The Man of the People: Part II - Electors of Electors
By Scott Lipkowitz
Deciding the scope of executive power was only part of the founders' effort to hold back the flood waters of tyranny. The checks which the founders placed upon the President's authority, and the severely limited nature of that authority, would, they hoped, prevent whomever held the executive office from becoming a nascent king; but these safeguards only worked once someone had assumed the Presidency. Before that point an executive had to be chosen, and the process of choosing provided ample cracks in our hypothetical dam through which tyranny could flow. Making the selection of the President even more problematic was the fact that the President would be the one and only true 'national' official in a nation composed of thirteen individual, and often antagonistic, states. If the selection process in any way favored one region, state, or interest, the chief executive would become a fulcrum of instability around which the tenuous union of the states would disintegrate.
It is hard to overstate the importance of these inter-state divisions, and perhaps equally as hard for modern Americans to truly wrap their minds around it. Sure there are still regional animosities and religious, political, and economic divisions; but very few Americans could realistically envision a future in which these divides could actually lead to the dissolution of the country as a whole. Instead, imagine that there is a proposal to create a 'United States of Europe', and that this new super-nation will be headed by a chief executive. Choosing a 'European president' would present several major problems. For one, the populations of each European state vary in size; Germany has roughly 85 million, while France has only 65 million. Any election based entirely on popular vote would therefore give more populous nations an advantage in choosing an executive more likely to represent their nation and its interests. And those interests themselves are widely varied. Germany might want an executive willing to give preference to enforcing laws protecting its strong manufacturing sector, while Greece, Italy, and France might seek an executive who would curb the influx of refugees and migrants. The British might favor an executive willing to defer to the desires of the constituent nations, while the Poles might seek out an executive willing to confront an ever resurgent Russia. Then there is the issue of a consensus candidate; someone who could appeal to the broadest base of Europeans - a heavy lift given the long history of ethnic, religious, and national animosities. Finally, any European president would wield incredible authority, no matter how limited it might be, and thus, the mode of selecting said President would need to guard against the possibility that it could encourage the chief executive to entertain pretensions to dictatorial power. Now, given all of this in our hypothetical 'United States of Europe', devise a system of electing a chief executive in which all of these issues are balanced, no one nation or interest unduly benefits, and in which the chances of corruption, collusion, and potential despotism are mitigated. This is the problem which presented itself to the delegates of the Constitutional Convention in the summer of 1787.
Weeks of endless debate over the issue eventually yielded four major solutions, which James Madison, eager to cut through the stalemate, succinctly summarized. Congress, already the primary branch of government and at least in part directly elected by the will of the people, could appoint the chief executive. Or the decision could be left to the state legislatures, whose members would be more familiar to their constituents and in whom many of the delegates to the Convention believed the true safeguard of the people's liberty was to be found. If neither of those options were appealing, then the citizens could be made to vote for a smaller body of individuals- electors - who would then vote for President. And lastly, the citizens of the nation could directly vote for President themselves.
Allowing the Congress to appoint the President was initially the preferred method of a majority of the delegates - indeed it was the initial proposal put forth by Madison's Virginia Plan, presented at the start of the Constitutional Convention. However, allowing the Congress to appoint the chief executive did little to curtail the potential for tyranny. If chosen by the popularly elected house, regional and state divisions would weigh heavily upon the President, making it unlikely that whoever held the office would be able to see past their regional or state allegiances in favor of the broader national interest. Larger states, having a greater number of representatives, would be able to push their agenda through the chief executive, to the continued dismay of smaller states such as Delaware and New Jersey. Allowing the Senate - in which all states maintained equal representation - to appoint the President still did not alleviate the potential for the abuse of power. No matter which house did the choosing, the most likely outcome was a chief executive bound to some small group of powerful legislators, not to the nation as a whole, resulting in the concentration of supreme power in the hands of an oligarchy - an outcome just as undesirable as the possibility of instituting an American monarchy.
Though the delegates were fearful of an all-powerful executive; they were equally weary of too much power in the hands of the legislature. If Congress was to act as the speed break on Presidential power, who then would act as the speed break on theirs? A President elected by Congress could not reasonably be expected to police them; nor could Congress, if allowed to appoint the chief executive, be expected to reasonably police an officer who was eternally indebted to them - especially since the idea of limiting the President to one long term had been discarded. Congress had been given the authority to investigate the President and to remove him from office if evidence of "high crimes and misdemeanors" or "treason and bribery" were brought to light. But how could Congress be trusted to investigate someone they had placed in office? The very same crimes and misdemeanors committed by the President may have been sanctioned or encouraged by Congress. Perhaps in such an event, Congress would turn a blind eye and allow the chief executive to remain in office indefinitely, so long as their policies were continued. Or perhaps, having caught the President abusing his position, Congress could choose not to remove him from office, and instead use the threat of exposing his crimes as a means to control him throughout his tenure. Conversely, factions other than those which appointed the President might one day rise to power and unjustly remove a perfectly law abiding executive in order to place a new President beholden to them in office. The President needed to faithfully execute the laws passed by Congress, but the executive also needed to be independent of Congressional intrigue if any real checks on tyranny were to be maintained. Allowing Congress to appoint the President would be, in the words of Gouvernor Morris, "the work of intrigue, of cabal, and of faction."
Allowing the state legislatures to elect the chief executive would engender the same problems as allowing Congress to decide. Regional and state tensions would play just as much a role in the decision making process; not to mention the sheer impossibility of trusting the very same states who had refused to surrender their autonomy under the Articles of Confederation, to be able to come to any kind of consensus on a national executive. Some delegates to the Constitutional Convention viewed the States as the natural check on Congress' authority, and allowing them to elect the President was one further way in which this could be achieved. However, to fierce nationalists like Hamilton and Madison, this would in no way alleviate the problems encountered by the Articles, and thus little real consideration was given to this idea.
If neither state or national legislatures could be trusted to elect the President, then the most obvious choice - at least to modern minds - is direct election by the citizens themselves. Indeed John Dickinson would implore his fellow delegates to consider this option. Aware of the great, though limited, powers which the President would employ, Dickinson believed that the national executive's legitimacy could only be achieved through direct election. "The only true and safe principle on which these powers could be committed to an individual", Dickinson stated, was the notion that the President "should be in a strict sense of the expression, The Man of the People..." Yet this option also raised the most vocal opposition, and not only as a result of upper class disdain for the lower class farmers and workmen who had helped to secure the independence of the nation the founders now sought to govern.
Chief among the delegates' concerns was, according to Roger Sherman of Connecticut, that the average citizen would "never be sufficiently informed of characters" to make a prudent choice. George Mason of Virginia echoed Sherman's sentiments, stating "it would be unnatural to refer the choice of a proper character for chief Magistrate to the people, as it would, to refer a trial of colours to a blind man." Many of the delegates shared Sherman and Mason's dismal appraisal of popular vote; but they did so for more practical rather than cynical reasons. In the age of Facebook, Twitter, and the 24 hour news cycle it is easy to forget that information in the late 18th century was not so free flowing. Few national newspapers existed, and even where they did, their readership was mostly confined to large urban centers such as New York and Boston. In the south, where Charleston, South Carolina was the only hub approaching a major city, the flow of information was even more sparse. Books, the next best source of information were financially beyond the reach of most citizens; pamphlets, such as Common Sense, enjoyed wide circulation primarily because they were relatively inexpensive. Very few average citizens ever left the area surrounding the town or place of their birth and were thus often not plugged into the happenings within their own state, much less across the country. There were no railroads or long distance carriage roads on which news could be carried, again limiting the hubs of information to urban ports where merchant vessels periodically transited through, bringing with them reports from other parts of the country. All of this meant that the average citizen was, by virtue of geography and the limits of technology, woefully ill-informed about the nation in which they lived. As historian Carol Berkin points out, "cataclysmic events in New England might pass unnoticed by farmers in western Virginia or central Pennsylvania." This dearth of information also worked against any potential candidates. Few citizens of the United States, including the majority of the delegates themselves had a reputation which reached beyond the borders of their home states. The abysmal state of transportation, and its subservience to the weather, ensured that few, if any, ever would. To many of the delegates, this general level of ignorance meant that any informed decision regarding who should wield the national powers granted to the President, was beyond the scope of the average citizen.
Additionally, this lack of informed opinion was yet another crack through which tyranny could seep. The average citizen's knowledge passed from town to county to state, barely, if at all, making it to the level of national awareness; practically ensuring that their choice for chief executive would be heavily biased towards a candidate from their state or region. Either thirteen separate Presidents - each elected by their state of residence - would be the outcome of popular vote; or, if by some chance one candidate did receive a majority of the popular vote, it would most likely be the result of regional alliances, placing the President once again in the position of favoring one section of the nation above the whole. Ignorance would also enable the general population to be lead by the force of strong willed or ambitions individuals - a fear Madison expounded in the Federalist 10 - especially if such individuals hailed from their home state. Elbridge Gerry, whose work to secure better pay and equipment for soldiers during the war had earned him the nick-name "Soldiers' Friend", expounded upon Madison's fears. If the average citizens were ill-informed by virtue of their geographic isolation from one another, it stood to reason that any national organization, sufficiently equipped and popular with the people over a wide geographic range would be able to guide their decisions and place the true power of the Presidency in said organization's hands. Gerry had the Order of the Cincinati - a national fraternal order of military officers, of which George Washington was a member - in mind when voicing these concerns; but in reality any national group, be it trade guild or religious institution could potentially exercise such influence. This observation also foreshadowed the rise of political parties - the dreaded factions of Madison and Hamilton's Federalist Papers - which, if turned into national machines could create further divisions and allegiances among the general population, overshadowing any sense of national identity which many of the founders sought to create.
Ignorance among the general populace - and its many pitfalls - could potentially be circumvented by the use of electors. Theoretically, electors would be known to the citizens of each state and would simultaneously have enough knowledge of current affairs and qualified individuals for the executive office to make an informed decision on behalf of the citizens. In reality, such high expectations could not be assured. Wealth and privilege were no guarantee that an individual had a broad understanding of the problems of the day, or that they had any thorough knowledge of the character of any individual running for the office of President. The same problems of geographic and technologically induced ignorance which made popular election so unpalatable, did the same for the use of electors. Even if electors were selected, they would, one would imagine, have to gather together in order to vote; and such a gathering might smack of cabal and conspiracy. Deals among the electors could be struck in exchange for the support of this or that candidate, placing the chief executive in the debt of who-knows-what special interests. This was no way to safeguard against tyranny.
No matter what method they examined, the delegates to the Constitutional Convention saw tyranny bursting through the cracks; and although they consistently voted in favor of having Congress appoint the President, many, like Gouvernor Morris, were not convinced. Still at an impasse after further debate, a Committee on Postponed Matters was convened to come up with a final proposal to put forth before the entire Convention. Composed of one member from each state delegation, the Committee eventually put forth what we today refer to as the Electoral College, even though it is not explicitly called by that name within the Constitution itself. In it's final form, it provided for indirect election of the President through the use of electors. State legislatures were endowed with the authority to determine how those electors would be chosen (perhaps under the assumption that among the legislators, some would have a wide ranging knowledge, and thus be able to pick electors up to the task); and if the legislatures so decided, the people themselves would be able to vote directly for the electors. But, as Republicus pointed out in his criticism of this system in the Anit-Federalist 72, this most likely meant that the state legislatures would simply choose the electors themselves in order "to save trouble"; which is what most state legislatures in fact did.
To ensure that the electors could not unduly advocate for their particular state they would be required to cast one of their two votes - the electoral college compromise created the office of Vice President - for someone who was not a resident of their home state. In theory this would ensure that the President and Vice President (who for want of any real job was eventually made president of the Senate) would not both hail from the same state and thus not be unjustly biased. Countering the threat of a conspiracy of electors making back-room deals, the electors themselves would not meet in person, but would instead transmit their votes to Congress, where they would be counted and a winner declared. No member of the United States government would be allowed to serve as an elector; a further precaution against abuse or tyranny.
The Electoral College, for lack of an official title, was eventually adopted, after much violent push back; and even then only on the heels of the persuasive arguments of John Dickinson and Gouvernor Morris; but it did little to address the problem regarding the lack of national figures for whom the electors could vote. In the event that no candidate achieved a majority of electoral votes, the election would be decided by the House of Representatives, whose shorter terms and direct election by the citizenry was believed by the founders to be a safeguard against possible collusion with any one presidential candidate. Yet, with a limited pool of national personalities, it seemed fairly certain that the majority of Presidential elections would be determined, not by the electors, but by the House, where regional, state, and even personal enmity would certainly play a role. In that event, all of the aforementioned drawbacks of having the legislature decide would suddenly come back into play.
It seems almost incredible that the very same delegates, who had meticulously attempted to design a system of government with the sole purpose of avoiding sectionalism and the warring of opposing factions, would not see that this electoral compromise would eventually give rise to the very things they were afraid of - especially when many of them correctly saw the potential traps and pitfalls. Perhaps a reason for this, in so far as it concerns the election of the President, was that so many of the delegates wore George Washington blinders. Washington was the most famous man in America, hero general of the Revolution, a true consensus candidate, and someone in whom they believed they could trust to execute his duties without hint of corruption or avarice. While most of this may have been true, they seemed to exercise little thought to what would happen the day after Washington exited public life. Maybe they assumed that there would be others among the Revolutionary generation - Thomas Jefferson or John Adams for instance- who could similarly fill the role of consensus candidate, and thus thought little of what would happen after that generation had exited the national stage. Or perhaps, though they were quick to recognize the frailty and susceptibility to faction in others, the founders viewed themselves as enlightened men who could rise above the fray of the common rabble. Whatever the reason, the faith the Constitution seemed to place in electors and in the House of Representatives, would barely last four years following Washington's two terms as President.
Though not perfect, the Electoral College was a compromise designed to balance the various interests of the individual states against the ever present fissures through which tyranny and abuse might be unleashed. Decisions are made with what you have on hand - and what the founders had on hand was tantamount to the creation of a 'United States of Europe' today. Yet, by building into the system of Presidential election the very real possibility that Congress could decide who the chief executive would be, the breach leading to Congressional abuse and deal-making would eventually be burst wide open. And once irreparably damaged, this structural flaw would make Elbridge Gerry's fears of national institutions monopolizing Presidential politics a reality. By the election of 1824, any chance that such a future could be averted would be buried alongside Washington.
Bailyn, Bernard. The Ideological Origins of the American Revolution. Harvard University Press. 1992.
Berkin, Carol. A Brilliant Solution (Inventing the American Constitution). Mariner Books. 2002.
Clinton, George. Anti-Federalist 67. The New York Journal. 1787. http://www.thefederalistpapers.org/antifederalist-paper-67
Grayson, William. Anti-Federalist 68. 1788. http://www.thefederalistpapers.org/antifederalist-paper-68
"REPUBLICUS". Anti-Federalist 72. The Kentucky Gazette. 1788. http://www.thefederalistpapers.org/antifederalist-paper-72
Madison, James. Federalist 10. The New York Packet. 1787. http://avalon.law.yale.edu/18th_century/fed10.asp
The United States Constitution.1787. https://www.billofrightsinstitute.org/founding-documents/constitution/
Articles of Confederation. 1777. http://www.ourdocuments.gov/doc.php?flash=false&doc=3