Shaping the Electoral College
[Editor: This is the first daily installment of a 14 part series by Rodney Dodsworth and his Article V Blog on the Founders invention and evolution of the presidency and the Electoral College. A day-by-day account behind the closed doors of the 1787 Constitutional convention.]
By Rodney Dodsworth, Aug 5, 2019
Not until the waning days of the Philadelphia Convention did our Framers complete their plan of the Electoral College. In contrast, Article I elections to Congress and Article III appointments to the Scotus were taken care of weeks before. What took so long to determine Article II electors?
The answer is that the Constitution isn’t linear. In a linear design, adding or amending one clause, one Section, one Article doesn’t affect previous clauses, Sections and Articles. In contrast, our Constitution is non-linear. It more resembles a puzzle in which the authority of one branch necessarily affects the power and reach of the other two branches. So it was in 1787 with the design of the Executive.
Delegates found enough difficulty thrashing out the particulars of a Legislature and a Judiciary, whose purposes and general structures were familiar to generations of Americans. What about a chief Executive? How many? Rome did quite well for much its history with two consuls. Annual or multi-year terms? How many terms? Maybe a life term like English monarchs? Should the Executive be subservient to the Legislature? Was he strictly an administrator, an executor of the law like most state governors? Should he lead armies? Popular election? Election by the state governors? English monarchs had Privy Councils, so why not the American CEO? Some time passed before delegates went beyond the term, “Executive.” After all, anything stronger might be interpreted as subversive intent for a nascent monarch. And thanks to George III, there were plenty of well-known executive abuses to prevent.
Alongside all of this was cracking the tough nut of Separation of Powers. While we take the idea and its boundaries for granted today, our Framers at the start of the convention weren’t so sure. Where the British monarch had theoretical veto power over Parliamentary bills, it hadn’t been used since 1688. British kings, without input from Parliament, appointed judges. Why violate separation of powers and make judicial appointments contingent on Senatorial consent? How can republican states and an umbrella government with a chief executive coexist?
This and more is why familiarity with the Presidency as it evolved over the summer of 1787 is worthwhile. In their finished product the Framers carefully matched electors to each of the four major institutions (House, Senate, Presidency, Judiciary) with the duties of the institutions. Those who propose to change these electors should first consider the logic of the Framers’ original design. Explain the Framers’ error. Second, they must describe the benefits of their proposals and how they promote good governance and liberty.
Just as the Framers’ experience under the Articles of Confederation showed that committees weren’t suited to Executive power, and our experience since 1913 proves that popularly elected senators cannot fulfill their Constitutional duties, so too is the National Popular Vote an unwise, ill-considered and destructive proposal. If carried out, I fear it will doom the remains of our republic.
In subsequent squibs we’ll examine the pertinent convention debates surrounding this new guy to history, the President of the United States, and why the Framers’ Electoral College is so essential.
|Shaping the Electoral College, Part II
by Rodney Dodsworth, August 8, 2019
June 1st, 1787.
Not until the waning days of the Philadelphia Convention in September did our Framers complete their plan of the Electoral College. As with the other major institutions of their Constitution, (House, Senate, Judiciary) they were careful to properly match electors to these institutions, meaning those who installed the members of the House, Senate, Presidency and Judiciary had a natural interest in the duties of the institutions. It is why, for instance, the people did not elect Senators and states did not elect Representatives to the House.
Delegates established a quorum eleven days after the scheduled start date of May 14th. I’ve wondered at times if this is evidence of the hand of God. The delay gave the VA delegation’s James Madison time to convince his fellow Virginians to present a revised plan of government, a starting point for the convention other than the Articles of Confederation. Ratification of piecemeal amendments to the Articles failed in 1781 and 1783.1 Why revisit old territory? By offering a plan that addressed the nation’s problems the VA delegation seized the high ground and directed the early debate.2
On June 1st, VA Governor Randolph introduced Resolution 7: “Resolved that a National Executive be instituted; to be chosen by the National Legislature for the term of —– years, to receive punctually at stated times, a fixed compensation for the services rendered, in which no increase or diminution shall be made so as to affect the Magistracy, existing at the time of increase or diminution, and to be ineligible a second time; and that besides a general authority to execute the National laws, it ought to enjoy the Executive rights vested in Congress by the Confederation.”
A Magistracy? America booted its last Majesty only eleven years earlier, and the Virginians propose another? Charles Pinckney (SC) stood at once to urge a “vigorous Executive,” and James Wilson (PA) moved to support a single man for the office. With this, a hush fell over Independence Hall. A single menacing man? It conjured visions from the past – unrestrained royal governors, a crown, a scepter! Ben Franklin, whose unassuming wisdom saved the convention a couple times, asked his fellows to deliver their sentiments. The non-recordation of individual votes and the parliamentary rule of secrecy, both during and after the convention allowed delegates to freely offer their opinions and change them as the Constitution took shape over the summer. No one need fear political repercussions for their day-to-day votes and speeches.
Randolph saw the “fetus of monarchy” in a unitary Executive. Liberty was safer in three sets of hands. When properly designed, the office could be just as vigorous and responsible. Great Britain should not be “our prototype.” But why shouldn’t the best British principles, if consistent with American manners and genius, be adapted? Even the youngest delegate was born an Englishman and had probably boasted that he lived in the best and freest kingdom on earth. George III betrayed British principles and forced America to find liberty in republican government.
What Powers? Roger Sherman (CN) declared the duty of the Executive magistracy nothing more than carrying out the will of the legislature, which expressed the supreme will of society. Like a modern corporate CEO, Sherman’s Executive carried out the will of the republic’s board of directors and nothing more.
To alleviate fears of a single Executive, James Madison (VA) went further than Sherman and proposed to better define the Executive’s duties. Where extensive powers would be safer in the hands of more than one Executive, proscribed powers could be left in a single man. He motioned to amend the clause, so the Executive would execute the laws, appoint officers and execute other powers not legislative or judicial. Mr. Wilson seconded.
Our Framers were well versed in men’s dispositions and shortcomings. They knew that power intoxicates and corrupts. Governments tend naturally toward despotism. I see every day in this convention a concern for properly matching adequate power and no more to the branches and offices of the new government. In similar fashion, as we shall see, the methods devised to elect or appoint members of the three branches were devised to minimize corruption and shady backroom deals so common in the British system.
Charles Pinckney (SC) regarded Madison’s amendments as redundant, and therefore unnecessary. When the great work is completed, we will find that the Executive and Judicial departments were granted general executive and judicial powers under the Constitution. Congress, on the other hand, would be strictly entitled to legislative powers, herein granted.
Executive Electors. James Wilson (PA), the product of Pennsylvania’s semi-radical political system, endorsed direct election of the Executive by the people.
Roger Sherman (CN), who had seen enough ruinous democracy since the revolution, found safety in an Executive elected by the Legislature. To him, an Executive independent of the Legislature led to tyranny.
The delegates considered various lengths of Executive service. Some went with the possibility of reelection, some with single long terms. In their deliberations there was always a tug between two concerns – how to avoid truncating the service of competent men needed by their country, yet prevent the rise of a political class dedicated to the trappings of power and little else.
In closing the day, an ever-democratic James Wilson preferred the people elect both houses of the legislature as well as the Executive. But he couched popular election of the executive with a caveat that made its way into the Electoral College when he said, ”the objects of choice in such cases must be persons whose merits have a general notoriety.” Indeed. From Wilson we can see at this early juncture the Framers sought only the best men for the executive office and will soon realize the key to finding such men was to carefully design a set of electors suited to the task. As opposed to today’s widespread mythology, the Framers’ first purpose was not to prevent urban voters from dominating the presidential election process.
- McLaughlin, A. C. (1905). The Confederation and the Constitution. New York: Harper and Brothers Publishers. 172.
2. As for the VA delegation, Patrick Henry declined his appointment due to family issues. Richard Henry Lee also declined. Both were fierce Anti-Federalists. Had either attended, we cannot know the outcome. Perhaps no new Constitution of government at all.
Shaping the Electoral College, Part III
by Rodney Dodsworth, August 12, 1019
June 2nd, 1787.
Delegates once again met in committee, the committee of the whole, a parliamentary device that allows a more open exchange of views without the urgency of a final vote. For instance, in a committee setting George Washington, the President of the Convention, sat with his fellow VA delegates. After debating, the committee submits its conclusions to the Convention where the same people deliberate once again, as if they hadn’t before, and where the votes are generally final.
Executive Electors. Recall James Wilson’s (PA) closing comments from yesterday in which he wished to see popular election of men with general notoriety, a respected nationwide reputation like that of George Washington. Today, Wilson proposed the people elect Electors from special districts who in turn appoint the Executive. An advantage of this mode is that it would produce more confidence among the people in the first magistrate than an election by the national Legislature per the Virginia Plan. We can thank James Wilson for what would eventually evolve into the Electoral College.
Elbridge Gerry (MA) feared corruption if the National Legislature appointed the executive. Imagine the sleaze and bribery! He leaned toward election by the state legislatures either directly or by selecting nominees for electors to elect. The people ought not to act directly even in the choice of electors, being too little informed of personal characters in large districts, and liable to deceptions. His idea would find its way into Article II, “Each state shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . “
But, at this early juncture, Wilson’s motion to set up districts in which the people elect electors failed 7-2. The committee-of-the-whole then agreed by an 8-2 vote with the appointment of the Executive by the first branch of the Legislature for a term of seven years.
Presidential Character. George Washington was the model; he was the ideal, the sort of man our Framers sought. Wilson mentioned national notoriety. But what of the motivations of other men?
Benjamin Franklin (PA) saw “inconveniences in the appointment of salaries; I see none in refusing them, but on the contrary, great advantages.” Franklin feared the sort of men attracted to well-paying federal offices. Everyone in the room was familiar with the widespread, open, and infamous British corruption of saleable offices. He went on in words that ring true down through the ages, “Sir, there are two passions which have a powerful influence on the affairs of men. These are ambition and avarice; the love of power, and the love of money. Place before the eyes of such men, a post of honor that shall be at the same time a place of profit, and they will move heaven and earth to obtain it.”1
In closing, he pointed out the public virtue of George Washington who didn’t accept a salary for his eight arduous years of military service. Franklin did not believe that salaries are necessary to attract patriots to government.2
Removal From Office. John Dickinson (DE) proposed the Executive be removable by the National Legislature on request by a majority of the states. I’ve wondered if this arrangement wouldn’t be preferable to, as practiced today, the ineffective impeachment by the House and conviction by the Senate. Considering the absence of the States from the Senate since 1913, I admittedly favor the additional federal element of state impeachment, even though today’s Senate is thoroughly corrupted by democracy.
In response to Dickinson, Gunning Bedford (DE) seconded the motion. Roger Sherman (CN) would have the National Legislature alone responsible for Executive removal. George Mason (VA) warned of Executive dependency if he was both elected by and impeachable by the National Legislature. While he unequivocally supported some means of Executive disposal, legislative removal was questionable if the Legislature had a part in Executive appointment.
James Madison and James Wilson reflected their general preference for popular government rather than federal majorities when they pointed out that a majority of States calling for executive removal could easily mean a minority of people represented. Overall, they thought State participation in impeachment was bad policy. Today, we can see that Madison/Wilson’s views prevail. Since the foundation of Congress went fully popular with the 17th Amendment, the impeachment and conviction of high administration officials doesn’t depend on high crimes or misdemeanors at all; they shamefully depend on the President’s popularity polls.
All states except DE rejected Mr. Dickinson’s motion that the “Executive be removable by the National Legislature on request by a majority of the states.”
Instead ,Hugh Williamson (NC) motioned and the committee passed: “And to be removable on impeachment & conviction of malpractice or neglect of duty.” Thankfully, these terms did not make the final cut. Instead, much later on, delegates determined only crimes against the Constitution itself were worthy of removal from office.
Keep the States – Check the Executive. In his speech, Dickinson argued that a firm executive office could exist outside limited Monarchy, and was safely possible in a republic. Now, in the British government, the weight of the Executive arose from the political attachments which the Crown drew to itself, and not merely from the force of its prerogatives. In place of these attachments an American republic must look for something else. One source of stability was the double branch of the Legislature. Since a Senate of the States had yet to make its way into the Constitution, Dickinson expressed hope for a second legislative branch as stable as the Brit House of Lords. The division of the country into distinct States formed the other principal source of stability. This division ought therefore to be maintained, and considerable powers left with the States, especially as a check on the Executive (my words and italics).
Lessons of History. If ancient republics were found to flourish for a moment and then vanish forever, Dickinson said it only proves that they were badly constituted and that we ought to find remedies for their diseases. I say the Framers did just that, and it is to our shame that Americans since 1913 have not recognized the folly of the 17th Amendment and its negative impact on lawmaking, the Judiciary and the Presidency.
Among the take-aways from today’s proceedings is the Framers’ careful consideration of electors to the executive office. While all power flows from the people, they are not, as a group, qualified to judge the character and ability of men outside their local area.
Much depends on the duty and character of the office itself. Was the president to merely execute the law? If so, state legislative appointment of an experienced business CEO with experience in the law would probably suffice. But what if the Framers envisioned a higher place? If their executive was the face of the nation, the commander-in-chief of the armed forces, the man who led the nation in foreign affairs, who nominated judges, ambassadors, and had a limited veto over congressional bills, then his office should have a foundation on the people. Such an executive, when he occasionally goes toe-to-toe with Congress or other nations will need support, and that is best derived from the people themselves.
The motion as to the number of supreme Executives was postponed
In closing, a vote was taken to limit the President to one term, which passed 7-2-1.
- Franklin – “Besides these evils, Sir, tho’ we may set out in the beginning with moderate salaries, we shall find that such will not be of long continuance. Reasons will never be wanting for proposed augmentations. And there will always be a party for giving more to the rulers, that the rulers may be able in return to give more to them. “The more the people are discontented with the oppression of taxes; the greater need the prince has of money to distribute among his partisans and pay the troops that are to suppress all resistance, and enable him to plunder at pleasure.”
2. Just ask Donald Trump.
Shaping the Electoral College, Part IV
by Rodney Dodsworth August 15, 2019
Benjamin Franklin – “The first man at the helm will be a good one.”
June 4th, 1787.
The road to the Framers’ Electoral College was . . . arduous. At the open of today’s business, again in the committee-of-the-whole, one man would hold the executive office, be elected by the House of Representatives, and would remain in office for one seven-year term. His duty was to execute the law and the executive powers granted to Congress in the Articles of Confederation.
One and all knew perfectly well who was to be the first good man in the executive office. We cannot measure the influence and commanding presence of the most famous and trusted George Washington. Delegate Pierce Butler (SC) later wrote to a friend that the powers of the President “are full great, and greater than I was disposed to make them. Nor do I believe they would have been so great had not many of the members cast their eyes towards General Washington as President.” The American Presidency was made for men like George Washington and Donald Trump.
Ultimately, how was the American executive to be not only strong and energetic like the British Monarch, but also be safe for liberty? Our Framers admired the British system. While it would not do for Americans, the powers of Parliament and King hovered over the delegates. After the Convention, Luther Martin (MD) remarked, “We were eternally troubled with arguments and precedents from the British government.”
James Wilson (PA) provided a partial answer to checking the power of a single chief Executive. The recent experience among the thirteen states was that powerful legislatures will roll the Executive. He thus supported an absolute negative, with no override by the legislature.
In opposition, Benjamin Franklin related how the absolute veto in PA fostered incredible public corruption, even at the expense of scalped frontier settlers. Pennsylvania colonial Governors constantly used the veto to extort money. No good law could be passed without a private bargain with him. An increase of his salary, or some donation, was always a condition until at last it became the regular practice to have orders in his favor on the Treasury, presented along with the bills to be signed, so that he might actually receive the former before he should sign the latter. Roger Sherman (CN) also disapproved of the executive veto. Why should a single man be empowered to absolutely overturn the will of the whole?
Pierce Butler (SC) had been in favor of a single Executive Magistrate, but not when armed with an absolute negative over the law. He observed that the Executive power was growing in all the countries of Europe. Gentlemen seemed to think that we had nothing to apprehend from an abuse of the Executive power. But why might not a Cataline or a Cromwell arise in this country?
Judge Gunning Bedford (DE) and George Mason (VA) also opposed Executive checks over the legislative. Experience, per Benjamin Franklin’s Pennsylvania proved the danger. Rather than institute a veto over the representatives of the people, why not enumerate the legislative powers of Congress? The Representatives of the people were the best judges of their interest, and ought to be under no external control whatever. In this framework there was no need for the veto.
Mason related further abuse of the veto. The Executive may refuse his assent to necessary measures until he gets the appointments he wants, and having by degrees engrossed all these into his own hands, the American Executive, like the British, will by bribery and influence save himself the trouble & odium of exerting his negative afterwards. We are not indeed constituting a British Government, but a more dangerous monarchy, an elective one. We are introducing a new principle into our system, and not necessary as in the British Government where the Executive has greater rights to defend. Do gentlemen mean to pave the way to hereditary monarchy? Do they flatter themselves that the people will ever consent to such an innovation?
The people never will consent to this executive power. Notwithstanding the oppressions and injustice experienced among us from democracy, the genius of the people is in favor of it, and the genius of the people must be consulted. Mason hoped that nothing like a monarchy would ever be attempted in this country. A hatred to its oppressions had carried the people through the late Revolution. Will it not be enough to enable the Executive to suspend offensive laws, until they are coolly revised, and the objections to them overruled by a greater majority than was required in the first instance? He never could agree to give up all the rights of the people to a single Magistrate. If more than one had been fixed on, greater powers might have been entrusted to the Executive. He hoped this attempt to give such powers would have its weight hereafter as an argument for increasing the number of Executives.
James Madison (VA) provided a compromise solution in a qualified legislative override. It was against the temper of Americans to grant monarchal powers to the Executive. His motion for a legislative 2/3 veto override passed.
Delegates then defeated the judicial veto of Congressional bills.
Like every other delegate, Franklin knew the first man at the helm would be a good one, but unless they devised an adequate electoral system, the Executive power would certainly increase, as elsewhere, until it ended in monarchy.
Shaping the Electoral College, Part V
by Rodney Dodsworth Auguat 16, 2019
June 9, 1787
Our Framers were not about to substitute one national tyrant with another. All had lived under the abuses of George III and his royal governors. Less well-known today is the 1776 reaction by the newly independent States. In an 18th century version of “power to the people,” the States set up overly democratic governments featuring weak governors. Although the rules varied from State to State, most legislatures appointed governors, made judicial appointments, and even served a judicial roles in some cases. Property wasn’t secure as the legislatures ran from one extreme to another according to the passions of the day. They violated wholesale Charles De Montesquieu’s admonition against combining legislative and executive power.June 9th, 1787.
So, Americans had suffered under strong executives and suffered under weak ones; they wanted neither. They sought a balance in which power was properly divided among branches, each with their own rights and prerogatives, such that no man or group of men could rule by fiat.
As opposed to the headless Articles of Confederation, the ideal administrator in our new republic was powerful enough to check legislative mistreatment, yet was sufficiently limited in his own powers. Furthermore, per Montesquieu, this man must not be the tool of any institution, faction, or collection of factions which we know today as political parties. The American President was independent of the other branches, but not isolated from them.
We cannot overstate the Framer’s efforts to avoid the executive abuses of George III as well as the democratic abuses of overly popular government. The chief executive must depend on the foundation of all republics, the people, yet not be so beholden to them that he and the office descend into tyranny.
On June 9th, the Committee of the Whole returned to executive elections. Since the goal was to provide an endless succession of men equal to George Washington, delegates sought an electoral method that identified and appointed such men. Why not rely on the judgement of other chief officers to identify in others the requisite traits in public virtue and leadership?
Elbridge Gerry (MA) proposed executive election by the State governors in proportion to each State’s representation in the Senate. At this point in the proceedings Senate membership was proportioned, like the House, according to population. There’s also been a shift in thinking of the chief executive away from his mere duty to execute the law. Unlike the English monarch, he wasn’t to be the heart and soul of the nation, but perhaps he should be its face, the man other nations regarded and respected as the limited leader of a free people.
So, instead of a tight connection with the authors of the law per the Virginia Plan, Gerry moved to establish an executor independent of Congress. He described election by governors as analogous to the principle observed in electing the other branches of the national government: the first branch being chosen by the people of the States, and the second by State legislatures. He did not discern any objection to this method and supposed the governors would select fit men for the office. Afterward, it would be their interest to support the man of their own choice.
While Gerry’s chief executive was not a tool of Congress, Virginia Governor Edmund Randolph opposed State governors as electors because the chief executive would lack the confidence of the people. Furthermore, expect State governors to select a man from amongst themselves, meaning covert side deals and corruption. He doubted the election ever of men from small States, and wasn’t confident in the governor’s familiarity with men outside their States. Finally, governors are very close to their legislatures, and would likely direct their governor’s vote for a national chief executive.
A national Executive thus chosen would not likely defend with vigilance & firmness the national rights against State encroachments. He did not envision that governors would feel the interest in supporting the national Executive which had been imagined. As Randolph put it, “They will not cherish the great oak which is to reduce them to paltry shrubs.”
Gerry’s motion for governors as executive electors was defeated, 10-0-1.
Delegates had so far considered and rejected elections by the people, the House of Representatives, Congress, State Legislatures, Governors, and through temporary electors from special districts. All except one method shared a fatal deficiency: sitting Presidents beholden to men with interests too narrow for the man who was to represent the American republic.