The Once and Future King. F. H. Buckley

few days, however, the crisis had passed, and Madison seems to have made up his differences with Morris. Years later Madison remembered the New Yorker not unfondly. “To the brilliancy of his genius, [Morris] added, what is too rare, a candid surrender of his opinions, when the lights of discussion satisfied him, that they had been too hastily formed, and a readiness to aid in making the best of measures in which he had been overruled.”¹¹⁷ Evidently Morris had seen the need to flatter Madison, who was only too happy to receive the attention of his more sophisticated colleague.

      At the same time, Morris brought Madison around to the idea of a popularly elected president. When he arrived in Philadelphia Madison had subscribed to Hume’s theory of filtration, with its appointed executive, but without investing the deepest thought or feeling on the subject. A month before the Convention he confessed his uncertainties to Edmund Randolph. “A national Executive will also be necessary. I have scarcely ventured to form my own opinion yet, either of the manner in which it ought to be constituted, or of the authorities with which it ought to be clothed.”¹¹⁸ It was now prudent to drop Hume’s filtration theory, but Madison needed a new theory to do so; and that was what Morris handed him, by invoking the separation of powers. At some level Madison must have recognized, with the Pennsylvanians, that the nationalist cause he supported would be served by a powerful president, one who could stand up to the states as American presidents have done since then. Moreover, a filtration scheme in which Congress appointed the president would make less sense to a nationalist if state-appointed senators would assist in the filtering. However, practical considerations were little more than an empty breeze to Madison, who yearned for the rock of a good hard theory. Happily, he was a supple theorist, who could amend his theories when the need arose.¹¹⁹

      The penny, so carefully inserted by Morris, now dropped. Madison had authored the Virginia Plan’s proposal for a congressionally appointed president, but after listening to Morris he did a nimble volte-face. As a nationalist, Madison was dismayed by the Connecticut Compromise and senators appointed by state legislatures, and as a nationalist he was now brought around to the idea of a popularly elected president. Like Morris, he recognized that a president so elected would strengthen the national government, and like Morris he veiled his argument in separationist, rather than nationalist, terms: A separation of powers between legislative, executive, and judicial powers was essential to preserve liberty, and the three branches could be separate only if they were independent of each other. “A dependence of the Executive on the Legislature, would render it the Executor as well as the maker of laws; & then according to the observation of Montesquieu, tyrannical laws may be made that they may be executed in a tyrannical manner.”¹²⁰

      Morris had consolidated the nationalist faction at the Convention. Until that point the nationalists had differed among themselves about democratic elections and the presidency. Some had supported the congressionally appointed president of the Virginia Plan, others wanted a president elected by the people. Now the nationalists would present a united front in favor of a popularly elected president.

       A FINAL COMPROMISE

      The nationalists were not a majority, however, and Morris and his allies moved cautiously. On July 19, Connecticut’s Oliver Ellsworth and Delaware’s Jacob Broom proposed that the president be appointed by electors. This was an ambiguous motion: 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