The Once and Future King. F. H. Buckley

to us. The legislature would make the laws, but not apply them; the executive would apply them, but not make them; the separation of the two powers would preserve liberty and the rule of law.⁷⁴

      This was an old-fashioned view of executive authority. A hundred years earlier, a more modern John Locke had argued that the executive should have broader powers. Under the royal prerogative, the King had the discretion to interpret or even vary legislation when the public good so demanded; Locke thought this a valuable right, since legislators are not “able to foresee, and provide by laws, for all that may be useful to the community.”⁷⁵ However, Sherman and other Framers hearkened back to even earlier fears of the prerogative originating with the English Civil War, and parliamentary jealousy of the use Charles I had made of the prerogative to dissolve Parliament and rule autocratically.

      Sherman’s views about the dangers of such a prerogative were those of a member of a “country” party, in contradistinction to a “court” party, with the distinction between the two derived from the court and country parties of early modern British history.⁷⁶ During the English Civil War, the court party favored the Crown prerogative, at the expense of Parliament; the country party sought to restrict the royal prerogative, and saw Parliament as the guarantor of English liberties.

      The two parties also differed on the need for civic virtue in a republic. Country party members thought that republican government could not be preserved unless the citizens had a disinterested desire to promote the public good, shorn of any attachment to their private or factional interests. “Cabal,” “corruption,” and “faction,” where private interest trumped the public good, were seen as mortal ills for a state.⁷⁷ By contrast, court party members scoffed at the idea of a special kind of republican virtue. With Hume they agreed that “all plans of government, which suppose great reformation in the manners of mankind, are plainly imaginary.”⁷⁸

      Apart from Sherman, country party members likely included Elbridge Gerry of Massachusetts; John Lansing and Robert Yates of New York; Benjamin Franklin and Jared Ingersoll of Pennsylvania; Gunning Bedford and Richard Bassett of Delaware; Luther Martin, Daniel Jennifer, and John Mercer of Maryland; Virginia’s Edmund Randolph and George Mason; Hugh Williamson of North Carolina; Pierce Butler and Charles Cotesworth Pinckney of South Carolina; and Abraham Martin and William Few of Georgia.⁷⁹ The court party was represented by Hamilton; Gouverneur Morris, Robert Morris, and James Wilson of Pennsylvania; and John Rutledge of South Carolina.⁸⁰

      Madison may also be counted as a member of the court party at the Convention. His Vices essay argued that self-interest would blind voters to the common good. “Place three individuals in a situation wherein the interest of each depends on the voice of the others, and give to two of them an interest opposed to the rights of the third? Will the latter be secure?” As an answer, Madison devised a constitutional regime whose purpose was to blunt the majoritarian excesses of an unconstrained democracy. In Federalist Paper No. 51, Madison famously expanded on the idea that republican virtue would not suffice. Men are not republican angels, he said, but self-interested seekers of private gain, and government should channel self-interest in such a way that it serves the public good. “Ambition must be made to counteract ambition,” so that the overweening pursuit of advantage by one group is checked by other groups in the competition for power.

      In general, country party members wanted a relatively weak executive and opposed a popularly elected president, while court party members preferred a president elected by the people, recognizing that this would clothe him with greater political legitimacy. But the distinction between the two parties blurs over an influential group of delegates, including Washington, who adhered to country party ideas about republican virtue, but who nevertheless wanted a strong national government—and who, sooner or later, saw a popularly elected president as a way to strengthen the national government.⁸¹ And then there was Madison, a court party nationalist whose filtration principle nevertheless led him to propose a congressionally appointed president. How he and country party nationalists such as Washington were led to support the method of electing presidents stipulated in Article II of the Constitution, and what they understood this to mean, is one of the greatest and least understood dramas of the Convention, and of American government.

       JAMES WILSON’S MAN OF THE PEOPLE

      The delegates came from very different backgrounds. Some were conservative, some not; some were rich, some not. Surprisingly, it was the conservative or wealthy delegates—Hamilton, James Wilson, Gouverneur Morris, and John Dickinson—who wanted a president elected by the people; the more republican delegates, whom one would have expected to be most sympathetic to popular elections—Roger Sherman, George Mason, and John Rutledge—sought an appointed executive. As Hamilton observed, “the members most tenacious of republicanism . . . were as loud as any in declaiming against the vices of democracy.”⁸²

      James Wilson had most cause to fear the “excesses of democracy,” after the “Battle of Fort Wilson.” Like Hamilton, Wilson wanted a strong central government; unlike Hamilton, Wilson sincerely believed in popular sovereignty, and subscribed to that most benign of legal fictions, the idea that in America, sovereignty vests in the people.⁸³ Of all the delegates, he came closest to championing the present constitutional regime, one with a popular election of members of both houses of Congress, as well as the president. He had signed the Declaration of Independence and served on the Supreme Court, but deserves to be remembered principally for his role at the Convention.⁸⁴

      What Wilson had recognized, before anyone else, was how a democratically elected president would strengthen the strong national government he yearned to see. An elected president would be the only member of the government chosen by all the people of the United States, and would provide the leadership to resist parochial parties from different states. That was not a politic thing to say before the defenders of states’ rights at the Convention, but Wilson could be more candid at the Pennsylvania ratifying convention later that year. The president, he said, would be “THE MAN OF THE PEOPLE,” and as such would “consider himself as not particularly interested for any [one part of the United States], but will watch over the whole with paternal care and affection.”⁸⁵

      Wilson recognized that, for most delegates, a direct election of the president was a bridge too far. Nevertheless, the idea of democracy might be made more palatable if presidential electors were interposed between the president and the people; what Wilson proposed was the electoral college: Voters would elect members of the college, who would then choose the president. This was a clever method of addressing the fears of democracy, since it suggested that the electors might exercise an independent judgment if the voters chose poorly. However, Wilson’s motion was defeated 7 to 2 in roll call 11,⁸⁶ with only Pennsylvania and Maryland supporting it. The delegates then voted 8 to 2 for a president appointed by the legislature.⁸⁷ Wilson had failed, but over the course of the Convention he and his allies would create a minority coalition of nationalists who supported a strong presidency.⁸⁸

       THE STATES’-RIGHTS DELEGATES COUNTERATTACK

      A second group of delegates, led by Elbridge Gerry, opposed the Virginia Plan’s proposal of a congressionally appointed president. These were states’-rights supporters who were troubled by the degree of centralization implicit in both Wilson’s democratically elected president and Madison’s congressionally appointed president, and who wanted the states to appoint the president.⁸⁹ A congressional appointment, argued Gerry, would lead to “corruption.”⁹⁰ For country party members, this was a code word for pampered courtiers trading favors at the feet of a monarch, and Gerry said the Virginia Plan would result in the same kind of underhanded deals between the president and legislators. A state-appointed presidency, Gerry argued, would give us better presidents than those whom the people would elect, in keeping with Madison’s filtration principle.

      Very early in the Convention the states’-rights delegates watered down the Virginia Plan, with a unanimous vote on June 7 for a Senate appointed by state legislatures.⁹¹ This had been proposed by John Dickinson as a means of giving states a voice in the federal government. This was also, he said, an application of Madison’s filtration theory, since