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 2nd, 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 4th – 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 4th, 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.
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