by Ray Raphael
The elector system was “rather founded on accident, than any principle of government,” in Grayson’s words, but it was an accident with a purpose. A last-minute entry at the Federal Convention, it was intended to bypass congressional selection on the one hand and popular election on the other. As Madison stated, the best way to keep people at arm’s length from their government was to create “successive filtrations” in the electoral process, and the jumble created by Gouverneur Morris and the Committee of Eleven did precisely that. People elected their state legislators; these men determined the choice of electors in “such manner” as they wished (they could either do it themselves, hold statewide elections, hold district elections, leave the task to county conventions, or whatever); the electors then voted for the president and the vice president; finally, if there was no clear majority, members of the House of Representatives made the final selection from among the finalists selected by electors. Anti-Federalists picked up on the “filtration” scheme and pounced on it. A New York writer calling himself Cato wrote, “It is a maxim in republics, that the representative of the people should be of their immediate choice; but by the manner in which the president is chosen he arrives to this office at the fourth or fifth hand.” Republicus, from Kentucky, commented wryly, “An extraordinary refinement this, on the plain simple business of election; and of which the grand convention have certainly the honour of being the first inventors.”36
The presidential elector system proved difficult to defend. Madison admitted it was a “compromise,” and rather than touting its virtues, he mustered no more than a nothing-is-any-better apology. “It is observable,” he told the Virginia convention, “that none of the honorable members objecting to this, have pointed out the right mode of election. It was found difficult in the [Federal] Convention, and will be found so by any gentleman who will take the liberty of delineating a mode of electing the president.” Madison had a point. Although the elector system lacked any coherent rationale, it was difficult at the time to imagine an acceptable alternative to congressional selection of the president. Popular elections for governors were still regarded as novel, and they were not practiced south of New York. Further, how could popular elections be implemented on a nationwide scale? Who would be allowed to vote—and who could even address the suffrage issue? State legislatures, with their very different qualifications for the franchise? The federal Congress, already suspect for usurping state powers? If the president were actually chosen by popular election—one citizen, one vote—people from small states would fly into a rage. So would southern slave owners, unless they received an extra three-fifths of a vote for each of their slaves. Any new method of selecting the president would have to address the same tangle of problems that puzzled delegates to the Federal Convention. The task was daunting (although not necessarily impossible), and we have no record that anybody at the state conventions tried seriously to work out the details of an answer. Hence, no amendment was offered, and the elector system, strange and rambling as it was, survived as a fallback. Once Morris and the Committee of Eleven concocted the idea, the delegates to the Federal Convention accepted it because they could think of none better, the ratification conventions did likewise, and we are stuck with it today, warts and all.37
At the Federal Convention, the most insistent proponent of popular elections had been James Wilson, that unlikely populist who had once fired into a crowd of protesters from his home and subsequently huddled in an attic to escape the people’s wrath. Wilson had also been the first to suggest a system of electors, but that was clearly his second choice. Every time the subject came up, he touted the virtues of popular elections for all offices. That was the only way to honor both the letter and the spirit of popular sovereignty that buttressed the new government, he argued. After the convention, however, Wilson changed his stance. Perhaps by way of apology, he tried to explain why the delegates had not opted for popular election of the president. “It was the opinion of a great majority in Convention, that the thing was impracticable” on a nationwide scale, he said. Left unsaid: the “great majority” did not include Wilson, who was repeatedly voted down.38
Wilson changed his position on other matters as well. At the convention, he had suggested that the people themselves, not state legislators, should choose their senators; this would make public officials more accountable, he held. He also wanted to give the House some say in ratifying treaties, rather than leave that power exclusively with the Senate. He argued passionately against the “blending” of senatorial and presidential powers, and to counter this, he had supported Mason’s call for an executive council. He was worried that under the new configuration, “the President will not be the man of the people as he ought to be, but the minion of the Senate.” The Senate had “a dangerous tendency to aristocracy,” he said, so he tried repeatedly to tone down its powers.
After the convention, though, Wilson tried his best to sell the plan, even though it included many features he had opposed. No longer worried about the finer points, he became a crusading Federalist. In a major address to some four thousand people gathered at Philadelphia’s State House Yard shortly after the Federal Convention submitted its work to the public, Wilson countered George Mason’s objections point by point. Suddenly Wilson opposed Mason’s council. There was no need for one because the Senate posed no danger, he now said. To counter Mason’s prediction that “this government will commence in a moderate aristocracy” and then produce either “a corrupt aristocracy” or a “monarchy,” Wilson countered, “Perhaps there never was a charge made with less reasons than that which predicts the institution of a baneful aristocracy in the federal senate”—a charge he himself had made just four weeks earlier.39
James Madison, like Wilson, had taken positions at the Federal Convention that he would not promote later. Madison had been slow to arrive at his views of the presidency. Back in April, before the convention, he had confessed to Washington that he had yet to “form my opinion” about how a national executive “ought to be constituted,” nor did he have specific notions about “the authorities with which it ought to be cloathed.” Throughout the Federal Convention, the man often called the Father of the Constitution searched for the answer, or rather answers, for in Madison’s mind the devil was in the details. While some entertained grand visions for the presidency and others feared those grand visions, Madison sought only to perfect a delicate balance of authority. He neither promoted nor denounced presidential powers with blanket statements; he only wanted to fine-tune them.40
Yet Madison’s fine-tuning did not coincide with the will of the convention. The threshold for overriding a presidential veto should be three-fourths instead of two-thirds, he said. Fearing senatorial influence on the president, he opposed trying impeachments in the Senate. With Mason and Wilson, he was one of the few who supported a separate executive council. He thought the power to pardon people convicted of treason was “peculiarly improper for the president”; what if the president himself was somehow linked to the case? He thought that a treaty of peace should require only a simple majority of the Senate, not a two-thirds supermajority, and that the Senate should have the authority to conclude a peace treaty without presidential approval, since a president might have too much at stake in the continuation of a war.41
Madison lost out on all these matters, so to support ratification, he would have to argue in favor of measures he had once opposed. The Senate did not have too much influence over the president, he would have to say. There was no need for an executive council. No president would ever prolong a war needlessly. People did not have to worry about a president pardoning his friends or co-conspirators, and if ever a president did step out of bounds, the Senate was a suitable body to try his impeachment. Would Madison now be able to argue these points convincingly? Further, could he answer the large and sweeping questions about the presidency, which he might not have fully resolved to his own satisfaction? Perhaps it was best that he allow his partner in persuasion, Alexander
Hamilton, to take the lead in explaining the presidency during the ratification debates.
Madison and Hamilton, of course, were the primary authors of the famous Federalist Papers, eighty-five separate essays first published in newspapers and then gathered into two volumes titled The Federalist. Hamilton had conceived the idea with his fellow New Yorker John Jay, and they had asked Gouverneur Morris to join them in writing a series of in-depth articles addressing each major component of the proposed Constitution. Morris declined, having retreated from the political scene to pursue his business interests with Robert Morris, but Madison agreed to be the third partner. Then Jay fell ill and was able to contribute only minimally, and that left Madison and Hamilton to take on the bulk of the project.42
When these two divided up the various aspects of the Constitution, they decided Hamilton would be the one to tout the virtues of the presidency. “The constitution of the executive department of the proposed government claims next our attention,” Hamilton wrote at the outset of The Federalist 67, and for the next eleven essays he tried to reassure a suspicious public that they had little to fear from a single chief executive. Issue by issue he addressed recess appointments, the elector system of selection, the four-year term and reeligibility, the absence of a council, the need for a single executive, the presidential veto and presidential pardon, the role of commander in chief, the treaty-making and appointment powers, and so on.
In The Federalist 68, Hamilton defended the unique manner of selecting the president, which placed even this full-throated promoter of the Constitution a bit on the defensive. “If the manner of it be not perfect, it is at least excellent,” he stated at the outset. In order to extol the virtues of the plan, he revealed that the framers had insisted that the people participate in selecting their president. Since “it was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided,” they “referred it in the first instance to an immediate act of the people,” who would select their “agents in the election.” The emphases are mine, but the repetition is his. Over and over Hamilton put the people at the center of the formula. He did speak of electors, but he hid them as best he could behind an assumed populist argument. “The executive should be independent for his continuance in office on all but the people themselves,” he stated, although in fact it was the electors, not the people, who would choose. From there it was only one small step to factual misrepresentation, and Hamilton did not hesitate to take it. “The people of each state shall choose a number of persons as electors,” he wrote flatly. (This was no incidental error; in The Federalist 77, he wrote again that the president was selected “by persons immediately chosen by the people.”) According to the actual Constitution, though, the manner of appointment of electors was entirely up to the legislature of each state, not the people, and in fact many state legislatures in the early Republic would simply choose electors themselves, leaving “the people” entirely out of the process.
Hamilton was a most unlikely proponent of people power. In the notes he prepared for his monumental speech to the Federal Convention on June 18, he had proposed a strong executive “capable of resisting the popular current” and “the unreasonableness of the people.” A prime function of the office was to keep the people in check, he had said back then, and he chastised his fellow delegates for giving up too much ground to democracy: “Gentlemen say we need to be rescued from the democracy. But what the means proposed? A democratic assembly is to be checked by a democratic senate, and both these by a democratic chief magistrate.” Now, as he tried to sell the plan to the people, he heralded their alleged participation in the selection of a president, even to the point of distorting the document he was defending.43
Before continuing with his itemized list, Hamilton addressed the deep-seated fear that the American president would be a king in sheep’s clothing. To do this, in The Federalist 69, he first created a caricatured portrait of the British monarchy that Revolutionary-era Americans had embraced in their national narrative. The British king, in Hamilton’s depiction, was an absolute tyrant, unchecked in any way by Parliament. Compared with such a monarch, the American president looked benign. Over and over, Hamilton noted that the president possessed no more structural powers than the governor of New York, a not-so-subtle swipe at his political antagonist Governor George Clinton. Of course Hamilton knew better than this, but by pretending that the British Revolution of 1688 had never happened and that British Whigs had absolutely failed in their attempt to create a mixed system, Hamilton turned people’s exaggerated fears to his own advantage.
The supreme irony here is that during the Federal Convention, behind closed doors on June 18, Hamilton had claimed “that the British Government was the best in the world; and that he doubted much whether any thing short of it would do in America.” Now he boasted there was a “total dissimilitude” between the American president and the “King of Great-Britain, who is an hereditary monarch”; then, in pushing for a strong executive, he had declared the president “ought to be hereditary, and to have so much power, that it will not be his interest to risk much to acquire more.” Now he stated, “The qualified negative of the president differs widely from this absolute negative of the British sovereign”; back then, he wanted to give the chief executive an absolute “negative upon all laws about to be passed.” Now he assured the public that the president “will have only occasional command” of state militias; at the convention, he wanted “the Militia of all the states to be under the sole and exclusive direction” of the United States and its commander in chief, not occasionally, but always.
Why the turnaround? Hamilton was telling people what they wanted to hear. This hardly diminishes the importance of his arguments in The Federalist, but magnifies them. We cannot look to Hamilton’s essays for insights into the mind of a man whose ideas were deemed unacceptable at the Federal Convention, but when we view them as political documents, they teach us a great deal. Hamilton understood his opposition, and by observing the ways he tried to win it over, we can better understand his audience. Hamilton had learned from his misstep at the convention. This time, he would stay strictly within the mainstream, and his attempt to do so helps us decipher what that mainstream was.
In crafting the Constitution, delegates to the Federal Convention had referred often to what they called “the genius of the people.” Edmund Randolph (June 1), George Mason (June 4, 7, and 20), James Wilson (June 7 and 19), Elbridge Gerry (June 12), Charles Pinckney (June 25), and Oliver Ellsworth (August 18) used that term. Afterward, in The Federalist (12, 22, 39, and 55), Hamilton and Madison also gave nods to the genius of the people. Many doubted the people’s abilities to judge wisely, but Federalists and Anti-Federalists alike realized they would have to address what we call today public opinion. In the ratification debates, each side wanted to influence public opinion, but to do that, they first had to understand it. They needed to know what and how people thought, and that is precisely why we can use Mason’s objections, Henry’s speeches, Wilson’s address at the State House Yard, and The Federalist to help us understand the audiences they were intended to address.
First and foremost, the American public demanded a republican form of government with no vestiges of monarchical or aristocratic prerogatives. Anti-Federalists played on this often, while even Federalists like Hamilton, John Adams, and John Dickinson, who admired Britain’s mixed monarchy, had to toe the line. In the notes to his June 18 speech at the Federal Convention, Hamilton had written, “It is said a republican government does not admit a vigorous execution. It [republican government] is therefore bad; for the goodness of a government consists in a vigorous execution.” Now, in the opening to The Federalist 70, he proclaimed boldly that the idea that “a vigorous executive is inconsistent with the genius of republican government” was “destitute of foundation.” That false notion was “not without its advocates,” he noted disdainfully, even though he had been one of them. Hamilton would
have been immediately rejected by his potential audience had he not proclaimed his support for republican principles and argued that the proposed Constitution implemented them.
At first glance, it would appear the nation’s embrace of republican principles favored Anti-Federalists. Republican government meant limited government, and this played into the hands of Patrick Henry and others who warned that the new form would be too large, too strong, and potentially too intrusive. “Liberty and property,” the rallying cry of the prewar protest movement, was deeply ingrained in America’s political culture. If citizens were to make a new contract with their government, they wanted to prevent that government from taking what they already had. So when Federalists argued for a stronger government, and in particular for a strong and independent executive arm, they needed to reassure the public that the government could still be held close by and accountable. The people would control the president, they had to declare. Hence Hamilton’s dramatic change of tone from the convention to the ratification debates and his deliberate misrepresentation of the electoral process.
Federalists, too, used republican principles to their advantage. One way to limit the abuse of governmental power was to separate the branches of government and allow them to check each other. Both sides cited Montesquieu on this. While Anti-Federalists argued that the separation of powers was blurred in the proposed Constitution, Federalists claimed that the newly created office of the president could counteract “legislative tyranny.” Under the Articles of Confederation, Congress was the government, and even at the state level legislatures dominated other branches. With a weak or nonexistent executive, there was no parity. People had therefore grown accustomed to blaming Congress or state legislatures for any complaints about government, and Federalists found these bodies were easy targets. “Legislative authority” tended to “absorb every other,” Hamilton wrote in The Federalist 71. State assemblies “seem sometimes to fancy that they are the people themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter.” Worse yet, legislative bodies were prone to “the spirit of faction,” as Hamilton observed in The Federalist 73. When a faction took over the legislature, and then the legislature ruled unchecked, the few could control the many—but not under the new plan, Hamilton declared. An independent president would be “a salutary check upon the legislative body, calculated to guard the community against the effects of faction.”
