The Once and Future King. F. H. Buckley

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 cases make a clean sweep of the presidency and both houses of Congress.

      Few, if any, delegates thought that, by adopting Article II, they were voting for the popular election of the president. And yet, for the minority of democrats at the Convention, this was as close as they would come. That was how Dickinson remembered things in 1802, fifteen years later. He recalled that he came late to the Committee on Unfinished Parts one morning and found the other members on their feet, about to leave. As a courtesy, they read their draft plan to him, which again featured a president appointed by the legislature. Dickinson remonstrated with the other committee members. “The Powers which we had agreed to vest in the President, were so many and so great, that I did not think, the people would be willing to deposit them with him, unless they themselves would be more immediately concerned in his Election.”¹⁴⁸ The work of the entire Convention would be lost, and the country would revert to the wholly unsuitable Articles of Confederation, with little chance of a successful revision. He recalled what happened next.

       Having thus expressed my sentiments, Gouverneur Morris immediately said—“Come, Gentlemen, let us sit down again, and converse further on this subject.” We then all sat down, and after some conference, James Maddison took a Pen and Paper, and sketched a Mode for Electing the President agreeable to the present provision. To this we assented and reported accordingly. ¹⁴⁹

      Throughout their deliberations, the delegates were well aware that whatever they proposed would count for nothing if it did not commend itself to the voters. George Mason observed that “notwithstanding the oppressions & injustice experienced amongst us from democracy; the genius of the people is in favor of it, and the genius of the people must be consulted.”¹⁵⁰ More than anyone, Dickinson was sensitive to the need for a constitution that the people would support. “When this plan goes forth,” he told the delegates, “it will be attacked by the popular leaders. Aristocracy will be its watchword: the Shibboleth among its adversaries.”¹⁵¹ The only successful method of conferring such powers on a single individual would be if he were a man of the people.

      During the Convention, Dickinson was the great compromiser. He was the first to propose that the Senate be elected by state legislatures, and more than anyone voiced the moderate Federalist position that carried the day. And it was he, plausibly, who brokered the compromise that gave us Article II.¹⁵² There is of course the possibility that his memory was faulty. Fifteen years after the fact, he recalled insisting at the Convention that the president would entirely owe his election to the will of the people. There would be electors, but they would be mere ciphers. “There was no Cloud interposed between [the president] and the people.”¹⁵³ But in 1788, just a year after the Convention had concluded, he had argued that electors would exercise an independent discretion, and this in The Letters of Fabius, written to persuade voters to support the Constitution. Here the Fabian conservative underlined that, while the power of the people pervades the Constitution, the people do not elect the president.

       This president is to be chosen, not by the people at large, because it may not be possible, that all the freemen of the empire should always have the necessary information, for directing their choice of such an officer. . . . ¹⁵⁴

      The electors might throw away their votes on an unworthy candidate, but they might also, “justly revering the duties of their office, dedicate their votes to the best interests of their country.”¹⁵⁵

      If there was a pure democrat at the Convention, that honor belongs rather to James Wilson. Wilson was the first to propose the popular election of the president, and his persistent appeals to democratic principles and political realities must have had an influence on other delegates. He believed that the legitimacy of government derived from the mutual consent of free men, and from the theory of a sovereign people he derived the right of popular sovereignty.¹⁵⁶ Defending the Constitution before the Pennsylvania ratifying convention, he asserted that in principle the new government was entirely democratic,¹⁵⁷ and that the choice of president “is brought as nearly home to the people as is practicable.”¹⁵⁸ If Wilson’s ideas did not succeed in 1787, they in time came to define the fundamental principles of American constitutionalism.

      And then there was the wily Gouverneur Morris, who saw democracy as a threat to republican government, but who nevertheless supported a popularly elected president as a bulwark against populist and democratic state governments. Like Hamilton, he was above all concerned to promote American commerce, which he saw as a source of political stability as well as wealth. “Take away commerce, and the democracy will triumph.”¹⁵⁹ And what commerce needed was a strong national government, with an elected president at its head. He it was who cleverly turned that man of theory, James Madison, supplying him with a convenient new theory of separationism that permitted him to abandon inconvenient old filtration theories, and who thus persuaded the nationalist Virginian delegates to abandon the idea of a congressional appointment of the president. Without this, we today would have a form of parliamentary government in the United States.

      That leaves Madison. Though he came to be called the “Father of the Constitution,” this was not a sobriquet earned at the Convention, where he often dug in his heels to defend losing propositions. Nor did the final document bear the imprint of his cherished ideas. He had wanted a president appointed by Congress; a Senate appointed by the House of Representatives; seats in the Senate allocated on the basis of population; a congressional veto over all state laws; and a Council of Revision, composed of the executive and judicial branches, with authority to veto congressional