WHAT DID IT MEAN?
On September 4, Gouverneur Morris presented the committee’s plan to the Convention. Many of the committee’s members, he said, had wanted a popular election of the president, but that was not what the committee had recommended. Instead, Morris said, the committee was proposing a change that would eliminate the prospect of intrigue and faction were Congress to appoint the president.138 The committee’s plan also would make it possible to reelect the president to a second term and eliminate term limits, which would deprive the country of an experienced president.
This was an argument for a form of separation of powers, and it seemed to win over Butler.139 But it would be a stretch to claim that the other members of the committee or the Convention subscribed to it, or understood it to mean our current understanding of separationism. They didn’t anticipate a powerful executive branch, and thought that the choice of president had been removed from the people in three ways.
First, the delegates who had been skeptical about democracy and who subscribed to Madison’s filtration theory would have noted that an electoral college was interposed between the voters and the president under Article II, Section 1, clause 2:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress . . .
This plausibly helped bring Madison on board; he thought that the electors would exercise an independent judgment, arguing before the Virginia ratifying convention that a choice by electors would be “more judicious” than a vote by the people.140 The author of the Virginia Plan continued to think it necessary to filter the impurities of democracy. In Federalist No. 64 John Jay agreed with him, as did Hamilton in Federalist No. 68:
It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow citizens from the general mass, will be most likely to possess the information and discernment requisite to so complicated an investigation.
That wasn’t the only reason for supporting an electoral college. In debating representation, delegates had reached the Three-Fifths Compromise, which gave slave states additional representation by counting slaves as three-fifths of a person. In addition, some were concerned that a state might inflate its votes by broadening its franchise.141 However, all of these concerns might have been addressed without interposing a group of people between the voters and the president; nor was it necessary to defend their independent discretion, unless there was something suspect about choices made in popular elections. Similarly, the delegates would not have thought the clause’s ban on congressmen serving as electors necessary, unless they thought the electors would exercise independent judgment.142 Today the American electoral college, unique in the world, lingers on like some stray piece of DNA that once served a long-forgotten need and now is devoid of purpose. But it was put there for a reason.
Second, most delegates thought that they had agreed on a congressional appointment of the president. If, under clause 2, electors failed to give a candidate a majority of votes, clause 3 threw the election to the House (originally the Senate, in the committee’s draft).
The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. . . .
This is what happened in the elections of 1800 and 1824, and most of the Framers thought it would almost always happen this way, since they did not expect that, after George Washington, national candidates with countrywide support would emerge. George Mason thought the election would be thrown to the legislature 95 percent of the time,143 and many of the most prominent members of the Convention, including Madison, Wilson, Hamilton, Dickinson, Randolph, Charles Pinckney, Rutledge, and (likely) Sherman, agreed that this was likely.144 Almost the only delegate to disagree was Gouverneur Morris,145 who more than anyone had put the winning coalition together.
This would have come down to Madison’s Virginia Plan; and in case anyone missed the point, he repeated it in Federalist No. 39, contrasting elections for members of the House with elections for senators and presidents. Members of the House would be elected “immediately” by the people, while senators and presidents would be chosen “indirectly from the choice of the people.” That, he said, was the way in which governors were appointed in state governments—that is, by the legislature.
A third coalition, composed of small-state delegates, might have thought they had won the electoral debate. They had just won the Connecticut Compromise, which gave them an equal number of seats in the Senate, and they were on a roll. Letting state legislatures choose the method of selecting presidential electors might have seemed like one more notch on their belt. Six weeks before, the delegates had voted 8 to 2 for electors chosen by state legislatures, and some delegates would have expected that that is just what their states would do, given the choice. That indeed is how most states selected electors in the first presidential election, of 1788–89, and in 1812 half the states still chose their electors in this manner. One-fourth did so in 1824, and South Carolina continued to choose electors in this way until 1860.
Small-state delegates would also have understood that each state would have as many presidential electors as the number of its senators and representatives, giving smaller states a greater clout than they would have had if the number of electors were based on state population. Moreover, in the event electors failed to give a majority of their votes to a single candidate and the choice of president fell to the House, each state, large or small, would have one vote, a measure proposed by the astute Sherman.146 But for this, recalled Rufus King (a nationalist member of the Committee on Unfinished Parts), small-state delegates would not have agreed to the compromise.147
The delegates had voted for a form of separation of powers, but just what did this mean to them? Madison’s encomium to separationism in Federalist No. 47 is often taken to refer to the modern American presidential system, but that is not what he had in mind. In the same paper, he held up the 1776 Virginia Constitution, which he had had a hand in drafting, as an example of separationism. We wouldn’t think it so today. The Virginia Constitution declared that “the legislative, executive and judiciary departments, shall be separate and distinct,” but then made the governor the creature of the legislature. He was not popularly elected, but instead was appointed by the legislature. Just in case he forgot who appointed him, the legislature also appointed an executive council that could veto the governor’s decisions. The constitution went on to prohibit the governor from exercising “under any presence . . . any power or prerogative, by virtue of any law, statute or custom of England.” That might have been too great a concentration of power in the legislative branch, thought Madison, but (as the educated reader of 1787 would have understood the Constitution) this was nevertheless “the sense in which [the separation of powers] has hitherto been understood in America.”
What the delegates would not have anticipated is the kind of separation of powers we have today. Their presidents would nearly always be chosen by the House of Representatives, like its Speaker, making splits between the executive and legislative branches far less likely. The choice would be made by state delegations in the House; state legislatures would also choose both presidential electors and senators. Politics would be centered at the state level, and a party that won one branch of government would in most
