Notes of Debates in the Federal Convention of 1787, Part VIII: The Long and Winding Road, contd.

    It terms of the gap which may fairly be perceived between the modern, popular interpretation of what the Framers intended when they designed the Electoral College and the assumptions which they gave voice to “in the room where it happened,” further evidence for the existence of the same may be found throughout the discussions which followed the introduction of the Committee of Eleven’s proposal on September 4^th. Speaking on that very day, for example, George Mason and Charles Pinkney between them raised what would end up becoming one of the most significant points of contention in the conversation to follow. Specifically, Mr. Pinkney expressed his belief that, “The Electors will be strangers to the several candidates and of course unable to decide on their comparative merits [,]” the consequence of which – according to Mason – was bound to be that, “Nineteen times in twenty the President would be chosen by the Senate [.]” What is particularly noteworthy in these comments from the perspective of the early 21^st century is the extent to which they reveal how certain of the men involved in creating the Electoral College envisioned the way it would work. Pinkney’s issue – much like Gerry’s issue with allowing the people to vote for electors directly – was that the electors would likely not be possessed of sufficient knowledge to cast their votes for President in a considered and definitive fashion. They would vote for whichever name they recognized, the resulting tally would show a scattering of votes with no one holding a majority, and the race would end up being thrown to the Senate. Under the circumstances discussed above – i.e., a distinct lack of communications infrastructure or national popular media – this was a perfectly valid concern. But it also contains within it an assumption which is fundamentally antithetical to the way that the Electoral College is understood to function in the present day. What worried Pinkney, recall, is that the electors would not know enough about the candidates, “To decide on their comparative merits.” And today, of course, the very idea that the electors should be in a position to decide anything at all is tantamount to political heresy.

    The reason for this change in perception is hardly a mystery. As discussed in these very pages some four years ago, the emergence of political parties in the 1790s, the ratification of the Twelfth Amendment in 1804, and the subsequent crystallization of American politics along rigidly partisan lines over the course of the 1830s and 1840s radically shifted, among other things, the manner in which American presidential elections are conducted. Systems that had been designed to operate in a self-consciously non-partisan atmosphere were changed and adapted to meet the needs of an increasingly professionalized political class, the end result of which was that many of the assumptions which had prevailed within the debates that gave rise to the Electoral College more or less ceased to apply within a half-century of the ratification of the United States Constitution. Charles Pinkney was doubtless far from alone when he took if for granted in September of 1787 that the electors which he and his colleagues were preparing to empower would cast their ballots for president as they each of them saw fit. Indeed, the whole point of creating a system of electors rather than allowing the American people at large to vote for their chief executive directly was that a smaller group of people who were able to garner the confidence and support of their neighbors would likely be better equipped to make a sound decision than the average American voter. And really, Pinkney’s fear that the electors would choose poorly only makes sense in this specific context. If the electors weren’t supposed to be “free agents,” as it were, why should he have been at all concerned if they wouldn’t be able to judge the “comparative merits” of the various candidates for President?

    The answer, of course, is that the electors were supposed to be able to choose how they cast their ballots. Electors weren’t meant to be locked into partisan agendas; nor legislators, nor state executives, nor the national executive. Everyone was supposed to act in accordance with their own conscience and sense of judgment, and everyone was supposed to garner the support of their countrymen – not solicit, mind, but magnanimously accept – based on their own merits and the confidence they were able to inspire. Political parties were not supposed to have any part in this, factionalism being widely understood to lie at the root of corruption and conspiracy, and political power was supposed to reside in the hands of those best suited to wield it by their temperament, upbringing, and education. By modern standards, of course, this all seems rather naïve. And it certainly bears remembering that many of the men who held fast to these principles in the 1770s and 1780s later actively abandoned them in the 1790s and 1800s. But while it may now seem rather quaint to imagine that the Framers ever believed it possible for political society to function without people at some point banding together for the purpose of sharing resources and coordinating strategy, they most definitely did. It is not wrong, of course, that American political culture has changed in the interim, nor that American political institutions have been changed in turn. It is not wrong, in really any sense of the word, that electors are now bound to cast their votes in accordance with the wishes of the party to which they belong. But this is not, in any way, what the Framers themselves intended.

    Mason’s observation – that most presidential elections would end up being resolved in the Senate – gives evidence of much the same disparity between how the Framers thought the Electoral College would function and how it came to function in practice. In the history of the United States of America following the ratification of the Constitution, presidential elections have resulted in inconclusive results leading to contingent elections exactly twice. The first time, in 1800, occurred prior to the passage of the aforementioned Twelfth Amendment. And the second time, in 1824, occurred almost two hundred years ago as of this writing. Since then, despite the occasional close call, Congress has never been forced to hold a contingent election for President. Such contingent votes, as a result, have come to be understood in modern political, legal, and historical circles as exceedingly unusual exceptions to what is otherwise the rule of American presidential elections. Circa 2021, the accepted wisdom would have it that nineteen out of twenty presidential races are decided by the electors. As far as George Mason was concerned, however – as well as enough of his colleagues to keep the debate going for the better part of three days – nineteen out of twenty presidential races were bound to end up in Congress. The reason for this should by now be clear enough. As Charles Pinkney first asserted – and as many of his fellow delegates later agreed – it seemed unlikely, given the physical realities of life in the United States at the end of the 18^th century, that any one person might possess sufficient national popularity to garner a majority of the votes to be cast during a presidential election. And if hardly any presidential vote was decided in the first instance by the electors, then almost every presidential vote would end up being decided in Congress.

    This was not, it bears noting, an unsound conclusion. As mentioned previously, American political culture at the end of the 18^th century tended to be highly regionalized. Outside of those who had served in the Continental Army or been sent to Congress by their local legislature, most Americans didn’t travel widely, didn’t come into regular contact with people from outside of the state in which they lived, and didn’t have much exposure to the contemporary national political scene. What newspapers existed were highly localized in terms of their reach, and a distinct lack of transportation infrastructure – combined with relatively low levels of literacy – prevented potentially useful information on the issues of the day from travelling very far or very fast. Bearing all of this in mind, it made perfect sense that a number of the delegates to the Philadelphia Convention should have been concerned as to the ability of their fellow Americans to make an informed and decisive choice as to whom among their countrymen ought to serve as President. Having the voters delegate this decision to a group of electors would lessen the likelihood of an inconclusive vote, to be sure, but even this measure was not entirely without shortcomings. As often as the voters would appoint electors possessed of the requisite knowledge and aptitude to make a sound choice for President, they were also bound to select whoever happened to be the most popular personality in the region they called home. And while this latter cohort might rightly claim the confidence of their neighbors in casting their vote for President, popularity would in no way enable them to discern who among the candidates for the highest office in the land was truly deserving of their confidence and support.

    Not every delegate seated in Congress Hall in September of 1787 took this selfsame scenario to be a crisis in the making, mind you. As mentioned previously, Georgia’s Abraham Baldwin and Pennsylvania’s James Wilson both rather presciently remarked after the Committee of Eleven’s proposal was first introduced that any fears as to the inability of the electors to vote decisively in the first instance were very likely overblown. “The increasingly intercourse among the people of the States, would render important characters less & less unknown,” asserted Baldwin. And at the same time, Wilson observed, “Continental Characters will multiply as we more & more coalesce [.]” Accurate those these claims would soon enough prove to be, however, they did not do much in the immediate to sway the greater share of the assembled delegates. For the next two days, based on the notion introduced by Mr. Mason that the electors would more often than not fail to produce a conclusive result, the attendees to the Philadelphia Convention went back and forth on the procedures and implications of contingent elections. How should they be conducted? Where should they be conducted? How quickly after an inconclusive vote by the electors? And to what extent should special rules apply beyond those enforced during a regular session of Congress? In attempting to answer these questions, a definitive consensus was very gradually assembled. But while the necessity of such a discussion ought not to be in doubt, it is nevertheless worth reflecting in retrospect upon the relative emphasis the Framers ended up placing on certain aspects of executive elections in the United States of America.

    To wit, recall the extent to which the American people have ever been forced to resort to a continent election in order to choose a President. Once in 1800, and once in 1824. While a very small handful beyond these two have also involved inconclusive results and were resolved by way of highly unusual procedures, no other presidential election in the history of the United States has made use of Congress’s relevant power under the Constitution. In every other case – again, noting the small handful of exceptions – the vote of the electors was definitive in the first instance. Now, bearing these facts in mind, consider the extent to which the assembled delegates discussed the relevant constitutional procedures. Not everyone in attendance wholeheartedly embraced Mr. Wilson’s idea that the President should be selected by a group of popularly chosen electors when he first proposed it on June 2^nd, to be sure. Nor did it go without comment when the Committee of Eleven chose to adopt this selfsame concept and make it the core of their proposal. But while some amount of discussion did take place as to the likely ability of the electors to cast their votes in a decisive manner, enough delegates seemed to take it as a given that they wouldn’t to shift the remaining conversation almost completely onto the topic of contingent elections. The result, over the course of September 4^th, 5^th, and 6^th, was that the purpose and significance of the electors was discussed very little while the implications of a contingent vote for President in Congress was discussed to great length and great effect.

    This lopsided emphasis may well have been the result of the one significant change which the Committee of Eleven made to Mr. Wilson’s original proposal. As described by the gentleman from Pennsylvania on June 2^nd, the electors whose sole purpose it was to select the individual who would go on to serve as President were supposed to be chosen from within a set of pre-defined districts. The exact size and composition of these districts, it bear noting, were as yet left undefined. Would they be defined by Congress? By the state legislatures? By some independent body constituted specially for that purpose? All of these questions would doubtless have been answered had the basic concept of electors garnered more support at that moment in time. As it stood, most of the delegates were not yet ready to abandon the idea of having the chief executive of the United States appointed by a joint vote of Congress. And while Elbridge Gerry was one of the few in this opening phase of the discussion who felt congressional appointment to be ill-advised, he also expressed doubts as to the wisdom of Wilson’s proposal.

    Specifically, Gerry argued that, “The principle of Mr. Wilson’s motion […] would alarm and give a handle to the State partisans, as tending to supersede altogether the State authorities.” Based on the result which they ultimately produced, the members of the Committee of Eleven appeared to harbor similar anxieties. Mandating that the states had to permit the people to choose their electors by way of district elections may indeed have been interpreted by the various state governments as a concerted attempt to keep them from having a voice in the selection of the nation’s chief executive. Better, under the circumstances, to leave the choice of electors completely up to the states. The number of electors chosen by each state would be set by the Constitution, being one for each seat said state was entitled to in the House and one more for each seat which it held in the Senate. But the state legislatures, the Committee decided, would decide how these offices were dispersed.

    This alteration, to be sure, did not please all those who were present. As late as September 5^th, for example, John Rutledge of South Carolina was of the opinion that the American people would have been better served if he and his fellow delegates returned to a discussion of the merits of congressional appointment. The fact that no one took him on this offer, however, and that the conversation of the next day and half took place entirely within the context of the Committee of Eleven’s proposal, would seem to demonstrate fairly conclusively that the basic concept of executive electors was at this stage no longer a matter of substantial disagreement. Indeed, several of the more vocal contributors to the debate which would follow seemed to take the existence of the electors almost completely for granted, to the point of almost entirely dismissing their significance within the process of executive elections. Mason had arguably set this train of thought in motion with his remarks on September 4^th. “Nineteen times in twenty [,]” he said, “The President would be chosen by the Senate [.]” This could hardly be said to constitute an endorsement of the important role set to be played by the electors. Nor could Charles Pinkney’s insistence the following day that, “The electors will not have sufficient knowledge of the fittest men, & will be swayed by an attachment to the eminent men of their respective States. Hence […] the dispersion of the votes would leave the appointment with the Senate.” Rather than attempt to remedy the potential faults which they had identified as likely to lessen the effectiveness of the electors, however, these men and their colleagues instead turned their focus almost entirely upon the procedures to be put in place in the event of an inconclusive executive election.

    The Senate thus became the principal topic of discussion during the conversations which followed over the course of September 5^th and September 6^th. The electors, still technically the centerpiece of the process under discussion, were accordingly relegated to something of an afterthought. Yes, they would still cast their votes. And yes, their votes could still potentially elect a President and a Vice-President in the fist instance. But as far as the majority of the assembled delegates seemed to be concerned, they were unlikely to do more than serve as a kind of nominating convention. Certain of them, in point of fact, went so far as to say just that. Rufus King of Massachusetts, for example, argued on September 5^th that, “The influence of the Small States in the Senate was somewhat balanced by the influence of the large States in brining forth the candidates.” What he meant by the phrase “bringing forth the candidates,” of course, was process by which the various electors would cast their votes. In his mind, it seemed, the purpose of the electors was no longer to choose the President and Vice-President themselves, but rather to cull the list of potential candidates to a manageable size for the Senate to then consider. Connecticut’s Roger Sherman, in attempting to argue on September 6^th for the House rather than the Senate as the proper place for a contingent election, likewise indicated that the Representatives therein should vote by state rather than individually because, “The large States would have so great an advantage in nominating the candidates.” Within a day of the introduction of the Committee of Eleven’s proposal, it seemed, the participants in the relevant debate were already of the opinion that the electors which on paper formed the core of said plan would in practice only function as a screening mechanism for the Senate.

    This underlying attitude is doubtless what motivated the assembled delegates to discuss the implications of granting the Senate the right to hold contingent elections as exhaustively as they did. If, as Mason put it so succinctly, nineteen out of twenty presidential elections were going to end up in the Senate, then it stood to reason that the potential consequences thereof ought to be examined in detail. Would allowing the Senate to elect the President more often than not negatively affect the balance of authority between these two branches of government? Would the President end up becoming subservient to the Senate? Was adding the right to hold contingent elections to the Senate’s already considerable powers a step too far in the direction of aristocracy? The answers to all of these questions were considered and debated at length. Some delegates, like the aforementioned Mr. King, seemed to think that granting the Senate a contingent vote for President represented a much-needed counterweight on behalf of the small states to the influence which the large states would end up wielding by way of their electors. Others, like James Madison, felt that giving the Senate a contingent vote for President – to the benefit of the small states – would encourage the large states to direct their electors to vote decisively in the first instance. But more delegates than gave voice to either of these positions came to the shared conclusion that the Senate was quite simply the wrong place to hold a contingent vote for President.

    As previously discussed, Roger Sherman’s proposal to hold contingent votes in the House rather than the Senate is what ultimately brought the executive election debate to its long-await close on September 6^th, 1787. In the end, though not everyone was in perfect agreement, a consensus had been formed around letting the lower house of Congress handle inconclusive presidential elections by way of a few key tweaks to its normal voting procedures. But while this alteration to the Committee of Eleven’s plan has since proved itself to be a relatively durable compromise in practice, it is, upon reflection, a rather unusual mechanism for resolving inconclusive votes. For that matter, it is rather strange to realize in retrospect the degree to which the Framers felt that such a mechanism was needed. As aforementioned, all but a handful of the presidential elections held in the United States since 1789 were decided in the first instance by the Electoral College. Nineteen times out of twenty, it might accordingly be said, the Electoral College has been the decisive factor. But as the notes which James Madison recorded during his participation in the Philadelphia Convention make clear, the Framers were convinced that the opposite would be the case. Most of them felt that the electors would serve as little more than a nominating convention, and that the final decision would be made via a contingent vote in one of the two houses of Congress. The product of the resulting debate was a mechanism which sought to balance several competing priorities.

    The large states, the Framers believed, were likely to exercise a substantial influence over the result of the vote of the electors because said electors were set to be allocated broadly in proportion to population. In order to balance this out, the Committee of Eleven accordingly determined that contingent votes – which, again, most delegates were convinced would take place more often than they didn’t – should occur within the confines of the Senate. With each state therein possessing the same number of votes, it was felt that the small states would thus enjoy an advantage in proportion to that which the large states enjoyed in terms of their electors. But this, as it turned, out, was unacceptable to the majority of the assembled delegates. The Senate may have been ideally structured to balance the influence of the large states and their electors, but it had also already been granted a whole host of powers and responsibilities during prior sessions of the Philadelphia Convention. In addition to possessing a vote on regular legislation, the Senate was also set to ratify treaties negotiated by the executive branch, confirm nominees to the federal courts and to various executive offices, and conduct impeachment trials. By adding the right – conditional though it may have been – to appoint the President to this already quite substantial share of authority, no small number of delegates believed that the Senate would become far too potent for any other branch of the national government to restrain. “According to the plan as it now stands,” James Wilson thus observed, “The President will not be the man of the people as he ought to be, but the Minion of the Senate […] And with all those powers, and the President in their interest, [the Senate] will depress the other branch of the Legislature, and aggrandize themselves in proportion.”

    The delegates, as aforementioned, had hemmed and hawed for several days over exactly this issue. And it was ultimately Roger Sherman’s proposal to hold contingent elections in the House of Representatives that broke through what had developed into a seemingly intractable impasse. But consider, for a moment, the nature of the resulting compromise. Sensible though it certainly was in the moment, the balance of interests which it purported to strike in 1787 has since been rendered almost entirely unnecessary. The compromise, recall, required that the House vote during a contingent election by state delegation rather than individual member. In consequence, rather than allow the states with the largest number of inhabitants – and thus the largest number of Representatives – to essentially “run the table,” each state would possess exactly the same weight. And while the Senate, as previously noted, would not have required special rules to perform this same function, the Senate was also deemed by a number of delegates to be too powerful already to take on yet another significant responsibility. For the purposes of a contingent election for President, therefore, the Constitution mandates that the House of Representatives transform itself into something like an approximation of the Senate before rendering its final verdict. But why should it have to do this? Why couldn’t the House just vote as it does normally?

    Naturally, the assembled delegates could have allowed the House of Representatives to vote during contingent elections according to the same rules by which it was to vote on regular legislation. That is, with a quorum comprising an exact majority of those seated and every member casting a vote on their own behalf. As this would have essentially preserved the relative influence possessed by the various states in terms of the number of electors to which they were each entitled, a contingent vote in the House would accordingly have functioned as a kind of repeat performance of the first-round vote. Representatives would have stood in the same relation to the American people as their chosen electors, and populous states like New York, Virginia, and Pennsylvania would have enjoyed just as much influence over their smaller neighbors. But while the House might accordingly have seemed like the ideal place to hold a “do-over” of an inconclusive presidential election, this is not what the Committee of Eleven ultimately decided upon. And nor is it what the assembled delegates decided upon after discussing the matter at length. They were fine – for the most part – with population largely determining the choice of President in the first instance, but not necessarily in the second. Why? Why did they feel like contingent elections should have been governed by different rules? The answer, it turns out, comes back to the idea of balance.

    Rufus King said it well enough when he observed on September 5^th that, “The influence of the Small States in the Senate was somewhat balanced by the influence of the large states in bringing forth the candidates [.]” The assembled delegates were fine – again, for the most part – with allowing population to determine influence within the context of what we now know as the Electoral College. But they were not fine with that same logic applying in the event of an inconclusive first round vote. Should the electors have produced either a tie or a plurality, the Framers were of the broad opinion that the method by which such an impasse was resolved ought to have taken place on as level a playing field as possible. But why, one might fairly ask, should this kind of equilibrium only have been preserved in the rare instance when the electors failed to vote in the majority? If it was so important, why weren’t all executive elections conducted in two rounds? The answer, of course, is that by the end of the discussion which gave rise to the Electoral College on September 6^th, 1787, most of the delegates believed that they would be. Notwithstanding the comments made by Messrs. Baldwin and Wilson to the contrary, most of the delegates in attendance during the debates in question had little faith, if any, that the electors assigned to the various states would vote in the majority for any one candidate. These men accordingly came to believe that a durable mechanism for a second-round vote was absolutely essential. And since the assembled delegates had already decided to construct other aspects of the proposed national government on the principle of balancing the relative influence of the large states and the small states, it made perfect sense for them to pursue the same goal in the context of executive elections.      

    And all of this means what, exactly? Well, for one thing it means that the manner in which the Framers of the Constitution believed that the Electoral College would function turned out to be substantially at odds with how it has since come to function in practice. The Framers intended for the electors to exercise discretion when casting their votes for President and Vie-President. Virtually no one expects them to do this anymore. The Framers believed that most presidential elections would end up in being decided in Congress, and they devised the resulting mechanisms of government to promote balance in the long-term. It is now thought to represent something of a national crisis if the Electoral College fails to produce a decisive result by midnight on Election Day. And perhaps most significant of all, it is a demonstrable fact that at least some of the Framers preferred that the President be elected by way of a simple popular vote. As of the early 2020s, the idea of eliminating the Electoral College and embracing a simple popular vote is often disqualified by commentators and pundits as running counter to the Framer’s original, necessarily perfect vision. Clearly, in more ways than one, the Electoral College as it now exists in the popular imagination of the American people is a far cry from what the Framers actually envisioned in 1787. It does not function the way they intended it to, parts of it upon which they lavished significant attention have since gone mostly unused, and the factors which caused them to devise it in the first place are generally no longer applicable.

    James Wilson first proposed the core concept of executive electors, remember, because his fellow delegates were substantially convinced that holding a national popular vote simply wasn’t feasible. Americans voters could be trusted in those days to choose a state legislator, or a state senator, or a member of Congress, or perhaps even a governor. But a President? Someone possessed of the requisite experience and expertise to preside over the administration of the whole of the United States? No. Lacking any means to easily familiarize themselves with potential candidates for office, and broadly lacking in education and/or basic literacy, the American people were unsuited to choose a President directly. But while this was very probably the case in 1787, clearly, demonstrably, this is no longer the case today. The people of France are regularly asked to directly elect their head of state. And the people of Ukraine, and Colombia, and Taiwan, and so forth. Are the people of the United States less qualified to determine who ought to be their president than the inhabitants of these other countries? Are they less educated, less informed, or less intelligent, as a rule? “No,” say the modern proponents of the Electoral College, “It isn’t that. It’s just that popular elections are not what the Framers intended.” This is true enough, if overly simplistic. By the end of discussion on September 6^th, 1787 – at which point the Electoral College was more or less complete – popular election wasn’t really on anyone’s mind any longer. But there were other things on people’s minds in that moment which have nevertheless since been forgotten or changed.

    The Framers intended for the electors to exercise their discretion, and for contingent elections in Congress to be a regular occurrence. Is it wrong that this is not so today? Is it wrong that the emergence of a stable party system and the ratification of the Twelfth Amendment have since obviated the need for either autonomous electors or regular contingent elections? Or are these changes made acceptable by the fact that they were put into place almost as long ago as the Constitution itself? Are they excused because they took place at the behest of many of the same men who originally framed that selfsame document? Perhaps so. To be sure, it isn’t wrong that the Electoral College no longer works they way it was designed to. The American people are free to make amendments to any aspect of their government as they find that their needs and their desires have changed. What is wrong is behaving as though things that aren’t true really are. Justification for the existence of the modern Electoral College cannot be found in the words and deeds of the Framers. As this examination of Madison’s notes on the subject should have made substantially clear, the Framers wouldn’t recognize the modern Electoral College to see it. Not only that, but many members of this illustrious cohort were substantially unsatisfied with the end product of their collective efforts. To speak of the Electoral College in terms of the Framers intentions, therefore, is to mischaracterize something about which its creators had very different ideas than the average 21^st century observer, and about which many of them were also deeply ambivalent. Far from representing the ideal form of executive election which the demi-gods of old America received miraculously from on high, the Electoral College was simply the most cohesive plan upon which the Framers could mostly agree. Nobody thought that it was perfect at the time, it has since been changed substantially in the interim, and nobody ought to imagine that preserving it amounts to some kind of moral imperative.

    Anyway, that’s where I’m at. You should absolutely, by all means, decide for yourself. 

Notes of Debates in the Federal Convention of 1787, Part VII: The Long and Winding Road

    It never seems to fail that when the men who drafted the United States Constitution are referred to in casual speech or during public debate, they are spoken of as a single, seamless, monolithic group. “The Framers did this,” it is said, and, “The Framers did that,” as if all fifty-two men who attended the Philadelphia Convention thought with one mind and spoke with one tongue. As the preceding investigation of James Madison’s Notes of Debates in the Federal Convention of 1787 has by now made quite clear, however, this was emphatically not the case. On the subject of executive elections alone, the assembled delegates often disagreed quite dramatically as to the exact procedures which they believed ought to be put in place. Some were more optimistic than others. Some were more pragmatic than others. And while a consensus was ultimately cobbled together after many months of discussion, the end result could hardly be said to represent the unanimous will of the Framers of the Constitution. It was, on the contrary, simply the best they could do. They should not be chastised, of course, for having settled for less than perfection. There was no way for them to know, practically speaking, what perfection was supposed to look like, and thus no way for them to determine whose beliefs were well-founded and whose fears were overblown. But they did try.  And this, in the end, is how the Framers really ought to be remembered. Not as a group of demigods who gathered together in a room in Philadelphia and then wrote out the Constitution extemporaneously as if collectively moved by some divine will. Rather, they were men of good conscience who didn’t always agree with one another but did their best to reconcile their hopes and their competing ideals with the circumstances of the moment.

    Evidence in support of the primacy of this latter view – as well as of the fallibility of the Framers more generally – can be found throughout the excerpts of Madison’s Notes that have herein been examined. Consider, by way of example, the sheer breadth of proposals that were floated during the first phase of the executive election debate before the drafting of the Committee of Eleven’s proposal. Between June 1^st, when the conversation commenced, and June 18^th, when the first phase concluded, four or five different schemes were put forward by the likes of James Wilson, Elbridge Gerry, and Alexander Hamilton, only one of which became the basis for the debate that would follow in September. Hamilton notably avowed that elective monarchy was the model which he and his colleagues ought to adopt, and accordingly recommended that the American chief executive be chosen for a life term. Elbridge Gerry, claiming to desire parallel structures within each of the branches of the national government, suggested that the chief executive ought to be appointed by way of a majority vote of the various state executives. And James Wilson, who set off the executive election debate to begin with, ultimately settled on a system of electors chosen by way of popular elections in the various states. His original preference, he was hesitant to admit, had been for a simple popular vote, much as was the case in contemporary New York and Massachusetts. But while certain of his colleagues were not opposed to the idea in isolation, they also cautioned Wilson – and Wilson ultimately agreed – that the logistics of a popular vote rendered such a mechanism more or less impracticable under the circumstances of the present. In the end, doubtless owing in large part to the disparity of opinion thus presented, the majority of delegates ended up expressing their preliminary support for what was in many ways the default option. As favored by the likes of Roger Sherman and John Rutledge, the chief executive was for the moment to be chosen by a vote of the national legislature.

    Now, consider the disparate assumptions which the various delegates must have held during this opening phase of the debate in question for them to have offered such proposals as they ultimately did. In spite of the fact that at that time most of the state executive were appointed by the relevant state assemblies – thus placing an extra layer of delegation between the American people and their designated chief executive – Elbridge Gerry nevertheless seemed to think it more important that certain interests in the state government be represented by corresponding interests in the national government than that the American head of state possess much in the way of public confidence. The people were directly represented in the lower house of Congress, he observed, and the states represented in the upper house of the same. So, why, then, shouldn’t the governors of the various states be represented in the form of the “governor” of the nation as a whole? Granting that there was a certain logic to this thought-process, it was made obvious enough that Gerry was approaching the concept of executive elections from a very different perspective than his colleagues by the adamant manner in which his proposal was rejected when came to a vote. Hamilton’s arguments in favor of elected monarchy would seem to represent the same kind of disparity of approach. Whereas the majority of his fellow delegates spoke often and forcefully over the course of the Philadelphia Convention of their profound distrust of unchecked executive power – and whereas most of them came from states that either confined executive authority within very narrow limits or vested it in a collective, council-style body – Hamilton actually thought it more sensible than not to allow a singular chief magistrate to serve in office for as long as they happened to live. Again, it wasn’t as though the arguments which he presented as justification were entirely meritless. And it is true that Hamilton did ultimately come around to support the Committee of Eleven’s proposal. But given the substance of the plan which he claimed to prefer, one might fairly be given to wonder just how much, if any, of the end results of these debates really aligned with Hamilton’s personal desires and intentions.

    And then there was Wilson’s initial, hesitant endorsement of a simple popular vote. James Wilson remains, of course, the single individual to whom the existence of the American Electoral College is most directly owed. It was his idea to create a system of executive electors, after all. And though it was the Committee of Eleven which ultimately determined that the method of selection would lie with the legislatures of the various states – Wilson had proposed a scheme of district elections – one is nevertheless fairly given to doubt whether the debates which followed would have taken on the shape that they did had the delegate from Pennsylvania not set things in motion with his initial proposal. For all the credit that he is rightly owed, however, Wilson’s first preference was for a far simpler procedure. If the various branches of the national government were to be as independent of each other as possible, then Wilson believed that each of them ought to have been derived from the American people directly. That meant a popularly elected upper house of Congress, a popularly elected lower house, and a popularly elected chief executive. He was talked out of pursuing this goal in terms of the office of chief executive, as noted, but on what terms? George Mason, who asked Wilson to reformulate his plan into something more coherent which the assembled delegates could then discuss, stated that in fact he favored the core conceit of Wilson’s proposal but thought it more or less impracticable. But while this criticism was not expanded upon further – Wilson simply returned the next day, as requested, with the first iteration of the Electoral College as we known it – the fact that it was offered and accepted says a great deal about the assumptions of those involved in the debates in question.

    It would seem a fair to assume, for example – based on certain comments offered in response to Wilson’s proposed system of electors – that the nature of Mason’s earlier concerns was chiefly logistical in nature. Speaking on June 2^nd, Elbridge Gerry of Massachusetts expressed his doubts as to the ability of the American people to choose even a group of electors for themselves. The inhabitants of the United States, he reckoned, were as yet, “Too little informed of personal characters in large districts, and liable to deceptions.” Certain assumptions were at play in this statement as well. For instance, it isn’t clear why Gerry thought that the American people could be trusted to choose state legislators and/or national legislators but would not be up to the task of selecting executive electors. Granted, Wilson’s proposed electoral districts might have ended up being substantially larger than either House districts or state assembly districts, but Gerry had no basis as yet for assuming that this would be the case. That said, it was hardly unreasonable of him to question the ability of the average American voter – as described in the relevant sections of the proposed constitution – to discern from among a potentially wide field of candidates which of them ought to serve as their chosen representative. And when applied to the prospect of a nationwide popular executive election, the soundness of Gerry’s concerns become clearer still. In the absence of any national popular media, how were the voters supposed to decide which candidate for executive office most directly spoke to their interests and priorities? How were they supposed to avoid being deceived when outside information came to them only through a small handful of vary narrow channels? As Mason earlier remarked, the idea of a popularly elected chief executive was certainly a desirable one. Indeed, one might even go so far as to say that it would have been ideal. But given the circumstances of life in the contemporary American republic, it was almost certainly also wholly unfeasible.

    Bearing this fact in mind, however, James Wilson did still suggest that the United States should possess a popularly elected executive. And Wilson was not an ignorant man, or foolish, or naïve, or short-sighted. On the contrary, he tends to be regarded by historians and scholars of the American Founding as one of the most knowledgeable and intellectually adept of those who assembled in Philadelphia in the spring and summer of 1787. It might therefore be taken as a given that he was well aware of the fact that the American people were, as of the late 18^th century, at something of a loss for reliable and in-depth sources of political information. In spite of the very legitimate concerns which stemmed from this condition, however – notably expressed, as aforementioned, by the likes of Elbridge Gerry – he still endeavored to propose to his colleagues that the chief executive of the United States ought to be elected by the people at large. He was talked out of it, as noted above, in part by one George Mason, and ultimately redirected his attention towards describing a system of executive electors. But the fact that he suggested popular elections at all would nonetheless seem to be exceptionally significant.

    Perhaps Wilson had not considered the impact which physical distance and a lack robust transportation infrastructure would have on the ability of the average contemporary American voter to make a sound choice for national chief executive. This is entirely possible. But it is also possible – and perhaps somewhat more likely – that he simply believed the benefits of allowing the American people to select their chief executive directly outweighed the risk of their either being deceived or of pledging their vote to someone who lacked the most desirable qualifications. He did say, after all, in his opening statement on June 1^st on the nature of an executive vote, that, “The object of choice in such cases must be persons whose merits have general notoriety.” It wasn’t that candidates for President should be persons whose merits have general notoriety, or that it would be nice if the people who ultimately received the votes of their countrymen were those whose merits were broadly known.  It was that they must be such persons. They must have “general notoriety.” Wilson’s use of this phrase, and his emphasis on making each of the branches of the national government as independent of each other as possible, would accordingly seem to indicate that he thought popular support was at least as important – if not perhaps more important – than material qualifications in terms of the election of a purported American chief executive. Now, again, he was talked out of it. And shortly thereafter he went on to introduce the lasting innovation of state-by-state electors to the conversation at hand. But may it be remembered henceforth, whenever it is said that the Framers – as a group – intended such-and-such when they created the Electoral College, that, in point of fact, the one man who was responsible for suggesting the use of electors in the first place had initially stated his preference for a simple popular vote.

Notes of Debates in the Federal Convention of 1787, Part VI: Calculated to Satisfy & Promote Unanimity, contd.

            It is something of a surprise, in light of the trajectory which his career would shortly take, that the man who spoke in immediate opposition to Mr. Morris’s defense of the Committee of Eleven’s proposal was none other than Alexander Hamilton. While it was true that his public career had to this point been relatively brief – between a handful of years in Congress and a handful more in the New York state assembly – he had never really acted as though he was all that squeamish about the prospect of centralized political power. Indeed, from the time of his first foray in national politics in 1782, he seemed to take it as a kind of maxim that some people simply weren’t possessed of the wisdom necessary to exercise authority over themselves or others. On the contrary, some people simply needed to be led, and their leaders needed to possess all the practical power that was feasible. Bearing this attitude in mind, and recalling that Hamilton’s previous contribution to the executive election debate had been to suggest the creation of a President-for-life, his comments of September 6^th appear more than a little out of character. Having previously shown himself to be quite content with the notion of a chief executive possessed of significant power who was also incapable of being voted out of office, he now expressed both a sense of satisfaction at the prospect of term-limited elected President and an adamant distrust of the potential aggrandizement of the Senate in the process. If the President were more often appointed by the upper house of Congress than not, he asserted, “He would be tempted to make use of corrupt influence to be continued in office. It seemed particularly desirable therefore that some other mode of election should be devised.”

            The reason that this statement arguably represented something of a turn for Hamilton was that it seemed to contradict his previous position as to the safest repository of political power. Previously, on June 18^th, he had boldly declared to his fellow delegates that, “Elective monarchies wd. be the best if they could be guarded agst. the tumults exited by the ambition and intrigues of competitors.” He then went on to argue that a President chosen for a life term represented the apotheosis of this exact idea because the magistrate in question, thus freed from seeking re-election, would have no reason to pursue anything other than the peace and prosperity of their fellow citizens. What this argument necessarily assumed, of course, was that public servants who faced election less often were inherently more trustworthy than those who were regularly required to submit themselves for public approval. By September 6^th, however, Hamilton’s tune had significantly changed. Having evidently accepted the Committee of Eleven’s basic premise of a chief magistrate elected every four years by a college of popularly-chosen electors, he now seemed to think that the institution specifically designed to promote autonomy of action by way of longevity in office – i.e., the Senate – could not be trusted to appoint a President in the event of a failure by the electors to vote in the majority.

Granted, the six-year term to be enjoyed by Senators fell a fair bit short of the life term Hamilton had hoped to extend to the office of President, but at this stage the Senate was still set to be the elected branch of the national government most insulated from the tensions and temptations of having its tenure constantly renewed. And it was a communal body at that; not an individual capable of making decisions quickly and without warning, but a deliberative body whose actions would almost always be the product of drawn-out discussion. And yet somehow, for some reason, Hamilton distrusted the influence of the Senate. He was content to allow a lone individual to spend the rest of their life at the head of an increasingly centralized national administration, and similarly took no issue with the prospect of this selfsame chief magistrate being chosen by electors appointed by the people at large. But to allow the members of a body whose purpose was to be static, sober, and generally removed from the tumult engendered by frequent popular elections even the chance of selecting a President was evidently, for Alexander Hamilton, going too far.

            Odd though Hamilton’s evident change of opinion arguably was, the solution which he offered to the issue at hand was really anything but. Like many of his colleagues in Philadelphia – in addition to distrusting the Senate – he evidently thought that a majority vote by the electors in the first instance would be an uncommon occurrence. “The appointment [,]” he accordingly concluded, “Would consequently in the present mode devolve upon the Senate.” His desired remedy? Like Mason and Williamson had suggested before him, Hamilton was likewise willing to allow the chief magistrate of the United States of American to be elected by a plurality of the votes of the electors rather than require a majority. “What was the objection to this?” he asked of his colleagues. “Merely that too small a number might appoint. But as the plan stands, the Senate may take the candidate having the smallest number of votes, and make him President.” But while the proposal itself was not a novel one, and while there was certainly a fair point to be made about the implications of the Senate elevating the last place finisher among the electors to the office of President, Hamilton’s previous statements rather muddied the argument. On September 6^th, he essentially claimed that the prospect of the Senate making the elector’s fifth-favorite candidate for office the eventual victor represented a subversion of the popular will. But previously, on Jun 18^th, he took no issue with the idea of someone serving as President for an unknowable number of years without every having to submit themselves to regular public approval. The contradiction represented by Hamilton thus appearing to favor what he feared and fear what he favored accordingly makes it difficult to determine just where he was coming from on September 6^th and what it was he intended. If he preferred infrequent elections, why was he so suspicious of the Senate? If he disliked the idea of so much power being placed in the hands of so few, why had he previously argued for the creation of a President who could potentially serve for decades without re-election? Likely no one could answer these questions but Hamilton, and he was never one inclined to give very much away.                       

Not that whatever Hamilton had to say seemed to matter very much at this point. He had contributed, in his own way, to a debate which had been going on for some time, and his contribution appeared to do very little to affect the final outcome. In the flurry of votes that followed Hamilton’s comments, a number of lingering issues were either settled or largely upheld in very short order. On the question of the President being chosen by popularly appointed electors, for example, nine state delegations out of eleven voted in the affirmative. On the question of the victor in the race for President requiring the support of a majority of the electors, a slightly reduced majority of eight states delegations again voted in the affirmative. And on the question of referring an otherwise inconclusive executive election to the Senate for resolution, a yet smaller majority of seven state delegations voted to uphold. In spite of everything that had been said since the Committee of Eleven’s proposal was introduced on September 4^th – the objections, alternative schemes, modifications, and attempts at compromise – it seemed that the majority of those present were content to ratify the exact set of procedures which they had originally been handed. None of the cited votes had been unanimous, of course. And doubtless many members of the state delegations which had voted in the affirmative had objected and been overruled by the majority of their colleagues. But there it was, for better or worse. After three days of debate, the Committee of Eleven’s proposal had been upheld in full.

Or, at least for a moment it was upheld. Though the core conceit which the Committee of Eleven had devised – i.e., that the President be chosen by popularly-appointed electors – had never been all that strongly opposed, there remained some lingering discontent surrounding the procedure in place for resolving an inconclusive vote. The assembled delegates, it was true, had just moments before voted to affirm the role of the Senate in this capacity, but this did not necessarily mean that the matter in question was entirely settled. James Madison, delegate from Virginia and author of the record being herein examined, accordingly proposed that a contingent election in the Senate only take place in the event of a quorum of two-thirds of all those seated. As the delegates had already discussed the potential for unfortunate interactions between the Senate’s rules of procedure and its role in resolving inconclusive executive elections – by way of the previously-cited comments of Mr. Randolph on September 4^th – this would not have been an unexpected suggestion. Nor, it seemed, was it an unwelcome one. Not only did South Carolina’s Mr. Pinkney second the motion, but a majority of six state delegations voted to affirm it shortly thereafter. And while this constituted the closest vote of those cited here – with four states objecting and one electing to abstain – it still represented a workable consensus. Thus, if by a narrow margin, the assembled delegates had made their one, single, relatively minor alteration to the Committee of Eleven’s proposal. Contingent votes would still be held in the Senate, but a vote therein could only take place when at least two-thirds of those seated were present.

Except, this was also not to be the case for very long. After three days of essentially talking around each other without very much to show for it, the delegates then assembled in Congress Hall in Philadelphia were suddenly in a very agreeable mood. No sooner did he record the affirmative vote on his own motion then Madison noted another suggestion put forward by Hugh Williamson for a further alteration of the Committee of Eleven’s proposal. Harkening back to a modification offered by Connecticut’s Roger Sherman at the beginning of business on that very same day, Williamson, “Suggested as better than an eventual choice by the Senate, that this choice should be made by the Legislature, voting by states and not per capita.” Showing what was arguably an admirable degree of magnanimity at having his idea ignored one moment and then seized upon the next, Sherman himself then spoke in affirmation of this proposal, moving to strike out the verbiage referring to the Senate from the Committee of Eleven’s proposal and inserting in its place the clause, “The House of Representatives shall immediately choose by ballot one of them for President, the members from each State having one vote.” Virginia’s George Mason, who had objected strongly on September 5^th to any addition to the powers of the Senate, unsurprisingly seconded this proposal, and the matter was put to yet another vote. Of the eleven state delegations present and participating, ten ultimately chose to affirm Mr. Sherman’s amendment, with only Delaware voting in the negative.

Definitive though this might sound, however, there was still one final issue that evidently needed to be addressed. Though more state delegations had just voted for Mr. Sherman’s proposed amendment than for any other alteration to the Committee of Eleven’s plan to that point, James Madison was apparently not so flushed with relief that he didn’t take note of a potentially serious problem therewith. Indeed, it was much the same problem his fellow Virginian Edmund Randolph had observed having to do with the Senate’s rules of procedure. “As a majority of members wd. make a quorum in the H. of Reps.” Madison observed, “It would follow from the amendment of Mr. Sherman giving the election to a majority of the States, that the President might be election by two states only, Virga. & Pena. which have 18 members, if these States alone should be present.” This was perfectly true, of course. Madison’s numbers were a little off – at its first sitting in 1789, the House of Representatives was comprised of fifty-nine members, of which a quorum would have constituted thirty, not eighteen – but he was right to point out that the number of Representatives required for the House to conduct its business could have easily been filled by as few as two or three state delegations. In which case, in the event of an inclusive vote by the electors, the person eventually chosen as President might conceivably be elected by as few as two state votes. The individual Representatives would have their say within their respective delegations, to be sure, but the final count would only record the majority vote thereof. If five of Pennsylvania’s eight Representatives voted for candidate A, along with six of Virginia’s ten, then it wouldn’t matter if all eight of Massachusetts’ Representatives voted for candidate B. And if these three states were the only delegations present, candidate A would ascend to the office of President in spite of the fact that only eleven of twenty-six Representatives voted in their favor. This, as Madison rightly pointed out, was simply not acceptable.

When Sherman’s amendment again came to a vote, however, it was once more affirmed by a majority of the states. Granted, Madison seemed to have swayed New Jersey and Maryland to declare in the negative in addition to Delaware this second time around, but New Hampshire, Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, and Georgia all nevertheless declared in the affirmative. And while that very well could have been the end of the conversation, with the assembled delegates left simply to hope that Madison’s worst-case scenario never came to pass, Mr. Angus King of Massachusetts fortunately offered a last-minute fix. To the amendment of Mr. Sherman, he proposed, it should be added that, “A quorum for this purpose shall consist of a member or members from two thirds of the States […] and also a majority of the whole number of the House of Representatives.” The result, when this final change was put to the floor, was mixed, if reasonably definitive under the circumstances. The first clause, up to the word “States,” Madison simply recorded as having been agreed to. One wonders why he declined to note the exact tally of the vote, but so it goes. And on the second clause, beginning with the words “And also of a majority,” the states voted against it by a margin of six to five. Thus, on this rather less than glamourous note, and after three days of very focused debate and three months since the topic was first broached, the Philadelphia Convention had settled upon a procedure for electing a chief executive. Not everyone involved was entirely happy, to be sure, and almost no one got exactly what they wanted. But at least the thing was done. At least now, finally, they could all go home.

Notes of Debates in the Federal Convention of 1787, Part V: Calculated to Satisfy & Promote Unanimity

    By the time that the debate which gave rise to the United States Electoral College resumed its final session on September 6^th, 1787, the Philadelphia Convention had been going on for almost four months. Less than two weeks remained before the proceedings would be adjourned and the various delegates would return to their homes. And while a great deal of admirable work had thus far been done to craft a new governing charter for the United States of America which would at once counter the perceived deficiencies of the Articles of Confederation while also continuing to respect the sovereignty of the individual states, the dedication of those present to the highest moral and philosophical ideals was definitely starting to waver. Principle still guided much of what remained to be said and done, rest assured, but it was also becoming increasingly clear that four months was a long time to spend in the same place talking about the same set of topics with the same group of people. The result, if not necessarily frayed tempers or slapdash work, was at the very least a mounting tendency towards hasty compromise and relatively limited discussion. Arguments that had been drawn out over the course of several days came to swift and uneventful ends, men who had shown the strongest attachment to their own particular priorities evinced an unexpected partiality to conciliation, and votes on specific clauses came suddenly fast and numerous.

    As it happened, Elbridge Gerry of Massachusetts was the man to set this process in motion. Soon after the proceedings of September 6^th began, he attempted to submit to his fellow delegates yet another of his characteristically arcane proposals, in this case having to do with the concept of presidential re-election. “As the President was to be elected by the Senate out of the five highest candidates,” Gerry offered, then, “If he should not at the end of his term be re-elected by a majority of the Electors, and no other candidate should have a majority, the eventual election should be made by the Legislature.” It was a strange proposal mainly because it applied different rules to the same officeholder depending on where they were in the course of their tenure. A group of candidates running for President for the first time who failed (any one of them) to receive the votes of the majority of the electors would have their fate decided by a vote in the Senate. But if an incumbent President took part in the race, the same outcome in the first instance would result in a contingent election in the House of Representatives instead. Depending on how the various state delegations ultimately tended to vote in the upper and lower houses of Congress – and the manner in which the electors were chosen to begin with – this kind of split procedure might have ended up skewing the results in ways both unintended and undesirable.

    If a contingent vote in the Senate granted an advantage to the small states, for example, then this cohort would only benefit when no incumbent was running for President. And if a vote in the House granted an advantage to the large states, then elections in which an incumbent participated might become what Madison had described during the previous day’s discussion, with the large states dominating the whole of the process and depending on the contingent vote to help them narrow down their choices. And what if an incumbent who knew they would benefit from a vote in the House just kept running indefinitely? Presidents would not be limited to two terms in office until the ratification of the Twenty-second Amendment in 1951. Granted, it was always possible that they might not succeed in winning enough votes from the electors to make it to the contingent round in the House. But if Madison was right and the large states would come to dominate both the electoral vote and the House vote, why shouldn’t their preferred candidate have simply kept on running and winning? If the only barrier to such an outcome was a majority of the votes of the electors or a majority of the votes in the Senate, Gerry’s compromise could hardly be said to be anything at all like foolproof.

    That being said, foolproof probably wasn’t what Gerry was aiming for. If his proposal garnered sufficient attention, his colleagues would examine it, test it, deconstruct it, and reconstruct it until such time as they either chose to discard it or vote in its favor. He need not have worried just yet if it wasn’t perfect. What he rather seemed to care about was striking some kind of compromise. His previous proposal – for contingent elections to be conducted by a kind of committee chosen via a joint ballot of the House and the Senate – had attempted much the same and failed to garner any significant attention. But Gerry, undaunted, gave it another try. Some of his colleagues were quite set against holding contingent elections in the Senate, fearful as they were of adding to that body’s already substantial responsibilities. And others, despite repeated attempts to convince them otherwise, saw a contingent vote in the Senate as a necessary counterbalance to assigning electors to the states based on their relative populations. Gerry’s proposed solution – if somewhat ill-considered – was thus an eminently intuitive one. Sometimes, under certain conditions, contingent elections would be held in the Senate. And sometimes, under different conditions, contingent elections would be held in the House. Potential implications aside, it was a wonderfully straightforward proposition, and one which, if nothing else, sought to acknowledge what seemed likely to be the most significant partisan cleavage in American political culture under the auspices of the Constitution. What it also recognized, of course, was that certain of Gerry’s colleagues were ready to lend they support to just about any reasonable attempt at forming a consensus if it got them home sooner rather than later.

    As aforementioned, the Convention was entering its fourth month as of September, 1787, and it was only natural that some amount of weariness should have begun to set in by that time. Certainly, the assembled delegates didn’t want to take short cuts, or compromise their principles, or settle for something that they knew was less than ideal. But no plan, whatever its features or provisions, would satisfy everyone involved. And for that matter, the delegates had lives they needed to attend to, filled with matters of personal and professional significance. At some point, in short, the discussion would need to end. The essential question became, then, when was enough, enough? Angus King, Gerry’s fellow delegate from Massachusetts, gave voice to this tension very plainly when he responded to his colleague’s proposal by claiming that he, “Liked the idea, as calculated to satisfy particular members & promote unanimity, & as likely to operate but seldom.” Again, this amounts to a perfectly reasonable reaction given the circumstances in which King was speaking. That said, it does rather draw into sharp relief the nature of the enterprise upon which he and his colleagues had been laboring for months. The Philadelphia Convention had not been summoned so that a group of men coming from the various states might fashion between them a governing charter for the American republic that was agreeable to their particular interests. In a practical sense, of course, this is exactly what the proceedings became, but the intended purpose of it all was supposed to be a fair bit loftier. The delegates were supposed to formulate a plan of government for the United States of America that was durable, functional, and which served the needs of the inhabitants thereof. It wasn’t necessary that everyone involved in the drafting process particularly like the end result. Indeed, based on the breadth of opinions which the delegates professed between them it was more likely than not that some participants would come away from the process substantially displeased. So long as the end result was coherent and consistent while meeting certain basic requirements, however, the Convention will have met its objective.

    Bearing all of this in mind, Mr. King’s cited declaration might be seen as a fairly worrying one. He supported Mr. Gerry’s amendment to the Committee of Eleven’s proposal, not because he thought it likely to result in less problematic outcomes in terms of executive elections, but because he believed it, “Calculated to satisfy particular members & promote unanimity [.]” Like his fellow delegate from Massachusetts, it seemed, Angus King had ceased to care quite so much about the workability of whatever plan he and his colleagues ultimately came up with, so long as they eventually came up with something. Was Gerry’s proposal internally consistent? Did it address the various concerns that had been raised thus far? Mr. King did not say. The only recommendation which he saw fit to deliver was that it seemed likely to make certain specific delegates happy. This was a perfectly understandable turn of mind, to be sure, but arguably a misguided one. There could be no doubt that whatever plan of government the assembled delegates ultimately chose to adopt, more of them would be happy with it than fundamentally opposed. But popularity should have been the measure of success which they prioritized the least. Beyond being well-liked in the room, the governing charter which they collectively drafted would actually have to function. It would need to anticipate the priorities of the contemporary American political community, channel and enhance the strengths of the American people, and counter and check the flaws of the same. A proposal which enjoyed unanimous support might accomplish these objectives, but unanimous support was no guarantee of success.

    Nor was seeking unanimity a likely recipe for coherence or decisiveness. As George Read (1733-1798), lawyer, statesman, and former President of Delaware, pointed out in his response to King’s declaration, “If individual members were to be indulged, alterations would be necessary to satisfy most of them.” While this comment necessarily represented the extremity of the sentiment expressed by Mr. King, the concern which it embodied was nonetheless a valid one. If the assembled delegates were supposed to strive for unanimity, how many changes would have to be made to the proposal at hand? How many amendments would need to be bolted on after the fact? The delegates hadn’t been summoned to Philadelphia to try to make each other happy. They had convened in that city to try to create a new plan of government for the American republic which would function more satisfactorily than the Articles of Confederation. Would everyone agree on the merits and deficiencies of the final product? Almost certainly not. As aforementioned, the delegates disagreed too much and too widely to hope for anything of the sort. And this was as it should have been. Allowing everyone to have their way would almost certainly have failed to create anything more than an unwieldly boondoggle rife with internal contradictions. Rather than seek unanimity, then, the goal of the Philadelphia Convention should have been to build a consensus. Fewer of those involved were likely to come away satisfied with the result, it was true, but the result itself was likelier to fulfil its intended purpose.

    While he did not say as much himself, Roger Sherman of Connecticut arguably showed his agreement with Mr. Read by almost completely failing to acknowledge Mr. Gerry’s cited proposal. As recorded by Mr. Madison, Sherman’s response to King and Read was to affirm that he, “Liked the arrangement as it stood, though he should not be averse to some amendments.” Since what Gerry had just offered was itself an amendment, Sherman must therefore not have thought very much of it at all. Rather, in the event that the House was eventually granted the power to hold contingent elections, Sherman felt it worth altering the Committee of Eleven’s proposal so that the body in question, “Vote in the case by States, in favor of the small States, as the large States would have so great an advantage in nominating the candidates.” While such a change to the “arrangement as it stood” also arguably represented at attempt at conciliation on Sherman’s part, it was undeniably a less clumsy scheme than that proposed by Gerry. Rather than alternate the chamber in which contingent elections were held based on whether or not an incumbent was participating in the vote – a mechanism, as discussed above, with numerous problematic implications – Sherman intended for every contingent election to simply take place in the House. Such a permanent shift would entirely remove any advantage otherwise to be gained by an already overpowered Senate, while the added wrinkle of requiring the House vote by state delegation rather than individual member entirely eliminated the benefit enjoyed by the large states in the apportionment of presidential electors. The difference between those who opposed adding to the powers of the Senate and those who opposed lending further advantage to the large states was thus effectively and elegantly split.

    Yes, Mr. Sherman’s proposal was a sound one. At the same time that it did not add substantially to the Committee of Eleven’s proposal – as Mr. Gerry’s amendments often rather clumsily did – it also addressed the substantial concerns of several groups of delegates who otherwise found themselves fundamentally opposed. But that did not necessarily mean Sherman’s colleagues were ready to adopt it just yet. Mr. Wilson and Mr. Morris in particular still seemed to feel the need to explain to the fullest extent why allowing the Senate to conduct contingent elections was either the ideal solution to a lingering procedural question or blunder tantamount to reducing the United States to a permanent state of tyranny. Notwithstanding the fact that Sherman’s compromise more or less obviated the need for such discussion, the egos of these men would evidently stand for nothing less. Wilson went first, tacitly ignoring any of what Gerry, Read, or Sherman had said. Having, “Weighed carefully the report of the Committee for remodelling the constitution of the Executive [,]” Madison recorded,

He was obliged to consider the whole as having a dangerous tendency to aristocracy; as throwing a dangerous power into the hands of the Senate. They will have in fact, the appointment of the President, and through his dependence on them, the virtual appointment to offices; among others the offices of the Judiciary Department. They are to make Treaties; and they are to try all impeachments. In allowing them thus to make the Executive & Judiciary appointments, to be the Court of impeachments, and to make Treaties which are to be laws of the land, the Legislative, Executive & Judiciary powers are all blended in one branch of the Government.

To be sure, these were perfectly reasonable observations. The Senate, as thus far described, would indeed be tasked with ratifying treaties, confirming executive and judicial appointments, trying impeachments, and making law in the everyday sense of the phrase. Adding to these responsibilities the contingent right to elect the President would thus undeniably have served to make a uniquely powerful institution within the United States government even more formidable, potentially to the point of danger. Cogent as this reflection may have been on the part of Wilson, however, it was arguably robbed of some of its potency by the fact that it had already been offered several times before.

    George Mason, recall, during the previous day’s discussion, had asserted in reaction to the Committee of Eleven’s proposal that, “Considering the powers of the President & those of the Senate, if a coalition should be established between these two branches, they will be able to subvert the Constitution [.]” Hugh Williamson then memorably voiced his concurrence with this assessment. “Referring the appointment to the Senate lays a certain foundation for corruption & aristocracy [,]” he said, further claiming that having a chief executive elected by a plurality rather than a majority was a preferable course of action. A short time later, Mason’s fellow Virginian Edmund Randolph gave voice to this very same opinion. As Madison recoded it, the gentleman from Virginia apparently, “Dwelt on the tendency of 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 then, much as Williamson had done in answer to Mason’s remarks, John Dickinson responded to Randolph by asserting that he was, “In favor of giving the eventual election to the Legislature, instead of the Senate. It was too much influence to be superadded to that body.” Clearly, by at least the end of business on September 5^th, all those in attendance at Congress Hall in Philadelphia knew full well what granting the Senate the power to hold contingent executive elections would mean for that selfsame body’s already considerable authority. The point had been made and seconded, and then made again and seconded again. Mason had even taken a stand, claiming that he would rather live under an openly despotic government that one in which such a small body of men held so much power between them. No one should have had any need to be reminded of what the Committee of Eleven’s proposal involved, and everyone should have been eager to seize upon any proposition which appeared likely to obviate the stated flaws thereof.

    Mr. Wilson did not seize upon Mr. Sherman’s proposal, of course. He did not even acknowledge it to the extent of dismissing it on its merits. Rather, he proceeded as if Sherman had not spoken at all and the discussion of the previous day was still actively in progress. Perhaps he wasn’t quite satisfied that enough of his colleagues had fully grasped the danger which he perceived in allowing contingent elections to take place in the Senate. Mason, Williamson, Randolph, and Dickinson did, clearly, but perhaps they did not constitute enough of a coalition to suit Wilson’s objectives. And then again, perhaps it was purely a matter of ego. Regardless of whether the point had been made or not, it had yet to be made by James Wilson of Pennsylvania. And until he had his say on the matter – until he argued the thing himself – he would not be satisfied with the course of the debate at hand. Roger Sherman had already offered a perfectly sound solution to the criticism in question, but that would simply have to wait. Mr. Wilson had not yet had his moment.

    None of this is to say that Wilson had nothing of value to contribute. Having first echoed certain assertions that had already been made by several of his colleagues, he did then proceed in the same breath to offer a highly cogent – one might say somewhat “Madisonian” – observation on the same general topic. Seemingly in answer to those among his fellow delegates who were willing to excuse the potential dangers of allowing the Senate to appoint the President on the grounds that such contingent elections would be infrequent occurrences, Wilson attempted to draw the attention of his colleagues to the notion that the body in question was unlikely to just sit on such a responsibility once it had been granted. “The Senate [,]” he said, “Sitting in conclave, can by holding up to their respective States various and improbable candidates, contrive so to scatter their votes, as to bring the appointment of the President ultimately before themselves.” What Wilson seemed to mean by this, essentially, was that it would have been foolish to expect the Senate not to try to manipulate most executive elections to the best of their ability if they knew that the result would be a contingent vote in which they cast all the ballots. He was assuming, of course, that any given cohort of Senators would reliably favor their own interests over those of their fellow citizens, but this was very much in keeping with the substance of the discussion at hand. While the assembled delegates may not have always agreed on the details, they were of broadly the same opinion that trust should not have played a significant part in any aspect of the frame of government they were attempting to construct. Powers needed to be checked, responsibilities balanced. This mindset was especially true of James Madison’s approach to the task at hand – with his “ambition must be made to counteract ambition” mantra – and here Wilson showed himself to be very much of the same opinion. It would not do, he argued, to give the Senate a power and then expect them not to use it. Better to anticipate them using it as often as possible and then think very deeply about whether this presented a problem of not. Wilson obviously thought that it did, though certain of his colleagues rather strongly disagreed.

    Gouverneur Morris was chief among this group. Having previously seized from himself the role of the Committee of Eleven’s chief spokesperson and defender, he naturally took issue with Wilson’s attack and rose enthusiastically in defense of the proposal at hand. First, he asserted, any anxiety which his fellow delegates harbored stemming from the Senate’s possession of a contingent vote in an otherwise inconclusive executive election represented a gross overreaction on their part and a fundamental misunderstanding of what was actually supposed to take place. Far from having free reign at every opportunity to choose whomever they wished to fill the office of President, Senators, “Were limited to five candidates previously nominated to them, with a probability of being barred altogether by the successful ballot of the Electors.” The American people would have their say by way of the electors they chose to cast a vote on their behalf, and the electors would have their say by way of the candidates from whom they voted. Each of these intermediate steps would serve to limit the choices available to the Senate in the event a contingent election, to the point of possibly preventing such an election from even taking place. Wilson was assuming, of course, that a majority vote by the electors would be a common enough occurrence so as to validate his claim, but that was fair enough. He could no more have been proven right or wrong on that count than any of his opponents who asserted that a majority vote would be exceptionally rare. And he did effectively draw attention to an important aspect of the executive election process which at this stage had been otherwise forgotten.

    The Senate would, under the terms of the Committee of Eleven’s proposal, occasionally have reason to directly elect the President of the United States. Morris did not deny this or claim that it was a result he particularly desired. But while the discussion at hand had increasingly taken as its focus the potentially destructive relationship which this would theoretically create between the Senate and the President, the role to be played by the electors had been mostly pushed to the side. As Morris was keen to point out, the candidates whose names were ultimately submitted to the Senate would necessarily enjoy substantial support among the various electors. Allowing the top five vote-getters to stand in a contingent election rather than the top three or top two did potentially open the door for the elevation of a candidate who secured a marginal number of electoral votes, it was true, but even this did not necessarily represent a wholly inconsistent outcome. The electors, recall, were to be chosen by the people at large on a state-by-state basis. And Senators were to be appointed by the legislatures of the various states, the members of which were in turn to be elected by the residents thereof. While a contingent election in the Senate would therefore be slightly more removed from the direct intentions of the American people than would a vote by the electors themselves, it wasn’t as though the Senate represented a fundamentally alien authority. If the inhabitants of the American republic were going to be expected to trust their Senators to act on their behalf in a legislative capacity, why should they have feared these same representatives when they were given to act in an electoral capacity? Again, as Morris, pointed out, the Senate would not be able to elevate just anybody to the office of President. Rather, they would be constrained by the preferences of the American people’s chosen electors. To be sure, a contingent election in the Senate represented an extra step in the process of choosing a chief executive, but that’s all it was. Not the imposition of an arbitrary will upon the American people, or the application of some kind of hereditary aristocratic privilege, but the resort by one institution of popular government to the aid of another. Why should this have been cause for alarm?

Morris obviously did not think that it was. And, perhaps more to the point, he thought that his opponents were misreading the situation in the way they represented their various anxieties. Mr. Wilson, for instance, had only just argued that granting the Senate the right to hold contingent elections was tantamount to allowing the Senate to always choose the President because the former body would never tolerate the existence of a power which it could use but shouldn’t. If Senators knew that they could elect the President if certain conditions prevailed, he asserted, then they could be depended on to use every resource at their disposal to ensure that said conditions did prevail. Pragmatic though this claim might otherwise appear, however, Morris was evidently of the opinion that it wasn’t pragmatic enough. “If the Senate would act as was suspected,” he thus opined,

In misleading the States into a fallacious disposition of their votes for President, they would, if the appointment were withdrawn wholly from them, make such representations in their several States where they have influence, as would favor the object of their partiality.

What this assertion would seem to boil down to, in essence, is an admission on Morris’s part that the Senate was going to act in its own interests whether it could elect the chief executive directly or not. Of course, Senators were going to favor certain candidates for President over others. And, of course, they were going to do what they could to manipulate the situation at hand so as to encourage the outcome they desired. Preventing them from voting in contingent elections wasn’t going to stop them from behaving in this way, and in the meantime what it would do is leave unresolved the question of a tied or inconclusive electoral vote. Bearing this in mind, then, why not just give them the contingent vote and be done with it? Why not let the Senators do something useful with their ambition, solve a problem that needed solving, rather than try to keep them from doing something which they were going to succeed in doing anyway? Again, Morris was apparently in no mood to be delicate. On the contrary, he seemed to think that the tools as the disposal of himself and his fellow delegates – i.e., the various institutions of government which they had thus far contrived – were there to be used. It made no sense to fear them; they were what they were. And it made perfect sense to deploy them in such instances where they could be made to do good.