Mr. President (17 page)

A decade earlier, Morris had served on the committee that drafted New York’s first state constitution. There, he succeeded in getting the committee to approve a strong executive office complete with appointive and veto powers, but the committee’s report was then overturned by the convention, which created a council of appointments and a council of revisions to water down the governor’s powers. Now Morris would once again try to strengthen an executive office within a committee, and this time, with kingly abuses and the hated royal governorships more distant in memory, he might have a better chance of securing approval for a committee report that gave the executive greater authority.

The Committee of Eleven set to work in the Library Room of the State House on Saturday morning, September 1. We have no record of the committee’s deliberations, only a few anecdotal recollections. Fifteen years after the fact, Delaware’s representative John Dickinson placed himself at the center of the action. Entering a committee session midway, Dickinson wrote to a friend, he delivered a speech denouncing legislative selection of the president. In his telling, Dickinson seems to imply his speech had a strong impact, swaying Gouverneur Morris and others to his position, but that is highly implausible, since Morris needed no convincing. The letter does admit an alternate interpretation, however, that hints at Morris’s leadership role within the committee. “Having thus expressed my sentiments,” Dickinson concluded, “Governieur 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 out a mode for electing the President agreeable to the present provision. To this we assented and reported accordingly.”
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Neither Morris, Madison, nor Dickinson was elected to preside over the committee, a position that called for a delegate less overbearing. That role was filled instead by the Honorable David Brearly, chief justice of the New Jersey Supreme Court, who gave the committee an air of objectivity but was a known opponent of legislative selection. In addition to Morris and Brearly, several other committee members had evidenced opposition to legislative selection or had supported an alternate
plan. One week earlier Daniel Carroll had joined Wilson in moving for popular elections and then seconded Morris’s motion in favor of electors. James Madison, Rufus King, and Pierce Butler had voiced their preference for electors back in July, when Morris staged his major assault on legislative selection. John Dickinson had signaled mixed messages in his two-part solution: first, “the people of each State chuse its best Citizen,” and then, “out of the thirteen names thus selected, an Executive Magistrate may be chosen either by the National Legislature, or by electors appointed by it.” Hugh Williamson was also on the fence, first opposing special electors, but then working on the details of the elector plan that briefly held sway in late July. Of the remaining three committee members only Roger Sherman was a firm proponent of legislative selection. The other two, Nicholas Gilman and Abraham Baldwin, left no record of their inclinations on this matter.

This committee, considering its composition, was primed to oppose legislative selection, but it needed to come up with an alternative that would not only satisfy a majority of its own members but also hold up on the convention floor. That would not be easy. If an alternate plan ran afoul of a particular interest group, that group could make matters difficult in the floor debates, and delegates seeking the easiest way out would then retreat to legislative selection, as they had done every other time the issue was raised. The committee’s “solution,” then, must be some sort of compromise.

We do not know how the committee devised its final plan, but by examining the problems they needed to overcome, the prior positions taken by the committee members, the voting records of the states they represented, and the eventual outcome, we can get some sense of how this critical chapter in the creation of the presidency played out behind two sets of closed doors, both the committee’s and the convention’s.

With popular election of the president off the table, the only available option was some scheme involving intermediate electors. Clearly, these would be chosen in their separate states, but wouldn’t electors then be prone to vote for a local favorite son? If so, numerous candidates would garner votes, and unless there were some provision for a runoff between leading contenders, a president could be chosen with but a small fraction of the votes, and these might all come from one state or region.

Further, the number of electors would have to be distributed among
the states, and this raised a very familiar problem: Should allocation be by population, or should each state get an equal share? The convention had settled a nearly identical matter once before with its so-called Great Compromise; now the Committee of Eleven would have to confront it again, this time with respect to the presidency.

Finally, how could electors be prevented from engaging in “intrigue” and “cabal,” the alleged evil of legislative selection? Why would this duplicate Congress be better suited to its purpose than the existing one?

On Tuesday, September 4, David Brearly reported the committee’s bold findings to the convention. No longer would the president be chosen by a joint ballot of Congress, as previously determined; instead, he would be selected by a complicated scheme that added more than three hundred words to the working draft. Here’s how the new system worked. Each state was entitled to a number of electors equaling the total of its congressmen and senators, a compromise allocation that replicated the joint balloting by Congress. The manner of selecting electors was left to the state legislatures, which were thereby granted a role in choosing the president. To avoid intrigue and cabal, electors were to meet simultaneously in their separate states. To offset the favorite-son temptation, each elector was to vote for two men, including at least one from another state. The results would then be sent to the Senate, and the president of that body would tabulate the returns. The candidate with the most votes would be president and the runner-up vice president, an office that made its first appearance in the Committee of Eleven’s report, three months and a week into the convention’s proceedings.

If no candidate appeared on the majority of the electors’ ballots, the Senate would choose the president from among the top five vote getters. Although this seemed to contradict the basic premise of electors—to make the executive independent of the legislature—proponents of the new system could argue that all five finalists had been vetted by the electors. The runoff in Congress both solved the problem of a minority president and placated Sherman, an unyielding partisan for the legislative branch, and perhaps Dickinson, whose own scheme allowed Congress to judge among finalists. Allowing the Senate instead of the House to make the final choice was a clear victory for small states, offsetting the advantage of large states in selecting the five leading contenders.
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Such was the plan, a composite geared to satisfy many interests.
True, it was untested. Delegates fond of citing historical precedents, often from classical times, could not do so here. Yet at first glance it seemed to address all the projected problems, and that was an achievement in its own right. Further, because the president would no longer be beholden to Congress for his selection, the path was opened for reeligibility, and this permitted shorter terms. Accordingly, the committee’s report changed the president’s time in office from seven years to four and allowed him to be reelected.

Brearly’s presentation appeared to take delegates on the floor by surprise. Bluntly, perhaps angrily, Edmund Randolph and Charles Pinckney “wished for a particular explanation & discussion of the reasons for changing the mode of electing the Executive.”

Gouverneur Morris answered immediately with “the reasons of the Committee and his own.” His arguments now, identical to those he had made several times before, focused on the problems with the old system: the need for executive independence, the danger of intrigue, the impossibility of reeligibility with legislative selection, and so on, all of which were addressed by the committee’s plan for electors. Strikingly absent in Morris’s defense of the report, though, was any mention of stage two, the runoff in the Senate. If legislative selection was really such a bad idea, why would they entrust a body of Congress with the decision now?

It was this part of the plan, not the previously controversial elector idea, that raised questions and prompted opposition. Charles Pinckney predicted that in most instances “the dispersion of the votes” among the electors “would leave the appointment with the Senate, and as the President’s reappointment will thus depend on the Senate he will be the mere creature of that body.” George Mason said he preferred “the Government of Prussia to one which will put all power into the hands of seven or eight men, and fix an Aristocracy worse than absolute monarchy.” Any sitting president, because he was known nationally, would be among the top five contestants, and if he could coddle favor with the Senate, he would be reelected time and again. So much for executive independence. So much for rotation in office. The president and the Senate, by teaming up, “will be able to subvert the Constitution.”

James Wilson, while joining the opposition, offered two practical suggestions: in order to limit congressional discretion, lower the number of finalists “to a smaller number than five,” and to lessen the danger of “cabal,” change the venue for a runoff from the Senate to the House.
The House, Wilson explained, was elected by the people every two years and would be “free from the influence & faction to which the permanence of the Senate may subject that branch.” These ideas should have appealed to Morris, who, with Wilson, had been pushing all along to protect the president from congressional control and who had probably opposed the Senate runoff within the Committee of Eleven, but Morris was in no position to undermine committee negotiations to which he had been a party, so instead of embracing Wilson’s improvements, he offered two uncharacteristically weak defenses. The Senate was better than the House “because fewer could then say to the President, you owe your appointment to us.” (Morris himself, had he not been the one to make this argument, would probably have countered that the Senate was
more
likely to engage in intrigue and cabal because of its small numbers.) And in any case, Morris added, too much attention was being paid to the second step of the process because electors in most cases would produce a clear winner.

Morris’s arguments failed to convince, and Wilson, among others, continued to challenge senatorial involvement. The new plan, Wilson argued, evidenced “a dangerous tendency to aristocracy; as throwing a dangerous power into the hands of the Senate. They will have in fact, the appointment of the President, and through his dependence on them, the virtual appointment to offices…. The President will not be the man of the people as he ought to be, but the minion of the Senate.” Wilson’s vociferous and continuing denunciation of the plan clearly annoyed his closest colleague. “Mr. Govr.
MORRIS
expressed his wonder at the observations of Mr. Wilson,” Madison wrote in his notes. Morris observed, correctly, that in several ways the committee’s plan granted the Senate less power, not more. Within the Committee of Eleven, he had engineered a shift of two highly significant powers—negotiating treaties and appointing ambassadors, Supreme Court justices, and other key officials—from the Senate to the president. (More on these shortly.) Very likely, small-state members of the committee had opposed these moves or at least were reluctant to embrace them, since the Senate, with its equal voting for each state, provided the strongest protection against large-state domination. Also likely, they managed to extract from Morris, as compensation, the Senate runoff, which would give more of a voice to small states. If Morris truly believed that a runoff would rarely be required, he would have thought this a worthwhile trade.
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Of the speakers on the convention floor, only Roger Sherman
acknowledged the particular interest of the small states’ position in the debate over the Senate runoff. The reason for choosing the Senate over the House was to counteract the large-state advantage in the allocation of electors, he stated openly. Further, when James Wilson suggested that the number of finalists should be fewer than five, Sherman parried that he “would sooner give up the plan.” He preferred “seven or thirteen,” the more the merrier in order to allow the Senate maximum discretion. Never an advocate of executive independence, Sherman had achieved a backdoor entry to congressional control and was reluctant to give it up. He did make one practical suggestion, and this too demonstrates how small-state interests were driving the debate. He would not be averse to moving the runoff from the Senate to the House if the House voted “by states,” one vote for each delegation.

Sherman’s new idea did not take hold when he first mentioned it. Large states opposed it, and so did slave states, which enjoyed not merely proportional but disproportional representation in the House because each slave counted as three-fifths of a person and therefore boosted the number of slave-state representatives. Small states and large, slave states and free—hadn’t the convention resolved these troublesome differences? Not exactly. The Great Compromise determined the differing compositions of the House and the Senate, but now proponents of each body wrangled over who would have the final say in determining the president, should the electors’ voting prove inconclusive.

Only the late hour and the delegates’ collective desire to be done with the matter prevented the debate from extending beyond its third day. Finally, Hugh Williamson of North Carolina, a harsh critic of the Senate with its equal-state voting, conceded the issue. The final choice of the president “should be made by the Legislature [the House], voting
by States
and not
per capita
,” Williamson stated. With Williamson’s support, Sherman’s motion to that effect passed easily, with only one state dissenting.