by Lynne Cheney
It is hard to be sure what the United States would look like today if members of Congress selected the president, but certainly the list of White House occupants would be different. There would have been fewer congressional outsiders, such as Ronald Reagan and Bill Clinton. Instead of only one Speaker of the House, James K. Polk, being elected president, there would surely have been several. But the possibility of congressional selection was foreclosed when John Dickinson of Delaware walked through the library door. He was a member of the committee but had been ill, and committee members paused so that the minutes of their deliberations could be read to him. When he heard the recommendation for having the president be elected by the national legislature, he objected: “I observed that 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.” As Dickinson described what happened next, “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 Madison took a pen and paper and sketched out a mode for electing the president agreeable to the present provision.” Madison pulled together ideas that had previously been discussed in the convention and refined them into a compromise that with a few changes established today’s Electoral College system. At one point delegates had passed a proposal to have state legislatures choose electors. Madison put the legislatures in charge of deciding how electors would be chosen, a plan that opened the way for voters to choose electors, as they do today. Each state was to have a number of electors equal to its number of representatives in the House and Senate, which was of advantage to large states. To bring small states along, Madison returned to a version of a plan discussed earlier, proposing that each elector cast two votes, one of which had to be for someone outside his state. Virginia’s electors, in other words, would have to cast as many votes for non-Virginians as for Virginians. When the subject had come up previously, Madison had worried aloud about second votes being thrown away in order that a voter might “ensure the object of his first choice,” but now he had the solution: make the second vote count. And thus the vice presidency came into being. The person with the second-greatest number of electoral votes would fill that office. He would be first in line of succession, serve as president of the Senate, and have the ability to cast tie-breaking votes in that body.52
The committee’s report put the matter of choosing the president in the hands of the Senate should no single candidate gain a majority of electoral votes. When there was objection in the convention, Madison explained that giving tie-breaking power to the Senate was the surest way of keeping the matter out of legislative hands. “Whereas if the Senate in which the small states predominate should have the final choice, the concerted effort of the large states would be to make the appointment in the first instance conclusive,” he said. Still, there was a slew of objections to giving the Senate, which many delegates viewed as aristocratic, the de facto power of determining the president, and delegates finally agreed to put the responsibility in the House, with each state casting a single vote.53
The vice presidency came in for a good deal of criticism. Some objected to having the vice president serve as president of the Senate, as Madison’s plan proposed. Elbridge Gerry declared, “The close intimacy that must subsist between the president and vice president makes it absolutely improper,” which inspired Gouverneur Morris to counter, “The vice president then will be the first heir apparent that ever loved his father.” Roger Sherman observed that “if the vice president were not to be president of the Senate, he would be without employment,” an argument that Hugh Williamson of North Carolina, who had been on the Committee on Postponed Parts, did not find convincing. He believed that “such an officer as vice president was not wanted. He was introduced only for the sake of a valuable mode of election which required two to be chosen at the same time.”54 In the end, however, delegates approved having the vice president serve as ex officio president of the Senate.
Another change proposed by the Committee on Postponed Parts—and one Madison had previously put forward—removed from the Senate the power to appoint judges, ambassadors, and other public ministers. Instead, the president would appoint them, by and with the “advice and consent of the Senate.” This remarkable enhancement of presidential power passed the convention without dissent. By a vote of 9 to 2, the convention also gave the president the right to appoint “all other officers of the United States whose appointments are not otherwise herein provided for.”55
• • •
IN THE MOST impassioned debates of the convention, the ones concerning slavery, Madison was not a forceful participant. Delegates had adopted the three-fifths rule, which provided that three of every five slaves would be counted to determine a state’s population and thus the number of representatives it would have. Gouverneur Morris, unable to abide the benefit that this rule gave to slaveholding states, unleashed a tirade in which he declared slavery to be “the curse of heaven on the states where it prevailed.”56 Madison was silent. He seems to have concluded that the convention could not both grapple with slavery and build a nation—and most delegates seem to have agreed. Morris’s proposal to overturn the three-fifths rule went down 10 to 1.
Madison did comment briefly on a proposal concerning the slave trade. A compromise had been reached between states that wanted Congress to have no authority over it (South Carolina, North Carolina, and Georgia) and other states, including Virginia, that wanted Congress to end it. The agreement was that Congress would have no authority until after 1800, but when that proposal was taken up, General Charles Cotesworth Pinckney of South Carolina, an older cousin of the other Pinckney at the convention, immediately moved to extend the date to 1808. Madison objected, declaring that “so long a term will be more dishonorable to the national character than to say nothing about it in the Constitution.”57 But with votes not only from the Deep South but also from Connecticut, New Hampshire, Massachusetts, and Maryland, General Pinckney’s amendment passed.
Gouverneur Morris wanted to be very clear about what had happened. Instead of “such persons as the several states now existing shall think proper to admit,” he wanted the word “slaves” to be used. Madison objected, saying that he “thought it wrong to admit in the Constitution the idea that there could be property in men,” and his view prevailed. Euphemisms were a way of avoiding the terrible truth that slavery existed, but they also allowed the delegates to create a document suitable for a time when it would not. As political scientist Robert Goldwin observed, they created a constitution for a society that would offer more justice than their own.58
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BY THE TIME the delegates were ready to send their work to the Committee of Style, which would give the Constitution its words and arrangement, they had, following Madison’s lead, created an executive much stronger and more independent than Madison had originally set forth in the Virginia Plan. Although Madison was still not certain that the president would be strong enough to resist the “legislative vortex,” the office that had been created appeared too formidable to some. Edmund Randolph had objected in the convention’s early days to a single executive as “the fetus of monarchy.” He did not see “why the great requisites for the executive department, vigor, dispatch, and responsibility, could not be found in three men, as well as in one man.” He was also troubled, he said, by certain “ambiguities of expression.”59 He repeatedly tried to persuade his fellow delegates to deal with these and other matters in a second convention, and when that idea was not accepted, he refused to sign the Constitution.
Elbridge Gerry, who also refused to put his signature to the finished document, listed numerous reasons, including “the vice president being made head of the Senate,” a situation he regarded as “dangerous.” George Mason, whom Madison reported “in an exceeding ill humor,” refused to sign b
ecause the Constitution contained no bill of rights—an idea he did not broach until late in the convention. He also objected to the vice president, “that unnecessary (and dangerous) officer … , who for want of other employment is made president of the Senate, thereby dangerously blending the executive and legislative powers.”60
Madison was a member of the Committee of Style, but he emphasized that Gouverneur Morris should be credited “for the finish given to the style and arrangement of the Constitution.”61 Thus we know it is to Morris that we owe the elegant preamble:
We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
The power of the preamble comes in large measure from Morris’s having anticipated the Constitution going into effect, which would occur, according to article 7, after state conventions, chosen “by the people,” had ratified the document. Then it would be no longer the creation of delegates in Philadelphia but the decree of “We the people.”
• • •
ON SEPTEMBER 17, 1787, a clear, cool day, delegates gathered for the last time. After the Constitution was read aloud, Benjamin Franklin proposed that they subscribe their names to the document in witness to “the unanimous consent of the states present.” This “ambiguous form,” Madison explained in his notes, “had been drawn up … to gain the dissenting members.”62 A delegate’s signature on the document, in other words, indicated not personal approval but rather recognition that a majority of the delegates present from each state had voted aye. Franklin’s proposal, which Madison observed in his notes had originated with Gouverneur Morris, did not induce Randolph, Gerry, or Mason to sign, but it did allow the convention to cloak the result of its efforts in the fine cloth of unanimity—despite the presence of delegates who did not approve.
As the last of the delegates was signing, Madison, still taking notes, recorded remarks that Benjamin Franklin made to those sitting near him about the half sun carved on the back of George Washington’s chair: “I have, said he, often and often in the course of the session and in the vicissitudes of my hopes and fears as to its issue, looked at that behind the president without being able to tell whether it was rising or setting. But now at length I have the happiness to know that it is a rising and not a setting sun.” Madison finished his note taking with this image of optimism, but it did not reflect what he felt. With the states represented as states in the Senate and with no national veto over their actions, he was concerned, as he wrote to Jefferson, “that the plan should it be adopted will neither effectually answer its national object nor prevent the local mischiefs which everywhere excite disgusts against the state governments.”63 After all the effort of weeks and months, he had little confidence that the framework for government that the convention had created would work.
Chapter 7
IF MEN WERE ANGELS
WHEN JOHN QUINCY ADAMS called Madison “the father of the Constitution,” he was not only paying tribute to what Madison accomplished in Philadelphia but also recognizing his achievements in the months afterward.1 Crucial as Madison was to the creation of the Constitution, he was at least equally important to seeing that it went into effect.
But before he could begin his efforts on behalf of ratification, he had to reconcile himself to what he thought of as the Constitution’s great flaw: it failed to do enough to control what he called “the unwise and wicked proceedings” of the states.2 The Constitution did place some restrictions—states could not coin money, for example, pass ex post facto laws, or engage in war—but Madison did not think this was enough. He had seen states pass laws that made it impossible for creditors to collect what was owed to them and that violated international treaties. He had seen them try to legislate religious belief and refuse to pay requisitions even when it meant that soldiers in the field went hungry. He had also seen that respect neither for the general good, nor for reputation, nor for religion had the power to prevent the actions of self-interested majorities in the states. Thus his conviction that a national veto was necessary—and his doubt that a constitution without it would work.
Madison stayed in Philadelphia for several days after the convention, finishing up his notes and trying to figure out his way forward. His delay in getting to New York, where Congress was meeting, prompted one of his fellow Virginians to write to hurry him along. In case Madison was taking his time in getting back to New York because he supposed that the Virginia delegation was doing fine without him, Edward Carrington wrote, he should be aware that all was not well, particularly in the case of Richard Henry Lee, who had pretty clearly been in touch with convention dissenters. Having made history for proposing in Congress in 1776 that the colonies “are, and of right ought to be, free and independent states,” Lee was a powerful politician whose opposition to the Constitution could not be discounted. Tall and thin, he possessed noted oratorical powers, which he enhanced with sweeping gestures made all the more dramatic by a black silk handkerchief he kept over his left hand. It covered the results of a long-ago hunting accident in which he had lost four fingers.3
The realization that the Constitution could be in trouble might have helped Madison put his doubts aside. Perhaps during the postconvention days in Philadelphia, he also visited with Benjamin Franklin, who had been eloquent about his own misgivings. On the last day of the convention, Franklin had said that despite what seemed to him the Constitution’s faults, he supported it: “For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does… . Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best.” Madison came around to a similar view. While not glossing over his disappointment, he told Jefferson that given “the natural diversity of human opinions on all new and complicated subjects, it is impossible to consider the degree of concord which ultimately prevailed as less than a miracle.” He advised another friend that it was a mistake to compare the document produced by the convention with an ideal theory, “which each individual may frame in his own mind.” The proper comparison was “with the system which it is meant to take the place of.” Whatever its failings, the Constitution was superior to the Articles of Confederation. It would provide “some anchor for the fluctuations which threaten shipwreck to our liberty.”4
Madison arrived in New York, moved into Mrs. Elsworth’s boardinghouse, and soon found himself countering efforts by Richard Henry Lee to amend the document created in Philadelphia. Some of the changes Lee proposed were structural, including a senate in which representation was according to population. Madison had fought for proportional representation in the Senate but realized that any amendment would throw the ratification process into chaos. “There will be two plans,” he said. Some states would likely consider the document proposed by the convention, others the Constitution as amended by Congress, and nine states had to ratify exactly the same document in order for the Constitution to go into effect.5
Lee also proposed a declaration of rights to include freedom of the press and freedom of religion, a suggestion that seemed almost a surprise to Madison. Such a declaration was not necessary, he explained. The proposed constitution based all power in the people, who then granted certain enumerated powers to the government. They had not given over their rights in those enumerated powers and thus did not need the Constitution to guarantee them. The delegates to the Philadelphia convention, who had been part of creating the Constitution, seem for the most part to have grasped this. Only in the last days of the convention did George Mason,
growing increasingly hostile, bring the subject up.6 During the ratification process, it would become very clear, however, that this theoretical understanding was not widely shared. Suggestions in ratifying conventions for amending the Constitution to include various rights would present to Madison one of his greatest challenges, particularly since opponents to the Constitution figured out early the chaos that amendments could cause.
Lee did not have the votes to pass his amendments, but Madison and his allies viewed their very existence as a threat. Word of them would spread, and delegates from various state conventions might well pick and choose, resulting in the confusion that pro-Constitution forces dreaded. Thus proponents of the document agreed that in exchange for expunging Lee’s proposed amendments from the congressional journal, they would send the document to the states without making a recommendation that they ratify it.
The Federalists, as pro-Constitution forces were beginning to call themselves, did take advantage of the agreement of all states present and voting to the compromise by inserting the word “unanimously” in the resolution. Lee understood what they were doing—hoping that the population at large would think that “unanimously” applied not merely to the sending of the Constitution but to “unanimous approbation” for the document itself. When George Washington learned from Madison what the Federalists had done, he pronounced himself “pleased”: “This apparent unanimity will have its effect. Not everyone has opportunities to peep behind the curtain; and as the multitude often judge from externals, the appearance of unanimity in that body, on this occasion, will be of great importance.”7 Washington was not so much of a statesman that he failed to appreciate a skillful political maneuver. He had, after all, presided over a similar one at the Constitutional Convention.