it could have led to a motion that the electors themselves be elected by popular ballot, as James Wilson had proposed on June 2;121 or it might be tacked on to a motion that the electors be chosen by state legislatures, as Elbridge Gerry had suggested,122 and as Jacob Broom and Maryland’s Luther Martin had proposed.123 What Morris, Ellsworth, and Broom hoped to create was a coalition of all those opposed to congressional appointment, for they only had no use for electors.
The tactic succeeded. The motion passed 6 to 3, with only the three southernmost states holding out for a congressionally appointed president.124 Ellsworth and Broom were states’-rights supporters, and they next moved that the electors be chosen by state legislatures. This passed 8 to 2 in roll call 183, with Madison’s Virginia in dissent and Morris’s Pennsylvania voting yes.125 The Pennsylvanians had bowed to what they saw as inevitable, a states’-rights coalition that had won one trick after another that month.
This came close to the solution that the delegates eventually adopted in the Constitution’s Article II, Section 1, clause 2, which specifies how state legislatures would choose electors. Under Article II, the states are permitted to let voters elect the electors, and within fifty years most states did just that. That possibility was not open to the states under roll call 183; what then would a presidency have looked like? The states would be stronger, of course. There would also be a much-weakened separation of powers, since state legislatures would appoint both the president and the Senate. The party structure of American politics would be based at the state level, and this would likely have carried over to elections for the House of Representatives. A winning coalition of states would carry all before it, and the gridlock that characterizes the federal government today would largely be absent.
In short order, the delegates had voted twice against what we understand as the separation of powers, in both cases by overwhelming margins. On July 17, in roll call 167, they had voted unanimously for a congressional appointment of the president; two days later they had voted 8 to 2, in roll call 183, for a president appointed by electors appointed by state legislatures. In both cases they had rejected the popular election of the president, and affirmed his dependence on legislatures.
That should have put an end to it. But on July 24 a Georgia delegate, arguing that it would be difficult to find capable men to serve as electors in distant states, once again moved that the president be appointed by Congress. The motion passed 7 to 4 in roll call 215, with Virginia and Pennsylvania voting no.126
Roll call 215 may have seemed decisive, but the delegates remained troubled, and the next day considered a proposal to split the difference. The president would be appointed by Congress for his first term, but if he sought a second term, he would be appointed by electors appointed by the states. This motion failed, seven votes to four.127 That left the Virginia Plan on the table. On July 26 George Mason moved that the president be appointed by Congress; this again passed, 6 to 3, in roll call 225, with Washington and Madison voting no.128
At this point the delegates had voted six times on proposals for a congressionally appointed president. Its supporters had assembled a caucus composed of those, including Randolph, Sherman, Mason, and Charles Pinckney, who thought liberty best defended by the legislature, and who feared that a strict separation of powers would make a monarch of the president.129 The supporters also included those, including Gerry, Sherman, and Pinckney, who simply didn’t think that the people were up to the task of electing a president.130 Rounding them out were the delegates from the three southernmost states of North and South Carolina and Georgia, who, representing slave states that opposed an end to the slave trade, had their own reasons to fear a concentration of power in the national government. They were opposed by a smaller group of states composed of Pennsylvania and (depending on who showed up that day) Maryland, Delaware, and Virginia.
The delegates now thought they were nearly done. At the end of the day they turned over the draft constitution, with its appointed president, to a Committee of Detail for fine-tuning, and adjourned for ten days. The committee reported back to the Convention on August 6, with a draft constitution that departed significantly from the Virginia Plan, but which still retained a congressionally elected president.131 That question, it was thought, had been settled.
It wasn’t, though. On August 24, the delegates returned to the question. Daniel Carroll of Maryland, one of the two Catholics at the Convention and an ardent democrat, proposed that the president be elected by the people, and not the legislature. Only Pennsylvania and Delaware supported the motion, and it failed, nine votes to two, in roll call 355.132 The coalitions that had been assembled for roll calls 11 and 215 continued to hold, if less strongly than before. But then Gouverneur Morris spoke up, warning of legislative tyranny if the president were dependent on the support of Congress, and proposing that the president be appointed by electors themselves elected by the people. This gained three more votes, including that of Virginia; but the motion still failed, 6 to 5, in roll call 359.133
A motion to postpone the issue failed, as did a motion to refer the matter to a committee of all the states. Gouverneur Morris then proposed that the president be chosen by electors, as an abstract matter. The delegates would have understood that the electors might be either democratically chosen or appointed by the states. Had the motion passed, it would have amounted to a rejection of a congressionally appointed president. However, the delegates were split 4 to 4, and the motion was taken to have failed.134
This was the high tide of separationism at the Convention. Morris had won Connecticut and New Jersey over to his side, but still had not assembled a winning coalition. There were now three proposals on the table: one for presidential appointment by the states, one for congressional appointment, and a third for election by the people. As can be seen in tables A.1, A.2, and A.3 of appendix A, the first two proposals secured majority support in various roll calls. Only the third, with its popularly elected president, failed to pass every time it was put to the delegates.
The delegates arrived at their final compromise two weeks later, on September 6, in what became Article II of the Constitution. Two narratives might explain how they finally settled on the manner of choosing a president. The first is that there was a last-minute conversion, in which democratic delegates persuaded their colleagues to accept a popularly elected president by appealing to the need for a separation of powers. This is the commonly accepted view of the Convention, but I think it mistaken. A fair reading of the Framers’ debates (assisted by the empirical study of appendix A) reveals a different understanding of what they intended, and what they expected from the Constitution they drafted. The preferences and coalitions that emerged over the first three months of the Convention were too strong for what would have been a radical change of heart.
On August 31 the delegates referred the question of presidential elections to the Committee on Unfinished Parts, with one delegate for each state. Those who favored a democratically elected president were represented by Madison, Gouverneur Morris, Dickinson, Carroll, Rufus King of Massachusetts, and possibly Hugh Williamson of North Carolina.135 They were opposed by New Hampshire’s Nicholas Gilman, South Carolina’s Pierce Butler, and Georgia’s Abraham Baldwin. The two remaining members of the committee, Roger Sherman and New Jersey’s David Brearley, had supported an appointment by Congress, but their states had voted a few days earlier, on roll call 359, for popular election.
The committee was well aware that whatever solution it might propose would have to commend itself to the delegates. The Convention was now three months into its deliberations. Everyone sensed that it must come to an end shortly. Years later Madison recalled that the decision about how to choose a president, made so late in the day, “was not exempt from a degree of the hurrying influence produced by fatigue and impatience.”136 They were out of time and voted for the plan with a minimum of discussion. What they devised was the basis for the Constitution’s
