By the time that the debate which gave rise to the United States Electoral College resumed its final session on September 6th, 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 6th 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 5th, 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.
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