Prof. Akhil Amar of Yale Law School launched a salvo against the Electoral College. In a piece published on December 12 at the website of Time, Amar claimed that the Electoral College has pro-slavery origins. James Madison preferred it to a nationwide popular vote because he wanted Southern slaves to count in the tally of votes. This, Amar said, is “the real demon dooming direct election in 1787 and 1803,” when the 12th Amendment, which accommodates two-candidate tickets for president and vice president, was adopted.
Soon enough, Amar’s assertion spread through the liberal media. Democratic operatives incorporated it into their talking points. Donald Trump’s election was somehow illegitimate, because he had “only” won in the Electoral College—which was a relic of slavery, and thus unworthy. All of this cant assumed that Amar was right.
But he wasn’t right. The records of the Philadelphia Convention of 1787, which drafted the Constitution, tell a different story.
Let’s go back to the very speech of James Madison on which Amar’s contention rested. First, Amar gets the context wrong, saying that “the visionary Pennsylvanian James Wilson proposed direct national election of the president,” and “the savvy Virginian James Madison responded that such a system would prove unacceptable to the South.” Alas, according to Madison’s Notes of the Philadelphia Convention for Thursday, July 19, 1787, Madison’s response was not to a speech by James Wilson but to one by Wilson’s nationalist Northern ally Gouverneur Morris. “If [the president] is to be the guardian of the people,” protecting them from the predations of the legislative branch, Morris said, “let him be appointed by the people.”
In the same speech, Morris batted down the most common objection at the Philadelphia Convention to the direct election of the chief executive: that the people would not be familiar enough with the continent’s political elite to be able to weigh the merits of potential officeholders from distant states. “It has been said that the candidates for this office will not be known to the people,” he said, but, “If they be known to the Legislature, they must have such a notoriety and eminence of Character, that they can not possibly be unknown to the people at large.”
Rufus King of Massachusetts took exception to Morris’s argument. He thought the people could be trusted, but that, owing to the geographic extent of the country and the resulting unfamiliarity of voters with people from other states, “an appointment by electors chosen by the people for the purpose, would be liable to fewest objections.”
William Paterson of New Jersey chimed in at this point. Madison recorded him as having said that his “ideas nearly coincided . . . with those of Mr. King.” Madison had him then
propos[ing] that the Executive should be appointed by Electors to be chosen by the States in a ratio that would allow one elector to the smallest [that is, least populous] and three to the largest [most populous] States.
Wilson—who was characterized by Amar, recall, as the proponent of direct election—followed Paterson’s interjection by noting how happy he was that “the idea was gaining ground of an election mediately or immediately by the people.” In other words, Wilson was glad that other delegates were now considering the possibility of direct popular election or selection of the president by electors chosen by the people.
So much for Amar’s Manichaean scenario of democratic Wilson versus “demon”-inspired/Electoral College-proposing Madison.
The inaccuracy of Amar’s account does not end there, however. Consider his accounting of what Madison said:
“The right of suffrage was much more diffusive [i.e., extensive] in the Northern than in the Southern States; and the latter could have no influence in the election on the score of Negroes.” In other words, in a direct election system, the North would outnumber the South, whose many slaves (more than half a million in all) of course could not vote. But the Electoral College—a prototype of which Madison proposed in this same speech—instead let each southern state count its slaves, albeit with a two-fifths discount, in computing its share of the overall count.
Amar’s elucidation of Madison’s statement omits the first clause of his sentence entirely. What did Madison mean in saying that “The right of suffrage was much more diffusive in the Northern than in the Southern States?”
Here Madison had in mind the effects of Virginia’s property qualification for voting. This qualification was part of Virginia’s English inheritance. Though the early colonial requirement had been reduced, an adult white man of sound mind could vote in Virginia only if he owned a substantial amount of real property. Scholars estimate that this meant about half of the citizens could vote. Madison’s point, then, is that if there were a national popular vote for president, Virginians would be seriously disadvantaged. He then adds, as a subordinate concern, the part of the statement which, in Amar’s mind, amounts to the whole of it.
There is nothing in the records of the Philadelphia Convention to substantiate Amar’s claim about Madison’s having proposed a prototype of the Electoral College “in this same speech.”
Amar’s account of the framing proceeds directly to a series of statements about the Electoral College system’s effects—that Thomas Jefferson won the presidency over John Adams in 1800, that eight of the first nine presidential elections were won by “white slaveholding Virginian[s]” (heaping non sequitur on non sequitur), etc.—before concluding with advice to Americans that we consider whether we “want to maintain this odd—dare I say peculiar?—institution in the 21st century.” Not only has he seriously distorted Madison’s argument, but he gives the impression that Madison’s argument was the end of that particular discussion.
This impression is false. Once again, let us turn to Madison’s notes.
When Madison finished his speech, the next man up was Elbridge Gerry of Massachusetts. Like his fellow Yankees King and Paterson, Gerry disliked the idea of popular election, saying, “The people are uninformed, and would be misled by a few designing men.” Therefore, “He urged the expediency of an appointment of the Executive by Electors to be chosen by the State Executives.” Whatever other delegates thought of this novel proposal, Gerry hoped to impress upon them that “The popular mode of electing the chief Magistrate would certainly be the worst of all.” The people’s generally poor judgment meant that, “If he should be so elected & should do his duty, he [would] be turned out for it like Govr. Bowdoin in Massts . . . ” (Gerry believed that James Bowdoin had suffered at the polls for putting down Shays’ Rebellion.)
Next, Connecticut’s Oliver Ellsworth moved to strike out of the pending resolution the provision for the election of the president by the legislature and to replace that portion with the following language:
to be chosen by electors appointed, by the Legislatures of the States in the following ratio; to wit-one for each State not exceeding 200,000 inhabts. two for each above yt. number & not exceeding 300,000. and three for each State exceeding 300,000.
Delaware’s Jacob Broom seconded Ellsworth’s motion.
Next came John Rutledge of South Carolina, the only Southern delegate besides Madison who we know took part in this debate. So prominent was Rutledge in his home state that, when it became clear during the Revolution that the British were going to occupy Carolina, the legislature hurriedly conferred dictatorial powers upon him. Historians of the Philadelphia Convention generally cast him in the role of leading proponent of the slaveholding interest in the convention. Those who know of these events only from Amar likely would be surprised, then, that Rutledge was the sole delegate to express opposition to the idea of an Electoral College at this juncture. “Mr. Rutledge was opposed to all the modes except the appointmt. by the Natl. Legislature,” Madison scribbled. After Gerry said he liked Ellsworth’s concept second-best, two votes were called.
The first question was on Ellsworth’s motion to replace election of the president by Congress with election by electors. Massachusetts was divided; Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, and Virginia voted “aye”; and North Carolina, South Carolina, and Georgia voted “no.” Again: The only “no” votes came from the three Deep South states, and while Massachusetts was divided, the rest voted “aye.” Even if one left aside the rest of the Philadelphia Convention, it would be hard to conclude from the passage to which Amar directs our attention that the Electoral College resulted from a slave-state impulse, let alone that its purpose was to benefit slaveholders.
A consideration of the record of the entire Philadelphia Convention is no more helpful to Amar’s cause. The concept of an electoral college first appears in Max Farrand’s four-volume The Records of the Federal Convention of 1787 in the form of a journal entry made on June 2, 1787. The speaker who broached the idea was not a Southerner, but none other than James Wilson of Pennsylvania—the same James Wilson whom Amar brands a “visionary.” Delegate William Pierce of Georgia noted that Wilson’s proposal envisioned an election of electors from special districts. Even more inconveniently for Amar, all of the slavery-dominated states joined the majority in voting “no.”
Alexander Hamilton famously sat silent in the convention from its opening in late May until June 18, when he unburdened himself of the fateful speech that would have so great a bearing on the party divisions of the following decade. Among other aspects of that ponderous address, pride of place went to his proposal for a life term for the president. Besides that, he called for election of the president by electors elected either by the people in special districts (as Madison recorded it) or by electors elected by those electors. Hamilton represented his adoptive state of New York in the convention.
Amar points to a fuller discussion of this issue in his popular book America’s Constitution: A Biography. On inspection, however, in turns out that Amar offers essentially no additional relevant evidence there. The only Philadelphia Convention utterance supposedly proving that Southern advocacy of an Electoral College was tied to slavery is one offhand statement by Hugh Williamson of North Carolina on July 17. Madison’s notes show Williamson intervening in a conversation about popular election of the president to say that, once the continental political figures of the Revolution have died off, “The people will be sure to vote for some man in their own State, and the largest State will be sure to succede [sic]. This will not be Virga. however. Her slaves will have no suffrage.”
Again, Williamson’s speech came in the midst of several other delegates’ addresses considering a pending motion to substitute popular election of the president for election by the legislature. Morris had kicked off the discussion by saying the people at large would choose a distinguished man, while the legislature’s choice would be the product of “cabal.” Connecticut’s Roger Sherman had countered that, no, the people probably would be too ill informed for the task and unable to settle on any one person, which meant that they would tend to vote for someone from their own state, so that “the largest State [would] have the best chance for the appointment.” South Carolina’s Charles Pinckney hazarded the guess that the few large states would combine in selecting a common candidate. Mason held that the people would not know the candidates well enough to decide. Then Williamson interjected that the largest state would win, though it would not be Virginia, because its slaves would not count.
Clearly, Williamson’s comment—like the single subordinate clause in the one Madison sentence on which Amar most relies—is not best understood as meaning what Amar would have it mean. Williamson’s statement about Virginia has rather more the air of a casual comment made by a delegate who was thinking out loud about earlier speakers’ contention that the largest state would win. Sure, he said, but it won’t be Virginia. The question was brought to a vote, and only Pennsylvania voted for popular election of the president.
On August 24, Morris intervened in yet another discussion of the method of choosing the president. To have the legislature choose the president would make him subordinate to it, Morris complained, and so he ought instead to be chosen “by Electors to be chosen by the people of the several States.” Charles Carroll of Maryland seconded him, and the 6-5 vote against the motion once again found all three Deep South states voting “nay.”
John Dickinson of Delaware tells us that the Committee for Postponed Parts decided on the Electoral College at Dickinson’s own insistence. Entering the room in which the committee had just completed its business, including agreeing to have Congress elect the president, Dickinson protested that the people would never accept this idea. At that point, Chairman Morris asked colleagues to resume their seats, and Madison “took out a Pen and Paper, and sketched out a Mode of Electing the President.” Dickinson, Morris, and Madison were the delegates most responsible, then, for this distillation of the convention’s work. On September 4, the Committee of Eleven, which under the chairmanship of Massachusetts’ Rufus King (later famous for his role as an antislavery senator in the Missouri Crisis) drafted language resolving several ongoing disputes, referred the Electoral College provision to the full convention. It was approved two days later.
One final point: The Framers and Ratifiers of the Constitution understood that the Constitution’s provision for elections in which no candidate received a majority of Electoral College votes would sometimes, even usually, come into play. Thanks to our two-party system, this has only occurred once (1824), but the idea that it would occur quite often was common in 1787-90, when the Constitution was being ratified. In such cases, the top five candidates’ names would be put before the House of Representatives, where each state would have one vote. As George Mason famously pointed out to his Philadelphia Convention colleagues, there were five Southern states and eight Northern. One would not expect a pro-slavery bias to affect a House election of the president.
Amar often couches criticism of the Electoral College in accounts of presidential elections won by slaveholders. If we lacked information about the Electoral College’s creation, we might be forced to try to draw conclusions from such accounts. Yet we need not rely on facts about the election of 1800-01 to understand why the Electoral College was created. The much fuller information we have shows that Amar’s assertions are plainly wrong.
So why does Amar make this argument? Here is a prime example of law-office history—of pseudohistorical argumentation by a lawyer for a political purpose. Amar has long written and spoken in various fora of his wish for an end to the Electoral College. Because he is a professor at Yale Law School, he has ready access to major media outlets for disseminating his arguments, and his books draw attention. Far from teaching us about the creation of the U.S. Constitution, this episode in contemporary American intellectual history has something to tell us about cultural authority in our own day.