Part four: ELECTION LAW — Kingly Approach

Kingly approach addresses the role and election outcomes of a president, as debated by the Constitutional framers. The time was 1787. They had choices and options, although none were agreed or clear from the start. Part four of a series, with this and other posts raising issues worth considering in advance of the upcoming Presidential election.

DELEGATING RESPONSIBILITY

Prior blog posts discussed the lead-up to the Constitutional Convention of 1787 and provided context to the debate over the American system of government. Here is further context.

(And for more in depth discussion and a great read — upon which much of this blog finds its genesis — look to Ray Raphael’s book Mr. President: How and Why the Founders Created a Chief Executive (2012)).

Begin with the delegates.

Think of it within context. If you were a wealthy American landowner in the late eighteenth century, and held a position of prominence, you probably wanted to ensure your status remained unchanged.

Should your vote count more than someone else?

Can we really let the people decide our elected officials?

On these basic questions the delegates to the Constitutional Convention were either conflicted, or outright opposed.

THE DELEGATION ARGUMENT

As Roger Sherman, the representative from Connecticut proclaimed, “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.”

In today’s 2020 election (and even COVID-19), the same proclamations have been foretold: the people are liable to be misled.

On the flip side was Alexander Hamilton who touted the “genius of the people” in choosing the electorate.

Basically, even if a Constitutional Convention delegate agreed to a national government and an “executive branch” to that government, Hamilton still had open questions as to what should it look like, how much power it would have, and who would decide the person/persons for such an office.

The 1787 debate asked whether the delegates could get from an unworkable to a workable government, point A to point B.

A SUPER DELEGATE

Getting from point A to B was no easy task.

First, the delegates took the unusual move of calling for secrecy in their debates. Secrecy was unheard of then. It had been employed in the past, on occasion, such as at the Continental Congress, over a decade before. The concern then was a British spy — and personal retribution.

A decade later, in 1787, and as often argued today, the delegates wanted the freedom to speak freely.

Second, the delegates used England’s King George III as a counter-point to an executive.

They wanted no part of a monarchy, or kingly leader, yet had an issue. The position needed teeth. Someone needed to represent the country. The country needed international recognition. The delegates needed someone that would complement the needs of the States.

As to the position, George Washington was a good template, who presided over the convention yet spoke very little.

The quiver had other arrows for targeting. Length of the position (perpetual versus limited terms). Compensation. Making it a single versus multi-head position. Veto-powers. Relationship between other government branches.

Delegates even debated over what to call the position — monarchy vs. presidency vs. magistracy — as title can influence perception.

Indeed, fashioning a position from whole cloth is much different than stitching together a nearly complete garment, and, in this case, the emperor needed new clothes.

INDIRECT DELEGATION

Underlying all of these debate points was an overarching problem: how to choose the chosen one.

On this point, the debate continued for months.

Should the presidency be “independent” and not beholden to Congress (do they actually let the people decide).

Or should the people’s choice in representation have the right to choose the position (shouldn’t Congress decide).

With neither alternative unanimous (once again, the debate between state-rights versus federal-rights was at issue) an entirely different scheme of indirect representation was proposed through a complicated process of electors.

Thus, rather than a direct decision by the legislative branch or the people, a group of citizens from each state (the electors) would choose the executive branch head.

The theory was one of compromise. If the people cannot be trusted but need to be involved, at least they can indirectly participate in choosing the President — or at least that was the theory.

After months of debate, this indirect election made its way to the “Committee of Eleven”, a non-creative name for the committee charged with drafting the final document based upon the agreement of delegates.

CHOOSING THE DELEGATE

By no means was agreement unanimous when drafting began.

Instead, just as in today’s practice of drawing up contracts or agreements, the principals agreed to a general outline and assigned the drafting “laboring oar” to committee. The devil was in the details.

On Tuesday, September 4, 1788, the Committee of Eleven reported its findings.

Among those reported was the “Electoral College” (a name not found in the Constitution but so named years later) where each State would select “electors” equaling the total of its senators and congressmen, and the electors would choose the presidency. If no candidate achieved a majority of electoral votes, the matter was then thrown to Congress to choose.

The elector-plan was untested.

The elector-plan was a compromised solution.

After continued discussion, the elector-plan was retained in the final draft.

AN ELECTORAL COLLEGE DELEGATION

Of course, when it came to the Constitution’s final draft, objections remained — including those of Benjamin Franklin. Franklin recognized that the Constitution likely had faults but was necessary for the country:

“I confess that I do not entirely approve of this Constitution at present, but Sir, I am not sure I shall never approve it: . . . In these Sentiments, Sir, I agree to this Constitution, with all its Faults, if they are such; because I think a General Government necessary for us, and there is no Form of Government but what may be a Blessing to the People if well administered; . . . I doubt too whether any other Convention we can obtain, may be able to make a better Constitution”.

(from the notes of James Madison)

Franklin had a backhanded praise for the final document: “Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure that it is not the best.”

An electoral college, in all its faults and all its blessing, was to become the law of the land in choosing the President of the United States.

The next step was ratification, a process of sending the Constitution to the individual states for their debate. Only upon ratification would the Constitution become law.

By the end of July 1788, 11 of the 13 states ratified the new Constitution. The President would be selected in early 1789 and the new government in place by March, 1789.

How has the Electoral College worked in practice — see my next post, “An Electoral College Degree”.

Jacques C. Condon, Marquette 1999, is owner of Condon Law Firm, LLC, in Thiensville, handling civil litigation, business law, and problem-solving cases ranging on everything from sports and entertainment to local-level government action.