How the Electoral College Squelches Faction

Ever since the political establishment was rocked by Hillary Clinton’s loss in the 2016 presidential election, the Electoral College has been under renewed scrutiny. It has withstood the charge that it is undemocratic since this accusation was made by the Progressive historians Charles Beard and James Allen Smith early in the 20th century. But it may not withstand the intensifying criticism that is a relic of a Constitution deemed to be “pro-slavery.”

Today’s academics almost uniformly accept that the Constitution was “pro-slavery.” In this they follow the critique of the Constitution leveled by radical abolitionist William Lloyd Garrison in the early 1840s. While Garrison focused his criticism on four clauses (the Three-Fifths Clause, the Slave Trade Clause, the Fugitive Slave Clause, and the clause promising states federal assistance against insurrection), Garrison’s followers have extended his criticisms, and now contend that slavery was behind a dozen or more of the Constitution’s provisions, including the Electoral College.

One notable dissenter from the “Garrisonian critique” is Princeton historian Sean Wilentz. In his recent No Property in Man: Slavery and Antislavery at the Nation’s Founding, he contends that the Constitution and its framers were as much anti-slavery as pro-slavery. It was therefore surprising, given the thesis of his book, that in it he conceded to Garrison’s followers the argument that the Electoral College was “pro-slavery.” Even more surprising was that Wilentz recanted his agreement with them while his book was still hot off the presses. Recently he revised his own argument, writing in the New York Times, “The Electoral College Was Not a Pro-Slavery Ploy.” The Times did not allow this heterodox opinion to go unchallenged, however, and immediately published a rebuttal by Yale’s Akhil Reed Amar: “Actually, the Electoral College Was a Pro-Slavery Ploy.” Readers must be left wondering, who is right?

To answer, one must begin—unlike Amar and Wilentz—at the beginning. On the convention’s first full day, May 29, the delegates were introduced to a plan of government proposed by the Virginia delegation, largely based on the work of James Madison. It proposed a radical change in the form of government that united the states, replacing the confederation with a truly national government. This included a provision that “a national executive be instituted, to be chosen by the national legislature . . . to be ineligible a second time.” The term of office was left unstated.

Begin at the Beginning
The Convention proceeded through the Virginia Plan point by point. By June 1 they reached its provision for the creation of an executive, which they debated for nearly a week. Recalling their rule by the British monarchy, delegates were wary of executive power and sought to structure it carefully. After they explored concerns about modes of election (by direct popular vote, indirectly through electors, or by appointment of the national legislature), the term of office, the question of re-eligibility for office, and the seemingly archaic point of whether executive power should be vested in one person or in a committee of several, a loose consensus emerged. Executive power should be vested in a single person to be elected by the national legislature for a seven-year term, ineligible for re-election. (To be clear, this consensus, including election by the legislature, emerged before the notion of a “three-fifths compromise” had been introduced.)

This was one small point of consensus amidst an unstable mix of competing opinions and interests. On June 6, after the convention completed its first discussion of the Virginia Plan, two fault lines began to appear when South Carolina’s Charles Pinckney and John Rutledge moved “that the first branch of the National Legislature be elected by the State Legislatures, and not by the people.” This proposal broke open the floodgates for debate about what role the states would play in the proposed national government. Within a week William Patterson of New Jersey accused the nationalist Madison of “pushing things too far” and presented a purely federal plan. The New Jersey Plan failed, but Virginia’s plan was mortally wounded. Delegates were coming to understand that the new government would be partly national and partly federal.

Likewise, where the Virginia Plan had proposed that representation in the national legislature “be proportioned to the quotas of contribution, or to the number of free inhabitants,” the South Carolinians would insist on June 11 that “the States ought to have weight in the government in proportion to their wealth.” The idea of representation based on free inhabitants was a non-starter for the deep South. James Wilson (the nationalist and antislavery delegate from Pennsylvania) sought to avoid replaying debates from the Confederation Congress about whether or not slaves should be counted in calculating quotas of contribution, and he brought up the proposal (never ratified by the Congress) by which slaveholding states would be taxed on their number of free inhabitants, plus three-fifths of their slave populations. The introduction of the three-fifths ratio into the debate about representation and taxation was a concession by the convention that the union was divided, part slave and part free.

For a month the convention, riven by these profound differences, battled over issues related to representation in the national legislature before sealing the pivotal Connecticut Compromise on July 16. The new government would accept the equality of states in the Senate, and allow for Southern states to include three-fifths of their slave populations for the apportionment of representatives in the House. After this compromise, delegates returned to discussion of the executive to find their earlier consensus had broken apart. By July 19, the states accepted unanimously Gouverneur Morris’s proposal “to reconsider generally the constitution of the Executive.” Elbridge Gerry complained, “We seem to be entirely at a loss on this head,” and proposed delegating the details to a committee; this proposal was rejected. On July 26, Virginia’s George Mason moved the convention return to its consensus from early June: “that a National Executive be instituted, to consist of a single person, to be chosen by the National Legislature for the term of seven years, to be ineligible a second time….” It passed.

At this point the convention adjourned while a small committee produced a draft of the Constitution. Delegates re-convened on August 6, and the Committee of Detail’s report was read. Discussion of the executive did not occur until August 24, when it was again agreed that executive power should be vested in a single person. The proposal that the executive “be elected by ballot by the Legislature” raised objections, and four different modes of election were proposed and voted down. This inconclusive debate over the executive continued until August 31, when the delegates, exhausted, created one final committee (with a delegate from each state) to handle “such parts of the Constitution as have been postponed, and such parts of Reports as have not been acted on.” This committee created the Electoral College.

The Path to Error
With such a convoluted backstory to the debate over the executive and creation of the Electoral College, and with no records left behind by the committee that created it, how could scholars like Professors Amar or (once upon a time) Wilentz claim so unequivocally that it was “a pro-slavery ploy”? The answer, as we hinted, is that they begin looking at the convention from the middle and ignore its dynamics. They both cite the same fragmentary comment James Madison made on July 19, that if the executive were elected directly, Southern states “could have no influence in the election on the score of the Negroes.” Amar: “… Southerner James Madison explained why this was a political nonstarter: Slaves couldn’t vote, so the slaveholding South would basically lose every time in a national direct vote. But if slaves could somehow be counted in an indirect system, maybe at a discount (say, three-fifths), well, that might sell in the South. Thus were planted the early seeds of an Electoral College system.” Wilentz: “…the Virginia slaveholder James Madison—the most influential delegate at the convention—insisted that while direct popular election of the president was the ‘fittest’ system, it would hurt the South, whose population included nonvoting slaves.”

Frankly, it strains credulity to assert that Madison’s observation amounted to some sly, Svengali-like suggestion implanted in the minds of his fellow delegates, who either were blind to the ploy or eager to accept. To the contrary, in the wake of the Connecticut Compromise vote on July 16, which Madison bitterly resisted, he was at the nadir of his influence in the convention. More to the point, Madison’s comment, on which Amar and Wilentz placed so much importance, came as delegates reevaluated their earlier consensus on the executive in light of the pivotal Connecticut Compromise.

Revisiting the question of the executive’s re-eligibility for office, many endorsed reeligibility as a way of encouraging the executive to strive for re-election through meritorious service. The problem, though, was that if the executive was elected by the legislature, the re-election process would be susceptible to conspiracies or corruption. Rufus King ruled out election by the legislature; and though he thought “the people at large would choose wisely,” he worried about the “difficulty arising from the improbability of a general concurrence of the people in favor of any one man.” He thought appointment by electors chosen by the people “would be liable to fewest objections.” Wilson declared, “It seems to be the unanimous sense that the Executive should not be appointed by the Legislature, unless he be rendered ineligible a second time; he perceived with pleasure that the idea was gaining ground of an election, mediately or immediately, by the people.” With a growing consensus for re-eligibility, and against election by the legislature, the question was whether the people should elect the executive directly or through electors. Patterson proposed a compromise by which electors would be “chosen by the States in a ratio that would allow one elector to the smallest, and three to the largest, States.” Ellsworth suggested population levels to go along with this scheme.

Madison, prefacing his purportedly sinister statement, concurred that it was “essential” that the executive be appointed in a way that insured independence from the legislature, and he agreed with King and Wilson that election by the people was “the fittest in itself.” Madison then observed, as Amar and Wilentz note, “The right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election, on the score of the negroes.” But Amar and Wilentz refuse to allow Madison to finish his thought. He concluded, “The substitution of Electors [for a direct popular vote] obviated this difficulty, and seemed, on the whole to be liable to fewest objections.” Selectively reading the convention’s debates, and selectively editing Madison, Amar and Wilentz wholly inverted Madison’s intent, which was to avoid the thorny issue of representation of Southern slaves.

Garrisonian Compass is Wrong
Why do scholars of the caliber of Amar and Wilentz begin to examine the convention and even pull their key quotation from James Madison from the middle? It is because they remain in the thrall of the Constitution’s most profound and influential critic, William Lloyd Garrison. Garrison became convinced that the Constitution was “pro-slavery” after the Supreme Court—led by Chief Justice Roger Taney—effectively had adopted this this view in the infamous 1842 decision, Prigg v. Pennsylvania. Accepting that the Constitution was “pro-slavery,” Garrison rummaged through James Madison’s account of the convention’s debates for “such extracts… as relate to the guilty compromise that was made at the formation of the Constitution.” Ever since, scholars, including Amar and Wilentz, have been unable to look at the convention innocently. As a result, for the 179 years since Madison’s Debates in the Federal Convention of 1787 were published, historians have approached them to document (or refute) the Garrisonian view that the Constitution was “pro-slavery.”

In doing so, scholars rely too heavily on Madison. Those scholars who follow the Garrisonian critique inevitably approach Madison first and foremost as the revealer of the convention’s dark secrets. Some treat him as a dim and bumbling character, like Forrest Gump, narrating events he does not fully understand. Others, like Amar and Wilentz, treat him almost as a villain from a James Bond movie, so proud of his complex and diabolical scheme that he cannot help revealing its shocking details. In either case, they accept Garrison’s premise that the fix was in, the convention was about immoral or evil compromises on slavery, and the only use for Madison’s “notes” from the convention is to expose those compromises.

Madison Becomes Both Central and Not Central Enough
At the same time, this approach, while making Madison central to unlocking the secret intent and motives of the convention, does not rely on Madison heavily enough. It ignores the convention’s context within the broader process by which America’s national institutions developed following the War for Independence. More, it ignores Madison’s unparalleled contributions to that process, most notably his careful study of the Vices of the Political System of the U.S., and his effort to correct those vices. Indeed, his contributions to the convention all can be profitably viewed through their tendency, as he put it in Federalist No. 10, “to break and control the violence of faction.”

This constant emphasis on breaking and controlling the violence of faction even includes his reflections on the challenging issue of the executive. In a long speech on July 25, Madison returned to the point Amar and Wilentz emphasized. Again fearing “intrigue with the legislature,” Madison wished to avoid a situation in which the executive “would derive his appointment from the predominant faction.” He was leaning now toward direct popular election, but once again pointed to “the disproportion of qualified voters in the Northern and Southern States….” Against this potential objection, Madison hoped, “this disproportion would be continually decreasing under the influence of the republican laws introduced in the Southern States;” perhaps he referred to a manumission law Virginia passed in 1782. He concluded in a spirit of conciliation that “local considerations must give way to the general interest. As an individual from the Southern States, he was willing to make the sacrifice.”

On issues related to the executive, which were deferred until the convention’s very end and delegated to a committee, even Madison himself did not have a consistent view. Thus, just as it is wrong for scholars like Amar and Wilentz to have seized on one fragment to explain Madison’s—and the convention’s—intent on the Electoral College, it is misguided for defenders of the College to assume it is above reproach as the product of the framers’ great wisdom. Instead, it is best to accept, like Madison, that while “the convention should have been forced into some deviations from that artificial structure and regular symmetry which an abstract view of the subject might lead an ingenious theorist to bestow on a Constitution planned in his closet or in his imagination,” the convention’s delegates shared a “deep conviction of the necessity of sacrificing private opinions and partial interests to the public good.” On issues of electoral politics, all Americans should emulate Madison and seek to avoid the violence of faction.

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About Jason Ross

Jason Ross has a Ph.D. from Georgetown University. He is currently at work on a book (with Gordon Lloyd), Slavery and the “Well Constructed Union”: Use, Misuse, and Neglect of Madison’s “Debates. Follow him on Twitter, @Jason_C_Ross.