VAMPIRE WEEKEND – The Election Law Debate

Part Three, with this and other posts raising issues worth considering in advance of the upcoming Presidential election.

PART THREE: Vampire Weekend

In 2019, the band Vampire Weekend came out with the song Harmony Hall, with a chorus that resonates with persisting societal questions:

And the stone walls of Harmony Hall bear witness

Anybody with a worried mind could never forgive the sight

Of wicked snakes inside a place you thought was dignified

I don’t wanna live like this, but I don’t wanna die

It’s a catchy hymn – with lyrics that harken to thoughts of today while also (and excuse the shift in time) that leads me to think of the Constitutional Convention of 1787.

Did we have a Harmony Hall then?

Let’s debate. (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 like this: If you were a wealthy American landowner in the late eighteenth century, and held a position of prominence for some time, you probably wanted to ensure that, whatever government governed, your status remained unchanged.

Should not your vote count a little 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.

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.”

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, he 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.

A SUPER DELEGATE

Getting from point A to B was no easy task.

Anger wants a voice, voices wanna sing
Singers harmonize till they can’t hear anything
I thought that I was free from all that questionin’
But every time a problem ends, another one begins

So what happened in 1787. First, the delegates took the unusual move of calling for secrecy in their debates, something unheard of then and which continues to be a source of confounding issue even in today’s society; 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 despotic leader, yet needed the executive position to have some teeth that it would be recognized internationally and complement intra-national needs.

They had a good choice for the position in George Washington, who presided over the convention yet spoke very little.

And this quiver had other arrows. Length of the position (perpetual versus limited terms). Compensation. Making it a single versus multi-head position, veto-powers, etc.

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

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.

Within the halls of power lies a nervous heart that beats
Like a Young Pretender’s
Beneath these velvet gloves I hide
The shameful, crooked hands of a moneylender
‘Cause I still remember

On this point, the debate continued for months.

Should the presidency be “independent” and not beholden to Congress (that is, let the people decide)?

Or should the people’s choice in representation have the right to choose the position (that is, let 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 is how the theory went.

CHOOSING THE DELEGATE

After months of debate, this indirect election made its way to the “Committee of Eleven”, an aptly named committee that was charged with drafting the final document based upon the agreement of delegates.

By no means was agreement unanimous when the drafting began.

Instead, just as in today’s practice of drawing up contracts or agreement, 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, 1888, 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:

“I confess that I do not entirely approve of this Constitution at present, but Sir, I am not sure I shall never approve it: . . . I doubt too whether any other Convention we can obtain, may be able to make a better Constitution.”

(from the notes of James Madison)

Perhaps this is not the most glowing praise, but it was Franklin’s conclusion: “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.

And from there, the rest is history. 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.

So the question is will be remember the debate in the years that followed. Harmony Hall opened its first stanza with a similar question:

We took a vow in summertime
Now we find ourselves in late December
I believe that New Year’s Eve
Will be the perfect time for their great surrender
But they don’t remember

And of course that becomes my next post, “Electoral College Degree”, found here:  https://www.condon-law.com/electoral-colleg…ction-law-debate/ ‎

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.