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THE AMERICAN PRESIDENT

We are not indeed constituting a British Government, but a more dangerous monarchy, an elective one.

—GEORGE MASON

The delegates who met in Philadelphia in the summer of 1787 drafted Article II of the Constitution, which as amended governs modern presidential elections. What they had in mind was a different form of government than our present one, with a weaker separation of powers between the executive and legislative branches and with very different ideas about presidential elections. If one examines what the delegates said, as Lincoln did in his 1860 Cooper Union speech, one quickly discovers that separationism was not the principal theme of the Philadelphia Convention, and that the delegates very nearly adopted a system not unlike the parliamentary regimes of Great Britain and Canada.

The delegates were divided between coalitions of nationalists and states’-rights supporters, and what they finally agreed on was a compromise, with something for everyone. As the nationalists had wanted, the new Constitution would be much more centralized than the Articles of Confederation that had governed the country from 1781 to 1789. The states’-rights delegates won most of the other points, however, and the Constitution would be much more decentralized than the nationalists had proposed. States would appoint senators, who would serve at the heart of the federal government, the better to resist its encroachments on states’ rights; state legislatures would determine the method by which the president would be appointed, and in the republic’s early years most states simply picked presidential electors themselves. The delegates also expected that the choice of president would generally fall to the House of Representatives, with each state delegation getting one vote. Such a system could and did give rise to sectional conflict, with states disagreeing among themselves over slavery and tariffs. What one wouldn’t have expected to see was the deadlock within the federal system apparent today. People today might support the principle of separation of powers for a variety of reasons, but fidelity to the intentions of the Framers isn’t one of them.

Getting the history right matters to originalists who take the intent of the delegates as the touchstone of constitutional interpretation.¹ When confronted with a constitutional problem, a growing number of federal judges have begun to look for guidance from the Framers. Their Constitution should be our Constitution, they say. Originalism remains controversial, however, and among those who reject it, some assert that it is impossible to derive a single (or even any) meaning from the Framers’ deliberations, given the fractious nature of the debates, the sharp conflicts among the various coalitions, and the many times the delegates changed their minds. It is at times indeed difficult to say what they meant. But it is not impossible, as I show here; and sometimes it’s not difficult at all.

Besides, the debates are so fascinating—so much the leading documents of American government—that they more than repay the effort to study them. They have the high drama of an extended argument among an extraordinary group of politically astute and educated leaders who did not know what the outcome of the debate would be. Would a unified country emerge from the Convention? Would the country fall apart, divided into separate sections, or even return to Britain? Would the American Revolution itself be undone? There are other documents from the Founding era—the Federalist Papers, the debates in state conventions held to ratify the new Constitution—but these are very much of secondary interest. The Federalist Papers were seldom read outside of New York; the principal essays were written by two people, James Madison and Alexander Hamilton, who had not gotten the constitution they wanted but who accepted it as better than nothing. Nor do the ratifying conventions provide great guidance. What the Framers had proposed at their Convention was a take-it-or-leave-it constitution that the ratifying conventions could only adopt or reject, without amendments. And since rejecting it would be so devastating, that was not on the cards.

THE CONVENTION

The delegates who gathered in Philadelphia were, in the popular imagination, a set of brilliant political philosophers who produced what a hundred years later Gladstone called “the most wonderful work ever struck off by the brain and purpose of man.”² For the British prime minister, the delegates were supreme political theorists who produced a compelling system of government to rival that of Westminster. While taking a rather more sober view of things, many modern accounts of the Philadelphia Convention emphasize the high theory of republican government. But theorists among the delegates, people such as Madison and Hamilton, were few in number; and when the Convention was over both men left Philadelphia less than happy with the result. It was better than the alternative of the Articles of Confederation, but was nevertheless a missed opportunity.

The Constitution was more the work of lesser-known men who possessed a larger fund of practical wisdom and, compared to Madison, a much greater ability to compromise. And compromise was what was needed, for there was nothing like a consensus about the form the government would take. In particular, there was no agreement about the scope of executive power. Pennsylvania’s James Wilson remarked, “This subject has greatly divided the House, and will also divide people out of doors. It is in truth the most difficult of all on which we have had to decide.”³

The delegates sought to create something entirely new, a charter for a republican government to be formed from states loosely united under the Articles of Confederation. For models they had nothing wholly serviceable. They prized the virtues they saw in the ancient world, but saw a hodgepodge of confusing institutions when they examined the constitutions of republican Greece and Rome. They admired the constitution of Great Britain, with which they were more familiar, but had fought a revolution to replace it; and most thought it ill-suited for what they called the genius of America. They had the Articles of Confederation, which provided for what passed as a central government; but these had proved unsatisfactory, and the purpose of the Convention was to correct their defects. Finally, they had the constitutions of the states, most of which were reformed during the Revolution; but they were of limited assistance in designing a constitution for a compound republic composed of all the states.

What nearly all of the delegates did know was that they had come to the end of the line with the Articles of Confederation. These had created a “firm league of friendship” among sovereign, free, and independent states, with the thinnest of central governments. Congress could not levy taxes directly on the people, nor could it compel the states to pay their share of national expenses. It could issue paper currency—which rapidly proved almost worthless, giving us the expression “not worth a Continental.” Europe today is more of a country than America was under the Articles.

At their Convention, the delegates complained that government under the Articles had broken down. Important decisions were left unmade, and it was increasingly difficult to assemble a quorum in Congress. Whatever government might exist, said Alexander Hamilton, it was “dissolving or already dissolved.”⁴ At a critical moment, when the delegates seemed hopelessly divided, the country’s leading deist, Benjamin Franklin, suggested that they appoint a chaplain and pray for guidance.⁵ Had the Convention adjourned at that point, the country might easily have broken apart.⁶ Its fate, recalled Gouverneur Morris, hung by a hair.⁷

It was also difficult to raise funds for investment projects because the states had treated creditors shabbily, and the country was in a depression. “In every point of view,” wrote Madison in 1785, “the trade of this Country is in a deplorable Condition.”⁸ Perhaps things were not quite so desperate as that,⁹ but what the delegates saw when they looked about were states with devalued currencies and massive deficits. So deep was the crisis, so profound the financial problems, and so great the unwillingness of politicians to deal with them, that the economic difficulties were every bit as bad as those facing America today.

The problem, the Framers thought, came from the mercenary new men who now inhabited the statehouses in America. A good part of the colonial elite, especially from the northern states, had been exiled by the Revolution; many of those who were left served as delegates at the Philadelphia Convention or in the Continental Congress in New York. That left what the delegates saw as a second string of ill-educated populists to serve in the state legislatures.¹⁰ What would be needed, some thought, was a strong national government to trump them and correct these ills.

Very early in the Convention the delegates made several procedural decisions that importantly affected the outcome. On May 25, the first day, they unanimously elected Washington as its president, and appointed Virginia’s George Wythe, America’s first law professor, to chair a committee to draft the rules of procedure. Adopted on May 28, the rules impressed upon the delegates the solemnity of their undertaking. A delegate wishing to speak was asked to stand and address the president; and while one delegate was speaking the other delegates were not to read a book or speak to each other. When the meeting was over, the delegates were to stand until the president left the room.

Crucially, the delegates agreed that votes would be taken by state, with a majority of states deciding an issue, and a majority of delegates within each state deciding how the state would vote. A quorum was set at seven states, so that four states might in theory decide an issue. Nationalists from the relatively populous Pennsylvania delegation objected to giving an equal voice to small-state delegations, but were persuaded by the Virginians that this was the only way to get everyone on board.¹¹ After this, many of the most contentious issues at the Convention were foreordained. Because small states outnumbered large states, states’ rights would be protected. And because issues were decided by majority vote, and not the unanimity that would have been needed to amend the Articles of Confederation, there was likely going to be a deal.

The delegates also decided to hold their deliberations in Committee of the Whole, which freed them from most parliamentary rules. This permitted them to return to subjects previously discussed, and undo prior resolutions. And so they came back again and again to the same question, changing their minds back and forth on how to select a president, and dropping long prepared speeches into the debates. They decided to keep their deliberations secret, and for the most part adhered to this. The only time Washington was heard to express anger was when he discovered that a set of Convention notes had been left on the floor for anyone to pick up. He kept silent about this until the end of the session, but then stood up and, like a stern headmaster, reminded everyone of the rule of confidentiality. “I know not whose paper it is,” he said, “but there it is” (throwing it down on the table), “let him who owns it take it.” Washington bowed, took up his hat, and strode from the room “with a dignity so severe that every Person seemed alarmed.”¹² No one had the courage to claim the notes.

To these procedural rules might be added a social convention that promoted amity and cooperation. Philadelphia was a smallish town of forty thousand people, and the delegates could not help but see each other socially at their homes and clubs. They might gather around the mulberry tree in Franklin’s yard, or dine at the India Queen inn, the Convention’s unofficial club, where many of them stayed. On Sundays they took trips together to visit Valley Forge or Bartram’s Garden. At their request, Washington might join them for dinner, to elevate the tone. Many of the delegates knew each other from past congresses, or from the Revolutionary Army. Those who had been strangers quickly fell in with each other to cut the deals that kept the Convention from falling apart.

THE DELEGATES

Virginia led the way in planning for the Convention. It appointed a delegation that included George Wythe, George Mason, James Madison, and George Washington. Mason was the author of the June 1776 Virginia Declaration of Rights, from which much of the Declaration of Independence had been cribbed. Washington was the Indispensible Man, without whom the Revolution would have failed. Having retired to Mount Vernon at a time when he might easily have assumed a dictatorship over the country, he was a world figure, regarded by his countrymen with awe.

Besides the prominent Virginians, the delegates included John Dickinson, Benjamin Franklin, Alexander Hamilton, Robert Morris, Gouverneur Morris, and James Wilson. When he learned their names, Jefferson described them as “demigods” in a letter to John Adams.¹³ They included sixteen lawyers, four judges, seven politicians, four planters, and two physicians.¹⁴ Twenty-nine of them had undergraduate degrees, including nine from Princeton, four each from Yale and William and Mary, and three each from Harvard and King’s College (Columbia). Three had attended college in Great Britain, at Oxford, St. Andrews, and Glasgow. Six had been trained at the Inns of Court in London.¹⁵ Most would have been seen as the natural aristocrats of American society, and half were on Mrs. John Jay’s dinner invitation list, which was the social register of the time.¹⁶

That said, some of the more prominent delegates took little part in the proceedings. Wythe’s wife took ill and died, and he left after a week. Franklin was 81 years old, and often had to be carried on a litter the three blocks from his home to the Convention, by prisoners from the local jail. His speeches were read for him, and he seldom spoke closely on an issue. As the Convention’s elder statesman, his primary concern was to smooth over disputes and produce compromises, and this he did most effectively; but since he rowed with muffled oars, most historians have discounted his contributions. Hamilton was absent for much of the Convention and did himself no favors by freely advancing his strong conservative views. He wanted a strong national government, loathed democracy, and saw little difference between it and the kind of republic the delegates were considering. It was “pork still, with a little change of the sauce,” New York’s Robert Yates heard him say.¹⁷

Many of the delegates are deservedly obscure today. Half of them failed to make a contribution to the discussion, and some absented themselves from Philadelphia for long periods. Forrest McDonald described a group of dirt farmers, religious crackpots, and impecunious bootlickers straggling into town to represent their states.¹⁸ “You may have been taught to respect the characters of the members of the late Convention,” said George Mason.

You may have supposed they were an assemblage of great men. There is nothing less true. From [New England] there were knaves and fools and from the states southward of Virginia they were a parcel of coxcombs and from the middle states office hunters not a few. ¹⁹

One delegate, it seems, sold information about the proceedings to British agents.²⁰

Fortunately, the politicians most opposed to tampering with the Articles stayed away from the Convention. Backwoods populists such as William Findley refused to travel to Philadelphia when told they wouldn’t be reimbursed for their expenses. Radical demagogues such as John Hancock and Patrick Henry also stayed home. Henry had been appointed a delegate but declined to travel to Philadelphia, saying “I smelt a rat.”²¹ Samuel Adams thought himself too old to travel and stayed in Boston, where he served as president of the state senate. More than any other state, Rhode Island had cheapened its currency to benefit debtors; and no one from that state showed up. An apologetic Rhode Islander told Washington that most of the state’s legislators were “licentious . . ., destitute of education, and many of them, Void of principle.”²²

THE VIRGINIA PLAN

As the delegates arrived in Philadelphia, one thing was clear to all of them, and most of all to those from Virginia: as the most populous state, the Old Dominion would play a leading role in the Convention. Virginia was the oldest overseas colony of Britain, and until the early 1780s laid claim to all the land from Kentucky to Manitoba. It supplied much of the revolutionary leadership and four of the first five presidents. Without Virginia, the American Revolution would have been an isolated revolt by Massachusetts hotheads, easily suppressed by Britain.

In addition, the impetus for the Convention had come from Virginia. Under the Articles of Confederation the national government lacked the power to regulate interstate commerce, and after the Revolution the states began to levy tariffs on each other’s goods. Virginians, including George Washington and George Mason, wanted to open the Potomac up to trade, but the river lay almost entirely within the borders of Maryland, and navigation rights were disputed between the two states. A trade agreement made sense, and delegates from the two states met in Alexandria in March 1785 to relax trade barriers (even though the Articles of Confederation prohibited interstate treaties of this kind).

The conference was so successful that, when it ended at Mount Vernon, the Virginia delegates proposed a further conference of all thirteen states. This was held in Annapolis in September 1785. John Dickinson from Delaware was chosen president; James Madison and Hamilton attended. Eight states stayed away, however, and five states was too small a quorum for a national agreement. A third conference would be needed, and was called for May 14, 1787, in Philadelphia. Hamilton drafted the Annapolis conference report. The delegates, he said, were unhappy with the “important defects” in the Articles of Confederation, which had rendered “the situation of the United States delicate and critical.” The Philadelphia Convention would be charged with remedying these defects, a task that would require “an exertion of the united virtue and wisdom of all the members of the Confederacy.”²³

The Virginians arrived in Philadelphia before any of the other out-of-state delegates. James Madison was there on May 5, and the rest of the Virginians arrived by May 17. A quorum of seven states was not in place until May 25. Had everyone arrived on time, the Convention would likely have begun cautiously; but having arrived early, the Virginians used the opportunity to steal a march on the other delegates. Madison later recalled that “on the arrival of the Virginia Deputies at Philada, it occurred to them that from the early and prominent part taken by that State in bringing about the Convention some initiative step might be expected from them.”²⁴ And so they met as a group for two to three hours a day to prepare a plan for a new constitution.²⁵

The first day of substantive business was May 29. The delegates arrived at the Assembly Room of the Pennsylvania State House (now Independence Hall), where eleven years before eight of them had signed the Declaration of Independence. Shuffling in, they took their places at Windsor chairs arranged by state in semicircles around a raised dais, before tables covered in green baize, in a room small enough that every delegate was visible and every ordinary conversation audible. The delegates looked about, at the room, at each other, with anxious surmise, knowing that everything for which they had struggled, as far back as the Stamp Act, had led to this place and this time, and that all their efforts might be for naught if they failed to reach an agreement.

At ten o’clock, the door was closed behind them by sentries who stood watch to ensure that none but the delegates could enter. Washington had been unanimously elected the president of the Convention, and he ascended the dais to open the session. James Madison took a seat next to him to take notes of the proceedings. Stately, plump Edmund Randolph, Virginia’s governor, stood up, and Washington nodded at him to speak. What Randolph would read came to be known as the Virginia Plan. It proposed scrapping the Articles of Confederation, and the debate over it dominated the Convention for its first six weeks.

Randolph was a member of one of Virginia’s most prominent families, and a second cousin of Thomas Jefferson. He was bluff and well-spoken, but seemed almost apologetic as he began to read off the resolutions the Virginians had prepared. The plan was not from Randolph’s pen, but principally from that of Madison, the man at Washington’s side, and Randolph did not wish to claim the credit for drafting it. But Madison was halting in speech and spoke so lowly that his voice was often lost. At five and a half feet, he was a full head shorter than George Washington. Clearly, he was not the man to present a plan for a wholly new constitution for the country.

Few of the other delegates were prepared for the Virginia Plan. When Congress had joined the call for the Convention, in February 1787, it proposed that the delegates meet “for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the states render the federal government adequate to the exigencies of Government and the preservation of the Union.”²⁶ This was a call to tinker with the Articles, nothing more. Some delegates argued that, since it exceeded the mandate from Congress, the Virginia Plan was out of order. As the Convention continued, bitter words were exchanged. Several delegates threatened to walk out in protest, and some indeed did so.

Nevertheless, the delegates continued talking. The prestige of the Virginia delegation, and the presence of Washington, made it difficult to ignore the Virginia Plan. It was also that which had sorely been lacking: a plan, a serious attempt to amend the defects of the Articles of Confederation, prepared by the thoughtful James Madison. And it was backed by a core of nationalists from Virginia and Pennsylvania, the two largest states.

Madison had outlined his thoughts about government in an essay entitled Vices of the Political System of the United States, written a month before the Convention began,²⁷ and the imprint of the essay can be seen throughout the Virginia Plan. The problem, he argued, was that government under the Articles was both too decentralized and too democratic. The ultimate authority rested with the states, and the decisions of Congress were little more than recommendations. In addition, state governments were excessively democratic, and the honest delegate too often “the dupe of a favorite leader, veiling his selfish views under the professions of public good, and varnishing his sophistical arguments with the glowing colours of popular eloquence.” Sadly, the voice of (ahem) “individuals of extended views, and of national pride” were silenced by the demagogues.

For an answer to these ills, Madison borrowed two ideas from David Hume, whom he had studied at Princeton.²⁸ Hume had proposed, in a 1754 essay on the Idea of a Perfect Commonwealth, a highly artificial scheme of government that began with a division of Great Britain and Ireland into one hundred counties, each with one hundred parishes, and built up from there with parish meetings, county-town assemblies, county magistrates, and senators. It would be difficult to imagine anything more at odds with Hume’s empiricism, with his belief that political arrangements were the product of messy historical quarrels that owed more to contingent conventions and accidental arrangements than to abstract reasoning; and one is permitted to wonder whether the essay was only half-serious, and meant in part as a satire on political theorizing—a possibility that surely would have escaped the humorless Madison.

And yet Hume’s essay was something more than a satire. He believed that some constitutions were better than others,²⁹ and that speculations about the best kind of constitution were “the most worthy curiosity of any the wit of man can possibly devise.” It would be foolish to propose radical changes to existing, benign constitutions, like that of Britain, he thought. But what if the opportunity to start afresh arose elsewhere, “either by a dissolution of some old government, or by the combination of men to form a new one, in some distant part of the world”? When Madison read this, he must have heard Hume speaking to him directly. The time had come to dissolve the old government, and the combination of delegates in distant Philadelphia now had the responsibility to devise a new one.

In his essay, Hume had suggested two principles of constitutional governance, both of which Madison thought admirably suited to America. The first was a theory of refinement, or filtration, of representatives, in which higher levels of representatives would be chosen by those at lower levels, rather than directly elected by the people. Ordinary voters would elect local representatives, who would then elect a higher level of representatives, and so on up the ladder. Madison adopted the filtration theory in his Vices essay, which envisaged “a process of elections” designed to ensure that the most senior places in government would be occupied by “the purest and noblest characters” in society. Such a system would “extract from the mass of the Society” those who “feel most strongly the proper motives to pursue the end of their appointment, and be most capable to devise the proper means of attaining it.” In the Convention he described this as a “policy of refining the popular appointments by successive filtrations.”³⁰

Hume offered a second thought on democracy that Madison seized on as well. The public good is more likely to be promoted in large republics, said Hume; and Madison saw this as an argument to transfer power from the states to the extended republic of a national American state. Hume had turned on its head an argument that Montesquieu had made in The Spirit of the Laws. Montesquieu believed that republics should be small in size, because he thought that powerful interest groups would promote their private ends in large states.³¹ Just the opposite, said Hume. Large republics are protected from “tumult and faction,” since the very size of the country would make it harder for factions or interest groups to unite in a common plan. “The parts are so distant and remote, that it is very difficult, either by intrigue, prejudice, or passion, to hurry them into any measures against the public interest.”³²

Madison had seen corrupt voters back in Orange County, Virginia, and experienced the turbulence of small-state politicians in the state’s House of Delegates. He expected something better from a national American government, and eagerly adopted Hume’s defense of extended republics. With Hume, he recognized that a well-organized state would seek to prevent a majority from oppressing a minority; and this, he thought, a large state could do more easily than a small one. Madison wrote in his essay that in an extended republic,

the Society becomes broken into a greater variety of interests, of pursuits, of passions, which check each other, whilst those who may feel a common sentiment have less opportunity of communication and concert. It may be inferred that the inconveniences of popular States contrary to the prevailing Theory, are in proportion not to the extent, but to the narrowness of their limits.

Madison had added a wrinkle to Hume’s theory. Hume had thought that a majoritarian faction could never assemble in a large state. Madison agreed with this, but said that it wasn’t the size of the state that prevented this; rather, it was the multiplicity of the factions, and their ability to check each other.³³

Madison dropped the extended republic theory into a speech he made to the Convention in answer to Connecticut’s Roger Sherman. As a states’-rights supporter, Sherman had wanted state legislatures, and not the voters, to choose members of the House of Representatives, and as a nationalist Madison opposed this. In a large nation, argued Madison, members of the lower house might safely be elected by the people; there is a danger of majoritarian oppression, but this is less likely in an extended republic.

The only remedy is to enlarge the sphere, & thereby divide the community into so great a number of interests & parties, that in the 1st place a majority will not be likely at the same moment to have a common interest separate from that of the whole or of the minority; and in the 2d place, that in case they shd have such an interest, they may not be so apt to unite in the pursuit of it. ³⁴

That gives us two methods of dealing with the problems of democracy—filtration and extended republics—and as political scientist E. E. Schattschneider noted, this might seem like one method too many.³⁵ If democracy is not to be feared in an extended republic, why should presidents and senators be filtered through appointment by elected representatives, and not directly elected by the people? This was a point that supporters of democracy would grasp in time, but Madison was not yet one of them.³⁶ Instead, he thought the two strategies would reinforce each other, and that both were necessary.

The Virginia Plan incorporated Madison’s filtration principle: the idea that superior men will reach the exalted seats of power when the upper legislative ranks are appointed by lower bodies, and not by the people. While providing for a formal separation of powers between the branches, the plan proposed that the legislature appoint the executive. The “first” or lower house, today’s House of Representatives, would be popularly elected, and would be “the grand depository of the democratic principle of the government,” according to George Mason. “It was, so to speak, to be our House of Commons.”³⁷ The second or higher branch, our Senate, would be coequal in power, but its members would be selected by the first branch, from a list of nominees provided by the state legislatures. Together, the two branches would elect the president, called the “national executive.” This was spelled out in the plan’s Resolution Seven:

Resolved that a National Executive be instituted; to be chosen by the National Legislature for the term of ___ years, to receive punctually at stated times, a fixed compensation for the services rendered, in which no increase or diminution shall be made so as to affect the Magistracy, existing at the time of increase or diminution, and to be ineligible a second time; and that besides a general authority to execute the National laws, it ought to enjoy the Executive rights vested in Congress by the Confederation. ³⁸

Had the Virginia Plan been adopted, America would have had an essentially parliamentary system. The crucial power would lie in the House of Representatives, which would appoint the members of the Senate, and which, together with the Senate, would appoint the president. A powerful lower house could be expected to appoint a president subservient to its wishes, not one likely to defy it.

Resolution Seven also would have limited the president to a single term. That might have seemed an uncontroversial fetter on the office, since term limits were a feature of the Virginia Constitution (which Madison, along with Mason, had drafted); and governors are still term-limited in Virginia. However, the restriction expressed a concern about presidential power, even beyond the filtration principle.

When compared to the Constitution that the delegates finally adopted, the Virginia Plan would have limited the president’s power in yet another way. The Constitution grants the president the power to veto bills for any or no reason, subject to an override by a two-thirds vote of Congress. In Resolution Eight of the Virginia Plan, however, the presidential veto power was shared with a quasi-judicial Council of Revision.

Resolved, that the Executive and a convenient number of the National Judiciary, ought to compose a council of revision with authority to examine every act of the National Legislature before it shall operate, & every act of a particular Legislature before a Negative thereon shall be final; and that the dissent of the said Council shall amount to a rejection, unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negatived by ___ of the members of each branch. ³⁹

The idea of a president sharing his veto power with members of the Supreme Court will seem strange to us.⁴⁰ It made sense to Madison, because he did not have a thick conception of executive power or of a separation of powers in which the president might routinely oppose the will of Congress. He did think the veto might be employed to strike down the debtor relief schemes he feared, “those unwise & unjust measures which constituted so great a portion of our calamities.”⁴¹ Nevertheless, the structure of the Virginia Plan would not lead one to expect this to happen very frequently, for the reasons Madison gave in his Vices essay. Pro-debtor factions would be weaker in an extended republic than in state governments, and the appointed Senate would wisely constrain immoderate measures from the House in an application of Madison’s filtration theory.

If Madison wanted judges on the Council of Revision, it was because he saw the veto more as a judicial than a political act, to be employed when the legislature overstepped its constitutional bounds. Maryland’s Luther Martin recognized that the courts would rule on the constitutionality of legislation,⁴² but the doctrine of judicial review lay in the future, and what Madison saw in its place was the Council of Revision.

Madison’s Council of Revision was not adopted. Instead, the delegates compromised on a full veto power, exercisable in any case of political disagreement, but one that a supermajority in Congress could override. Nevertheless, the president’s veto power was understood in constitutional terms for much of the nineteenth century. Madison gave an example of this in his last act before leaving the presidency, vetoing legislation for internal improvements because he thought the federal government’s commerce power did not include the power to build roads and canals.⁴³ Similarly, near the end of the century, Grover Cleveland vetoed a farm relief bill for which he said he could find no warrant in the Constitution.⁴⁴

In sum, the Virginia Plan would have created a chief executive very different from the one we know today. Appointed by Congress, the president would be its creature, charged with doing its will but seemingly with little discretion about how to do so. He would have a veto over legislative acts, but this would be shared with members of the bench, and for the most part limited to passing on the constitutionality of bills. The crucial power would be vested in the House of Representatives, Mason’s “House of Commons,” which would appoint the members of the Senate, and which, with the Senate, would appoint the president, who would thus be doubly insulated from the people. If anything, Madison’s president would have lacked the power of a modern prime minister, who typically dominates his party and Parliament.

The fear of executive misbehavior led some delegates to propose an extraordinary variation on the office: a three-man presidency. The Virginia Plan contemplated a single president, but Edmund Randolph argued that a troika could better represent what were then the three sections of the country: New England, the middle states, and the South. Besides, said Randolph, a single executive is “the foetus of monarchy.”⁴⁵ Madison opposed the idea, and the Convention voted it down, but George Mason agreed with Randolph, as did another ten delegates.⁴⁶ At the end of the Convention Mason and Randolph refused to sign the Constitution, in part because they feared the power it vested in the executive.

WHY DID THEY WANT PARLIAMENTARY GOVERNMENT?

Presidential government is taken for granted by Americans. Why then were the Framers so taken with parliamentary government? The simplest answer is that this was the system they knew best. They had lived under a form of it during the colonial period, with royal governors and elected assemblies, and saw it from afar in Britain. And while they might have abhorred government from Westminster before the American Revolution, once it was over they fell over themselves in praise of the government of Westminster.

Conservatives such as Hamilton, Dickinson, and South Carolina’s Charles Pinckney confessed their admiration of Britain’s constitutional monarchy,⁴⁷ and even their opponents saw the virtues of the British system. “There is a natural inclination in mankind to Kingly Government,” observed Franklin.⁴⁸ Only a republican system of government would do for the United States, said Randolph; otherwise, he said, he might well be prepared to adopt the British system in America.⁴⁹ North Carolina’s Hugh Williamson saw an American monarchy as inevitable,⁵⁰ and some delegates, including Hamilton and Gouverneur Morris, might have welcomed this.⁵¹ Maryland’s John Mercer copied out a list of twenty delegates who, he laughingly said, favored an American monarchy. Mercer was an opinionated 28-year-old who saw monarchists under his bed, but some delegates took him seriously.⁵² As historian Gordon Wood noted, monarchy prevailed almost everywhere else, and “we shall never understand events of the 1790s until we take seriously, as contemporaries did, the possibility of some sort of monarchy developing in America.”⁵³

The magnetic pull of parliamentary government may be seen in the constitutions the states adopted immediately after the Revolution. Save for Connecticut, all of the states reformed their governments, and in nearly every case the new constitution featured a governor chosen by the legislature. The most influential state constitution, and the first one to be adopted, was that of Virginia; it provided for a governor, or chief magistrate, to be chosen annually by joint ballot of both houses of the legislature.⁵⁴ Only in New York, Massachusetts, and New Hampshire were governors elected directly by the people.

Many constitutions, like Virginia’s, formally provided that the legislative, executive, and judicial powers were to be separate, and that legislators could not serve as governors. This, however, was the thinnest kind of separation of powers, one that scarcely deserves its name. In every state but New York the legislature appointed an executive council that could countermand the governor’s decisions. “The Executives of the States,” noted Madison, “are in general little more than Cyphers; the legislatures omnipotent.”⁵⁵ For the Framers, then, parliamentary government was the default position.

Some of the Framers wanted a parliamentary government for a reason that seems very dated today. If a president were to be popularly elected, would voters know much about a candidate from outside their state? “Of the affairs of Georgia,” said Madison, “I know as little as those of Kamskatska.”⁵⁶ That was an argument for a president appointed by Congress, said Sherman, since legislators would know the presidential candidates better than the voters would.⁵⁷ All this would soon change, and indeed was changing, with advances in transportation and communication technology.⁵⁸ On August 22, 1787, inventor John Fitch made the first successful trial of a steamboat on the Delaware River, in the presence of several delegates to the Convention. Nevertheless, the delegates did not foresee the rapidity of such change, or the rise of national parties, which would shortly address the problem of voter ignorance.

There were two more important reasons why many delegates opposed a democratically elected president: First, they were fearful of democracy; and second, they were apprehensive of presidential power. Put the two together, in the form of a democratically elected president, and one had the fetus of monarchy of which Randolph had complained.

Nearly all of the delegates mistrusted democracy, and given a choice between the popular election of the president and a congressional appointment, they preferred the latter. Like Madison, they liked the idea of a selection filtered by an intermediate level of elected officials. The defects of the Articles period could be traced, they thought, to an “excess of democracy,”⁵⁹ with its “turbulence and follies.”⁶⁰

Because they kept their deliberations secret, it was easier for the delegates to express a contempt for democracy that at times made them seem like French aristocrats peering through their lorgnettes at la canaille. Elbridge Gerry, fresh from Shays’s Rebellion in western Massachusetts, observed that “the worst men get into the Legislature. Several members of that body have lately been convicted of infamous crimes. Men of indigence, ignorance and baseness, spare no pains, however dirty to carry their point against men who are superior to the artifices practiced.”⁶¹ Roger Sherman agreed. “The people . . . immediately should have as little to do as may be about the Government. They want information and are constantly liable to be misled.”⁶² For his part, George Mason thought that “it would be as unnatural to refer the choice of a proper character for chief Magistrate to the people, as it would, to refer a trial of colours to a blind man.”⁶³

Madison had spent the previous winter boning up on the republics of antiquity, a study that did nothing to reassure him about democracy. He feared “the transient impressions into which [the people] might be led,” and wondered whether they might propose land reform schemes like those of the Gracchi in Republican Rome.

An increase of population will of necessity increase the proportion of those who will labour under all the hardships of life, & secretly sigh for a more equal distribution of its blessings. These may in time outnumber those who are placed above the feelings of indigence. According to the equal laws of suffrage, the power will slide into the hands of the former. No agrarian attempts have yet been made in this Country, but symptoms of a leveling spirit, as we have understood, have sufficiently appeared in a certain quarters to give notice of the future danger. ⁶⁴

What were they thinking? we are tempted to ask. Without the support of the ordinary people they now denigrated, America would not have won its independence a few years before. But the patriot’s passionate attachment to absolute liberty during the American Revolution had led to lawlessness and violence, and while this was condoned (and even encouraged when directed against Loyalists), it was quite another thing when the mob turned its attention to the new American governments.

Serious rioting broke out in many of the major American cities in the 1780s. The Revolution had clothed public protests in a mantle of legitimacy, and state authorities, who had relied on extralegal groups during the Revolution, were reluctant to resist the same groups when the war was over.⁶⁵ Knowing this, the delegates feared that what popular suffrage would produce would mirror the Massachusetts election of May 1787, when conservative Governor James Bowdoin had lost his bid for reelection because he had called up the militia to suppress Shays’s Rebellion. Madison told the delegates that “the insurrections in Massachusetts admonished all the States of the danger to which they were exposed.”⁶⁶

In the midst of their deliberations, the delegates were treated to a vivid example of mob rule when an elderly woman was stoned not five blocks from their meeting place. Know as the “Widow Korbmacher,” she had first been set upon on May 5, before the delegates arrived, by a mob suspecting her to be a witch. On July 10 the crowd struck again, shouting insults, carrying her through the streets, and pelting her with stones. She died of her injuries on July 18,⁶⁷ the day after the delegates voted 9 to 1 against the popular election of the president.⁶⁸

Some delegates knew mob violence at first hand. In 1779, lawyer James Wilson had narrowly escaped from a gang of rioters after he successfully defended Loyalists whose property had been seized. The mob had been whipped up by Pennsylvania’s populist governor, who himself lived in a confiscated Loyalist house. Wilson barricaded himself in his home, two blocks from Independence Hall, with twenty or so of his colleagues (including two delegates to the future Philadelphia Convention, Robert Morris and Thomas Mifflin). The mob was in the process of aiming a cannon at the house when it was dispersed by cavalry led by the military commandant of Philadelphia, Benedict Arnold. Six people died in the affair, but the rioters were afterward pardoned. Wilson had to flee Philadelphia for a few weeks, and his house came to be called “Fort Wilson.”⁶⁹

The fear of democracy was especially pronounced when the subject of a popularly elected president arose. Roger Sherman thought that “an Independence of the Executive on the supreme Legislative, was . . . the very essence of tyranny.”⁷⁰ Similarly, George Mason argued that “if strong and extensive powers are vested in the Executive, and that Executive consists only of one person, the government will of course degenerate (for I will call it a degeneracy) into a monarchy.”⁷¹ What delegates feared was that a president elected by the people would threaten liberty more than would a hereditary monarch who lacked the legitimacy conferred by a popular election. “We are not indeed constituting a British Government,” said Mason, “but a more dangerous monarchy, an elective one.”⁷²

Sherman wanted Congress to impose severe limits on a president’s authority. The president, he said, should be nothing more than the legislature’s agent. His job would be to execute the laws passed by the legislature, without exercising much (or any) discretion about how this was done.⁷³ This was a theory of separation of powers, though not one now familiar 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 state legislatures could be expected to choose more wisely than voters in a popular election. Only Madison, still wedded to the Virginia Plan, spoke against this. The system of state legislatures appointing the Senate continued until 1913, when the Seventeenth Amendment instituted the popular election of senators. Dickinson had wanted to empower the states; by reversing his system of appointment, the Seventeenth Amendment is thought to have shifted power from the states to the federal government.⁹²

The small-state delegates pressed their advantage a week later, when William Paterson presented the New Jersey Plan to the delegates.⁹³ The Virginians had caucused behind the scenes to produce a plan that shocked the small-state delegates, who thought it would result in an excessively strong national government. In response, the small-state delegates had caucused privately too, to produce a rival scheme of government. The New Jersey Plan was a bombshell. It modified the Articles of Confederation, but unlike the Virginia Plan did not junk them. Congress would have a taxing power, but would continue as a unicameral house, with each state given a single vote. When Paterson introduced his plan, John Dickinson turned to Madison and said, “you see the consequence of pushing things too far.”⁹⁴ There were now two radically different plans on the floor, and the debate between them would consume the deliberations and passions of the delegates for the next month.

To resolve the crisis, on July 2 the delegates appointed a Committee of Eleven, with one member from each state in attendance at the time, to settle on a compromise. At Franklin’s suggestion, the committee devised the plan of representation now found in the Constitution: representation by population in the House of Representatives, and equal representation for states in the Senate. The delegates had previously agreed that state legislatures should appoint congressional senators; now they agreed that small states should have the same representation as large states in the Senate. Delegates from the larger states objected, but were outvoted on July 7;⁹⁵ on July 16, the Convention ratified the committee’s entire proposal.⁹⁶ This came to be called the Connecticut Compromise, but the label is misleading, for it was less a compromise than a defeat for nationalists from the large states.

The large-state delegates met the morning of July 17 to see whether their plans for a Senate appointed by the House of Representatives might be salvaged, but decided that the game was lost.⁹⁷ When the Framers convened that day, the small-state delegates returned to the attack, this time against another of Madison’s pet ideas, a congressional veto over state laws. On Madison’s extended republic theory, the national government would be less prone to factions and interest-group inefficiencies than state governments; the Virginia Plan’s Resolution Six would therefore have given Congress the power to “negative,” or veto, state laws that it thought contravened the Constitution.⁹⁸ The delegates had voted this down once, on June 8;⁹⁹ but lest any doubt remain, they rejected it again on July 17.¹⁰⁰

Until then there had been broad agreement that the president should be appointed by Congress. If anything, the New Jersey Plan tilted in the direction of parliamentary governance, since it reopened the question of whether there should be more than one president at a time, and would have permitted Congress to remove the president at the request of a majority of state governors.¹⁰¹ Now, however, the Pennsylvanians counterattacked; Gouverneur Morris moved that the president be elected by popular suffrage. But when it came to a vote, only Pennsylvania supported the resolution.¹⁰² Maryland’s Luther Martin then proposed that the president be chosen by electors appointed by state legislatures, but delegates were still wedded to appointment by Congress, and voted 8 to 2 against, with only Delaware and Maryland in favor.¹⁰³ The delegates finally voted unanimously for a congressionally appointed president.¹⁰⁴ Even the dissenters had given up, and everyone must have thought that the issue was at last settled.

That afternoon, on July 17, the delegates broke early. A group of them, led by Washington, visited Gray’s Ferry, where one could observe the exotic plants of Bartram’s Garden, drink tea, or fish in the Schuylkill.¹⁰⁵ The leafy walks may have prompted reflection about the office Washington soon would hold, for two days later, on July 19, the delegates suddenly reversed themselves. On a motion by Gouverneur Morris, they unanimously agreed to reconsider the method of installing a president.

GOUVERNEUR MORRIS—THE MAN OF THE CONVENTION

Morris was a representative of the rising merchant class and a member of the court party. He was as fearful of democracy as any delegate, but now he sought to persuade country party nationalists to support the democratic election of presidents. What Morris wanted was a president who, clothed with the authority conferred by a popular election, would strengthen the central government.¹⁰⁶ That was not an argument that would appeal to many delegates, however. Ingeniously, Morris argued that the lower classes needed a tribune of the people, and this could only be the president. Congress would come to represent the rich and powerful, and if it could appoint the president, “legislative tyranny” would ensue. What was needed was a separation of powers between the executive and legislative branches. “If the Legislature elect,” said Morris, “it will be the work of intrigue, of cabal, and of faction.”¹⁰⁷

Morris had cleverly sought to appeal to several constituencies among the delegates. The call for a tribune of the people would appeal to the pro-debtor crowd, who wanted a new Tribune Gracchus to redistribute wealth. Morris also sought to enlist the support of country party members with the buzzwords of intrigue and cabal. And the reference to congressional tyranny would appeal to states’-rights supporters, notably Elbridge Gerry, who had expressed fear of corrupt bargains if the legislature appointed the president.¹⁰⁸ Finally, Morris sought to appeal to that man of theory, James Madison, who Morris knew would hear echoes of Montesquieu in an argument for separation of powers.

The two men had known each other for some years. They did not overlap in the Continental Congress, but both were in Philadelphia in the early 1780s. For the first month of the Convention they saw little of each other. Though he was present at its start, Morris had left after a few days, not returning until July 2, when he wasted no time in making up for his absence by launching into a patronizing speech in favor of a Senate composed of American aristocrats.¹⁰⁹ In his brashness, he had failed to take the measure of the delegates, and Madison was especially annoyed. On July 11 he admonished Morris for continually insisting on the “political depravity of men, and the necessity of checking one vice and interest” against another.¹¹⁰ It wasn’t so much what Morris had said, however, as the way he had said it. Madison didn’t think men were angels, but Morris had spoken like a brassy New Yorker, and this had irritated the Virginian.

Morris was everything Madison was not. The New Yorker was tall, confident, ebullient, and witty. He had lost a leg, and his right arm was withered, but this scarcely slowed him down. By contrast, Madison was a hypochondriac who outlived every other member of the Convention. He was especially shy with women, while Morris enjoyed a remarkably successful career as a rake. While the story that Morris owed his peg leg to a jump from a window to escape a jealous husband is probably apocryphal, we do know something of his many affairs, thanks to his candid diaries and correspondence. The letters that Mme Chaumont wrote to him are too heated to be quoted, sniffed a prim Morris biographer.¹¹¹ More discreetly still, Morris’s granddaughter complained of the lady’s “ceaseless annoyances.”¹¹² With a touch of envy, a French diplomat described him as “sans moeurs, et, si l’on en croit ses ennemis, sans principes.”¹¹³

At the Convention Morris was the master of the strategic compromise, the adroit suggestion, the art of the deal. A Georgia delegate described him as:

one of those Genius’s in whom every species of talents combine to render him conspicuous and flourishing in public debate:—He winds through all the mazes of rhetoric, and throws around him such a glare that he charms, captivates, and leads away all the senses of all who hear him. ¹¹⁴

As for Madison, the Georgian recalled his scholarship, industry, sweet temper, and “great modesty.”¹¹⁵

This was a trying time for Madison. When he heard of the New Jersey Plan, he had felt “serious anxiety.”¹¹⁶ Before the Connecticut Compromise of July 16, he and the other delegates had feared that the Convention might end in failure, and tempers had run high. Within a 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 5, in roll call 359.¹³³

A 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 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 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 bills; and on every one of these, he was voted down. He was a member of the Committee on Unfinished Parts, but once Morris presented his plan for the election of presidents, Madison raised several objections that went nowhere. Madison was so frustrated at this point that he supported Mason’s call for an executive council, composed of members nominated by the states, to fetter the president’s authority.¹⁶⁰ By the very end of the Convention, Madison had reverted to his earlier opposition to a strong presidential system.

With Hamilton, Madison was the principal author of the Federalist Papers, which glossed over the battles in the Convention and passed silently over the objections the two of them had to the new Constitution (and with each other). Hamilton confessed his disappointment with the Constitution at the Convention, telling the delegates he would support it only because it was “better than nothing.”¹⁶¹ Madison too emerged from the Convention unhappy with the result. In a letter written on the same day that the delegates voted to adopt what has come down to us as Article II, Madison told Jefferson that “the plan . . . will neither effectually answer its national object, nor prevent the local mischiefs which everywhere excite disgust agst. the State Governments.”¹⁶² He had lost, and he knew it.

The Federalist Papers themselves seem to have had little effect on the ratification debates,¹⁶³ which were rather the work of the politicians in each state. Of these, Madison was a tireless worker. He had pushed for the Convention, secured Washington’s presence in Philadelphia, and provided the impetus to replace the Articles of Confederation with an ambitious Virginia Plan. In the Continental Congress that followed the Convention, he successfully argued that the Constitution be sent to state conventions for ratification; and at the Virginia ratifying convention, he stood up to antifederalists such as Mason and Patrick Henry. If he is the Father of the Constitution, however, this is one of those cases, not unknown in delivery rooms, where the child bears little resemblance to the father.

In the end, democrats won the day. The rickety machinery they devised for the election of presidents was a sealed car speeding through the first decades of the republic, darkened in obscurity on departure, but emerging in sunlight on arrival to transform American politics. Presidential electors came to be chosen by popular vote, not by state legislatures, and the electors became the mere ciphers that Dickinson assumed they were in 1802. Presidential candidates with national appeal arose, so that elections were not kicked over to the House of Representatives.

The president became the principal symbol of American democracy and equality, and the most effective counterpoise to state governments. Not only was he democratically elected, he was the only person so elected by the entire country. Even before the advent of democracy presidents had discovered the power of executive orders, and Jefferson had found that his republican principles did not require him to leave the Louisiana Purchase on the table.¹⁶⁴ Thereafter, in times of crisis, a Lincoln or Franklin Delano Roosevelt might emerge to defend or lead a unified county. With a legitimacy derived from both the Constitution and the democratic process, the president became the spokesman for the welfare of the nation as a whole. He might thus oppose the will of Congress, and in doing so strengthen the separation of powers.

Nevertheless, it is historically inaccurate to view the Constitution through a separationist prism. The delegates had sharply disagreed on the division of powers between the federal and state governments, and what they devised was a compromise between the highly decentralized Articles of Confederation and the Virginia Plan’s strong nationalism. They arrived at a method of choosing senators not to promote an abstract principle of separation of powers within the central government, but to give states a measure of control over the central government. As for the executive, states’-rights supporters were given a president selected by a method chosen by the states, and (or so they thought) the ultimate choice would be made by state delegations in the House of Representatives, with one vote per state. To adhere to the Framers’ understanding of the Constitution, the doctrine of separation of powers should thus be demoted from its position as a foundational principle of constitutional interpretation.