The Once and Future King. F. H. Buckley

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 Article II. It was this or nothing.¹³⁷

       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