcome of a given presidential election. In light of the fact that the discussion surrounding the process of choosing a chief executive had begun with Mr. Wilson’s suggestion of a simple popular vote, and recalling that the Committee of Eleven had adopted a system of delegated elections so as to preserve, as much as was feasible, the confidence of the American people, this truly was an alarming state of affairs. But what is perhaps more surprising yet than the fact that the ensuing conversations had led the assembled delegates somehow further away from a mutually agreeable solution is that so little time remained within which to establish a workable consensus.

    The delegates did not know this, of course. As far as they were concerned, the debate would continue for as long as it needed to in order for them to alight upon a viable solution. But in point of historical fact, the details of the system now known as the Electoral College would be settled by the end of the following day’s discussion. Bearing this in mind, it is accordingly somewhat astonishing to be confronted with the reality that at the end of business on September 5^th, one of the most respected and influential attendees to the Philadelphia Convention stated flatly to his colleagues that the plan which they seemed inclined to adopt was “utterly inadmissible.” Months had gone by since the Convention was first assembled, and about as much time had gone by since the discussion at hand had first commenced. Compromises had been wrought, and large swaths of a draft constitution had been written. And still, in spite of everything which would seem to promote their general agreement, the men would at length become known as the Framers of the Constitution were still finding ways to disagree with each other in fundamental terms. In time, they would almost certainly arrive at something which most of them could tolerate. They had done exactly that so far, after all. But if Mason’s remarks were any indication, almost no one would be entirely satisfied with whatever it was they came up with.

Notes of Debates in the Federal Convention of 1787, Part III: “Some Capital Objections”

    As mentioned at the beginning of the previous entry in this series, the second phase of the Philadelphia Convention debate which ultimately produced the Electoral College took place in the early days of September, 1787, almost four months after the first phase had commenced at the start of June. Having evidently reached something of an impasse – numerous proposals were floated, none of them gained much traction, and the discussion ended more or less where it began – the assembled delegates accordingly chose to resort to what had become a common tactic by which they endeavored to resolve persistent stalemates. A “Committee of Eleven” was formed, composed of one delegate from each state, and assigned the task of hashing out something like a comprehensive framework by which a national executive might be elected. Comparatively unencumbered, this smaller group could more easily confront and reconcile differences of opinion, lay down a series of concrete proposals, and establish a durable consensus than the larger “Committee of the Whole.” The end result of this diversion was intended to be a comprehensive plan which the broader membership of the Convention could then approach systematically, addressing specific passages rather than general principles. As to why this was felt to be necessary, it may have had something to do with the nature of the discussion that had thus far taken place. Granted, the delegates had yet to agree on anything more radical than transposing the most common form of executive election in use in the states onto the framework of a proposed national executive, but certain novel ideas hade nevertheless begun to gain traction. Wilson’s proposed system of electors had been echoed more than once, and several delegates had expressed their unequivocal distaste for allowing Congress to elect a theoretical national executive. The resulting disagreements needed to be dealt with, and the Committee of Eleven is the method which the assembled delegates chose.

    Deliberate though the Committee of the Whole may have been in assigning the task of drafting a concrete plan of executive elections to a subset of its own members, the assembled delegates were nevertheless largely caught off guard by the report with which they were ultimately presented. Drafted, as aforementioned, by Abraham Baldwin, David Brearly, Pierce Butler, Daniel Carrol, John Dickinson, Nicholas Gilman, Rufus King, James Madison, Gouverneur Morris, Roger Sherman, and Hugh Williamson, the proposal read as follows:

Each State shall appoint in such manner as its Legislature may direct, a number of electors equal to the whole number of Senators and members of the House of Representatives to which the State may be entitled in the Legislature. The Electors shall meet in their respective States, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same State with themselves; and they shall make a list of all the persons voted for, and of the number of votes for each, which list they shall sign and certify and transmit sealed to the Seat of the Genl. Government, directed to the President of the Senate-The President of the Senate shall in that House open all the certificates; and the votes shall be then & there counted. The Person having the greatest number of votes shall be the President, if such number be a majority of that of the electors; and if there be more than one who have such majority, and have an equal number of votes, then the Senate shall immediately choose by ballot one of them for President: but if no person have a majority, then from the five highest on the list, the Senate shall choose by ballot the President. And in every case after the choice of the President, the person having the greatest number of votes shall be vice- president: but if there should remain two or more who have equal votes, the Senate shall choose from them the vice-President.

Recalling that the most recent survey of the efforts of the Convention up to that point had left the selection of the chief executive entirely in the hands of Congress, this proposal indeed represented something of a surprise. Mr. Wilson, as aforementioned, had proposed creating a system of electors as early as June 2^nd, but this had been easily voted down by a margin of 8-2. And While several delegates had notably been quite vehement in their dislike of legislative appointment, they had hardly represented a majority. What had happened during the Committee of Eleven’s discussions to turn things so completely around?

    Virginia’s Edmund Randolph and South Carolina’s Charles Pinkney, Madison records, were quick to ask exactly this question. And New York’s Gourverneur Morris was the one who elected to speak on his colleague’s behalf. The reasons for the switch, it turned out, were several. Echoing the objections most passionately raised by Mr. Gerry, Morris explained that the Committee of Eleven came to agree that, “The danger of intrigue & faction [,]” would be far too great, “If the appointment should be made by the Legislature.” Paying heed to the sentiments of Mr. Wilson, he also said they thought it sensible to take the first choice of President away from the Senate if that same body was to function as a court of impeachment. And then, in response to some of the lingering disagreements that had necessitated the formation of the Committee of Eleven to begin with, Morris explained that he and his colleagues had additionally sought to split the difference between the challenges presented by, “An immediate choice by the people” and the likelihood of intrigue which seemed to follow legislative appointment. Electors, being chosen by the people, “Would vote at the same time throughout the U.S. and at so great a distance from each other, the great evil of cabal was avoided.” As it seemed to the committee members that, “No body had appeared to be satisfied with an appointment by the Legislature,” and an election by people directly simply wasn’t feasible, the creation of a system of electors simply made the most sense.

    Notwithstanding the objections which would shortly arise to Morris’s explanations and the plan in whose favor he was arguing, the value of the Committee of Eleven’s work was very quickly made manifest by the manner in which the proceeding discussions unfolded. Debate would continue for several days more on the topic of executive elections, but the great majority of it would take the Committee’s plan as its central point of departure. As the first man to respond to Morris’s defense of his colleague’s choices, Virginia’s George Mason demonstrated this well enough. First, as recorded by Madison, the gentleman, “Confessed that the plan of the Committee had removed some capital objections, particularly the danger of cabal and corruption.” But this did not mean that Mason though the plan without fault. Specifically, he said, “It was liable to this strong objection, that nineteen times in twenty the President would be chosen by the Senate, an improper body for the purpose.” The unspoken rationale underpinning this complaint, of course, was that under the system of election proposed by the Committee of Eleven, no one candidate for President would be all that likely to receive the votes of a majority of the electors. “Nineteen times out of twenty,” or so Mason seemed to think, no one would reach the desired threshold, and the choice would end up in the hands of the Senate. Granting that Mason could offer no proof to justify this assumption, his claim would nevertheless shortly prove a resonant one.

    Mr. Pinkney, for example, took it up almost immediately. The method proposed by the Committee of Eleven, he stated, was fundamentally objectionable in that, “It threw the whole appointment in fact into the hands of the Senate.” As this would make, “The same body of men which will in fact elect the President his Judges in case of an impeachment,” it could not be adopted under any circumstances. Pinkney’s desire – in common with Mason and first given voice by Wilson – was seemingly to maintain a strict separation between the various branches of the proposed national government so as to stave off any possibility of intrigue and corruption. If the Senate could appoint and remove a President, and if that President could also stand for re-election, then the former would completely control the latter, essentially granting the upper house of Congress a potentially disastrous combination of powers and privileges with nary a check or balance in sight. The Committee’s proposal may have had the appearance of granting the American people the right to select the President by way of a system of electors, but the truth, in Pinkney’s mind, just as Mr. Mason had stated it. The Senate, more often than not, would end up choosing the President, and the country at large would suffer as a result.

    Significant though this exact complaint would shortly prove to be, the topic which was seized upon in the immediate actually stemmed from a separate comment which Pinkney offered upon the fitness of the presidential electors. This might seem a strange thing, in retrospect, since Pinkney was otherwise convinced that the electors were mostly irrelevant, but evidently the man was nothing if not fastidious. “The Electors [,]” he said, which the Committee of Eleven’s plan stated would be chosen, “In such manner as [each state’s] Legislature may direct,” “Will be strangers to the several candidates and of course unable to decide on their comparative merits.” This would seem to constitute a noteworthy observation for two reasons at the very least. First, while the text of the Committee’s proposal made no comment one way or the other, it is clear that Pinkney envisioned the electors as possessing a significant degree of agency. They would be, “Strangers to the several candidates [,]” he said, “And unable to decide on their comparative merits [.]” If the electors did not actually have anything upon which to decide, Pinkney would have had no cause to raise this particular concern. At the same time, the fact that he thought they would be “strangers” to the candidates speaks to another important assumption held by Pinkney which ought to be carefully noted.

    One of the reasons Wilson’s initial proposal of simply holding a popular vote very quickly gave way to competing systems of electoral delegation was that the sheer size of the American republic made any kind of national election a tremendously challenging logistical endeavor. Beyond having to collect and tally votes and then transmit the results in a timely fashion, there were the barriers which physical distance imposed upon the very idea of voting itself. Electing a state legislator or a national legislator was straightforward enough, provided the relevant districts were fairly small and the candidates reasonably well-known. But even imagining that an elector chosen to represent a given state was familiar enough with the priorities and desires of their constituents to speak with authority on their behalf, how were they supposed to decide which of any number of the potential candidates for President was best suited to the job? By what metric were they supposed to evaluate the contenders? What knowledge were they supposed to draw upon? There were barely any roads in large swathes of the contemporary United States, let alone anything that might pass for a national media infrastructure. People read newspapers, to be sure, what few of them there were, and corresponded, and sometimes travelled. But most of the rest of the country remained distant and somewhat foreign to any given section thereof. Bearing this in mind, while it was sound enough in concept to rely on a system of electors to evaluate and choose the person who would ultimately serve as President, there were still a number of practical hurdles which would prevent this kind of arrangement from always functioning as intended. Pinkney’s observation, as cited above, brings this tension into focus, revealing as it does the competing pressures which the assembled delegates had tasked themselves with balancing.

    If Mason and Pinkney represented the more pessimistic and practical side of the discussion of September 4^th – drawing attention, as they did, to the flaws in the Committee’s plan as it would function in the immediate – the next several delegates to be recognized by the chair arguably embodied a less cynical outlook. The first of these was Georgia’s Abraham Baldwin, a Connecticut-born and Yale-educated lawyer and educator who had also served on the Committee of Eleven. He naturally felt that the plan he and his colleagues had labored to draft was, “Not so objectionable when well considered,” and then attempted to respond to the apprehension voiced by Pinkney. In what would prove to be a remarkably prescient observation, Baldwin stated that, “The increasing intercourse among the people of the States, would render important characters less & less unknown; and the Senate would consequently be less & less likely to have the eventual appointment thrown into their hands.” Granting that this statement would surely have done little to address Pinkney’s immediate concern, it did speak to an otherwise unspoken dimension of the larger project at hand.

    Obviously, if the document which the delegates had thus far assembled was to have any hope at all of gaining nation-wide acceptance, it would need to speak in large part to the concerns and priorities of the moment. There wouldn’t be much point in creating a new governing charter for the United States of America if the majority of its provisions could not yet be practically applied. That being said, there were most definitely measures which the delegates would have preferred to enact above those which they ultimately felt were the most practical and practicable. The result of these competing priorities was a somewhat ambivalent attitude among many of the individuals in question. A number of the delegates privately questioned whether whatever plan they came up with – if it was ever actually adopted – would last out the next decade, and their inclusion of a mechanism by which the thing could be amended constituted a powerful admission on their part that their work had come up far short of perfection. That being said, there was definitely also a sense among most of those in attendance that the product of their efforts should have been as “future-proof” as possible. To be sure, some parts of it would need to be modified as provisions designed in theory were tested in actual practice. But since alterations could only be made at the behest of a significant national consensus, the plan which was being wrought then and there in Philadelphia would always be likelier to stand as it was than give way to something else. It was necessary, then, for the delegates to take the long view as much as they could, and to create a plan of government that anticipated the needs the changing circumstances of the American people as much as was feasible.

    Pennsylvania’s James Wilson, for his part, very much shared Mr. Baldwin’s sentiment. “He thought the plan on the whole a valuable improvement on the former,” Madison recorded. “It gets rid of one great evil, that of cabal & corruption; & Continental Characters will multiply as we more & more coalesce, so as to enable the electors in every part of the Union to known & judge of them.” Notwithstanding the addition of the phrase “Continental Characters” – an expression which has sadly fallen out of favor – Wilson’s argument was very much that of his colleague from Georgia; namely, that in time the inhabitants of the various states would draw closer to each other and a truly national political consciousness would take shape. Electors might struggle in the meantime to decide upon the merits of presidential candidates about whom they knew very little, but that did not mean that the plan which sought to empower them was fundamentally unsound. Indeed, the only aspect of the Committee of Eleven’s proposal which Wilson found himself unable to support was the delegation of otherwise inconclusive presidential elections to the upper house of Congress. He did not disagree that it was possible for the candidate with the most votes for President to nevertheless come up short of a majority, nor with the contention that the resulting contingent election in Congress might become a source of intrigue and conspiracy. Wilson’s solution? “Refer the eventual appointment to the Legislature […] and confine it to a smaller number than five of the Candidates.” As if anticipating those who would claim that such an alteration would make little practical difference, he went on to observe several key points before concluding.

    In the first place, Wilson said, there seemed to him less danger of corruption in throwing a contingent election to Congress than most of his colleagues seemed to anticipate. Any executive election that is thrown to Congress, he argued,

Would be restrained to certain designated objects of choice, and as these must have had the previous sanction of a number of the States: and if the election be made as it ought as soon as the votes of the electors are opened & it is known that no one has a majority of the whole, there can be little danger of corruption.

No one was arguing that Congress should be able to choose whomever it wished to take office as President, nor for a substantial pause in proceedings between the time that the electoral votes were tallied and a contingent election was forced to take place. The moment it became known that no candidate possessed a majority of the votes of the electors, proceedings for a contingent election would be set in motion, thus leaving very little room for extensive plotting or intrigue. Granted, the members of Congress so delegated could decide to elevate the candidate with the fewest electoral votes among those names submitted for their approval, but the severity of the offense in question could be limited with relative ease by limiting the candidates to be considered to the top three rather than the top five vote-getters. By also shifting the location of contingent elections from the Senate to the House – a body which, “Will be so often changed as to be free from the influence & faction to which the permanence of the Senate may subject that branch” – Wilson believed that the dangers certain of his colleagues anticipated as flowing out of the Committee of Eleven’s proposal could be rendered eminently tolerable.

    Virginia’s Edmund Randolph voiced his essential agreement with Wilson’s proposed alteration, though he did so in a more or less qualified manner. Randolph, Madison recorded, “Preferred the former mode of constituting the Executive, but if the change was to be made, he wished to know why the eventual election was referred to the Senate and not to the Legislature?” Evidently, the gentleman from Virginia had yet to be wholly convinced by any of the arguments that had thus far been offered by the likes of Morris, Baldwin, or Wilson, and would still have preferred the national executive to be chosen by Congress. That said, if a system of electors was going to be implemented, Randolph wanted to know why Wilson’s proposal shouldn’t have been adopted as well. “He saw no necessity [,]” Madison recorded, in granting the contingent election to the Senate, and in fact perceived, “Many objections to it.” Among the latter, Randolph specifically wondered whether, “The advantage of the eventual appointment would fall into the hands of the States near the Seat of Government.” As with Mr. Pinkney’s concern for the ability of the electors to adequately judge of the merits of presidential candidates, this misgiving embodied exactly the kinds of competing priorities which the assembled delegates were constantly required to consider. Why was Randolph concerned that the Senators nearest the seat of government might end up dominating a theoretical contingent election? The answer, quite simply, was that geography would be in their favor.

    Under the rules of parliamentary procedure as they are most commonly applied in jurisdictions whose political culture is directly derived from or has been heavily influence by Westminster-style representative government, a legislative body comprised of elected representatives may only fulfill its statutory function if a simple majority of the whole number of its members are present. This majority, which permits the body in question to actually transact its business, is called a quorum. If a quorum is not present, no action of any significance can be taken. And if a quorum is present, it is as though the whole membership is in attendance. Under the terms of the proposal submitted by the Committee of Eleven to the Committee of the Whole at the Philadelphia Convention on September 4^th, 1787, following the appointment of electors and the casting of their votes, “The President of the Senate shall in that House open all the certificates; and the votes shall be then & there counted [.]” As this action is supposed to take place, “In that House,” in which the President of the Senate holds their office, it would therefore become necessary for a quorum to be present in the Senate for the votes of the electors to be counted and certified. With thirteen states in total – assuming that Rhode Island, in spite of declining to send a delegation to the Convention, nevertheless decided to ratify the proposed constitution – a quorum in the Senate would thus amount to fourteen members. For a procedural task such as counting and certifying votes in an executive election, this would seem perfectly acceptable. Ideally, those fourteen Senators should not be required to do very much more than acknowledge the final tally and read it into the record. But in the event that no candidate for President receives a majority and the Senate is then made responsible for filling the executive office – a outcome whose likelihood, in the absence of modern polling, would remain a mystery until the votes are actually gathered and counted – which and how many sitting Senators are present becomes suddenly of tremendous importance.

    Under these kinds of circumstances, one might fairly ask, in which contingent elections in the Senate would pretty much always occur without warning, why wouldn’t the Senators in question simply stay in the nation’s capital throughout the period of the vote? If it is their business during a particular interval to potentially elect a President, why should they not remain in place at all times during said interval? The answer, in essence, is that it just wouldn’t be convenient. Under the best possible conditions, it could easily take a week by coach to go from Savannah, Georgia to New York City, and far more than even that if one had to cross mountains or travel in winter. Bearing this in mind, the timing of national elections under the proposed constitution could very easily have a tremendous impact on the final results. If they were held very late in the year, for example, travel would be that much harder for those having to cross particularly large distances either to deliver the electoral votes of a given state to the seat of government or to take up their seat in Congress for the purpose of certifying the final tally. And if the concomitant certification period fell anywhere near to Christmas, individual members of Congress whose homes were eight, or ten, or twelve days distant might easily be forgiven for trusting their colleagues to see to their shared responsibilities and setting off from the capital as soon as they possibly could. Under such conditions, and in the event that an otherwise mundane Senate session gave way to a contingent election for President, how many Senators would be required to attend for a President to be legally appointed? As the Committee of Eleven’s proposal applied no specific condition in this regard, the default answer is a simple majority. And who among the Senate’s membership would be likeliest to arrive in time to be a part of this majority? Those who lived closest to the capital, of course.

    The next man to speak, Pennsylvania’s Gouverneur Morris, took up Randolph’s complaint in only the most general sense. “The Senate was preferred [,]” he said, “Because fewer could then say to the President, you owe your appointment to us.” He also took the opportunity to add that it struck him, “The President would not depend so much on the Senate for his re-appointment as on his general good conduct.” As to Morris’s first point, he seemed to view the issue which Randolph sought to raise from almost the exact opposite perspective. Randolph felt that the smaller the number of people who ultimately elected the President, the worse off the country at large would be. Doubtless the root of this concern was the notion that a handful of people – say, eight of fourteen Senators – would be easier to bribe than several dozen or several hundred. Morris conversely appeared to see the smaller number as some kind of guarantee against the elevation of an executive beholden to such a large group of people that he proved incapable of accomplishing much else while in office but servicing their various desires. While it would seem fair to say that the scenario Randolph wished to avoid was the likelier outcome of the two, it is nevertheless worth noting the anxiety which Morris – the self-appointed spokesman of the Committee of Eleven – appeared to attach to the notion of a chief executive beholden to a particularly large constituency. And as to his second point – that a President was likelier to rely on his own good conduct for re-election than the patronage of the Senate – let it simply be said that Morris thereby marked himself out as one of the delegates – along with Baldwin and Wilson – who believed a majority vote by the electors a more probable outcome than not.

    At his juncture, without any votes having been called, the Committee of the Whole adjourned for the day. The proposal submitted by the Committee of Eleven had most certainly made an impression on the assembled delegates. All the same, it was thought a more constructive course of action to allow copies of the scheme to be taken away so that each man might better prepare himself to discuss its merits or its deficiencies than to proceed as they had been without any specific preparation. As it stood, a great many points had been considered on the topic of executive elections. The Committee of Eleven had unexpectedly embraced the concept of electors which Mr. Wilson had first proposed at the beginning of June. Some delegates had taken to this sudden change as representing a significant improvement on legislative appointment. Some had already begun to pick holes in the Committee’s scheme, particularly as it appeared to them to place excessive power in the hands of the Senate. But as each side of the resulting debate fielded substantially robust arguments without appearing to give much ground, nothing resembling a robust consensus looked all that likely to emerge. Arguments still needed to be played out to their fullest, and certain men still needed to give satisfaction to their egos.