The Electoral College and Slavery

It's easy to get this one wrong.

Some down-in-the-weeds founding U.S. history for you.

I made an error in my forthcoming book THE HAMILTON SCHEME. I said that James Wilson, delegate from Pennsylvania to the Constitutional Convention, and one of the major legal minds behind the resulting document, opposed the creation of what we now call the Electoral College and argued that the executive should be chosen instead in an unmediated election by the qualifed voters throughout the country: a popular vote.

Those of you who know some constitutional history may be saying, “No, that’s not an error, you’re fine, Wilson did oppose the Electoral College,” because the false impression that he did is all over the literature. I know enough about Wilson that I’ve had to strain, for years, to reconcile this seemingly democratic impulse regarding presidential elections with the anti-democratic nature of so much else he did. I could have saved myself the trouble, just by looking more skeptically at the widespread sense that Wilson opposed the creation of the Electoral College.

He didn’t oppose the creation of the Electoral College. And the reasons for saying he did are revealing.

For one of many popular examples of this mistaken notion about Wilson opposed the Electoral College, see Akhil Reed Amar, “The Troubling Reason the Electoral College Exists.” As Amar puts it there:

At the Philadelphia convention, the visionary Pennsylvanian James Wilson proposed direct national election of the president. But the savvy Virginian James Madison responded that such a system would prove unacceptable to the South: ‘The right of suffrage was much more diffusive [i.e., extensive] in the Northern than the Southern States; and the latter could have no influence in the election on the score of Negroes’.”

The same idea can be found in more detail in Amar’s book America’s Constitution: A Biography (Random House, 2006): an approach to presidential elections at once democratic and anti-slavery, put forth by Wilson, was overcome by Madison’s opposition on behalf of the slavery states. Today’s version of the institution, not only manifestly anti-democratic, is thus tainted by origins that make it first, foremost, and essentially racist, beginning as a prop for the institution of slavery.

But Amar is misreading the exchange he quotes. Wilson and Madison were in fact fully aligned.

And that’s by no means surprising. It’s widely understood that Wilson, Madison, and others caucused privately in an effort to achieve certain shared results at the convention. Differences occurred within that group—but less on policy than on what to say when, and this Electoral College issue was not one of them.

The section of debate that Amar is citing—Farrand, Madison’s Notes, July 19, 1787 (scroll to or search the date)—shows clearly that Wilson did not oppose creating a system of electors to mediate the will of the people in electing the executive, though unlike some others at the convention, he did believe that an unmediated popular vote would do the job too. Shortly before the Madison remark that Amar quotes, Wilson expressed his pleasure that an election “mediately or immediately by the people” [emphasis added] had gained so much traction among the delegates that the idea of having the legislature elect the executive finally seemed to be off the table. That was the real point Wilson was repeatedly making, in all of the many quotes so often taken out of context to show, supposedly, that he opposed a mediated vote by the people and strongly preferred an unmediated one. He was in fact addressing an entirely different question about the nature of the executive branch, indeed, to the delegates, the only really critical question, once they’d agreed that the executive was to be solo:

Should the national executive be chosen by the legislature, making executive power dependent on that body (as with the executive branch in radically democratic Pennsylvania)? Or …

Should the executive be chosen by the qualified national electorate, making executive power independent of the representative function?

Not surprisingly, given his experience, alliances, and overall point of view, Wilson fully concurred with Gouverneur Morris, Robert Morris, Madison (whose original proposal had actually gone the other way), Hamilton, Washington, and the others who, fearing the democratic effects in Pennsylvania of subordinating the executive to the representative branch, worked easily together across regional lines to keep the national executive branch independent. When that overriding aim for the structure of government is understood as the only important one, to them, and when the debates are read without regard for current discourse on the Electoral College, and on the role of slavery in making the nation, it’s clear that whenever Wilson speaks in the convention in support of what Amar calls “direct national election,” or election by the people, or other such things, he’s striking a contrast not between a mediated vote (Electoral College) and an unmediated vote (popular), as Amar claims, but between selection via a system involving the qualified national electorate versus selection by the national legislature. (See also, for example, Farrand, Madison’s Notes, July 17, 1787: scroll to or search the date.) Wilson wants the executive chosen independently of the legislature.

Regarding how the executive should be chosen independently of the legislature, Wilson’s “mediately or immediately” makes clear that he favored any feasible way that would achieve the all-important goal of establishing an executive independent of the representative function. It’s true that he was less concerned than some about placing an Electoral College check on the will of the voters. In many states, the will of the whole public was checked electorally anyway, by property and a host of other qualifications for access to the franchise.

It's also true that Wilson was also super-sensitive to any tendency to give the state legislatures power within the national government. Still, it was Wilson himself who proposed the mediated electoral system later known as the Electoral College, and he did so not in some unhappy state of frustrated desire for an unmediated system but in relief that the executive wouldn't be subordinated to the representative branch.

Nor did he push the Electoral College in reluctant response and deference to Madison’s suggestion—often erroneously presented as the critical one—that given the glaring North-South regional disparity in the size of qualified voting populations, an unmediated popular election would penalize the South. Amar and others frame Madison’s aim in keeping the executive election from being purely popular as as shoring up the slavery states.

But once you remove common misreadings of Wilson’s arguments, it’s hard to see anyone at the convention arguing strenuously for a purely popular system and against a system of electors—so Madison had no need to argue that particular point. Many delegates already took it totally for granted that in a countrywide election, the usual cluster of electoral exclusions might not be enough to enable the whole national electorate to choose wisely, that a filtering layer should refine the choice.

This issue certainly didn't break down on a North-South axis. Rufus King of Massachusetts expressed a belief in the unmediated wisdom of the qualified electorate. And yet even he acknowledged potential for trouble on that score and advised using electors. The issue of an Electoral College vs. an unmediated popular election didn't break down across any lines at all. It didn't break down. The critical issue for the delegates—it had brought them to Philadelphia in the first place—was the people’s tendency, when unrestrained, to up-end traditional political and economic relationships. As the Shays Rebellion and other events had shown, even the strictest limits on the electoral franchise might fail to prevent democratic incursions on economic policy. Even qualified voters, and even the further qualified elected officials, could be influenced by unrest from below.

The more checks and filters the better. Hence the United States Constitution.

Hence Madison’s observation regarding the South with reference to the Electoral College. Remove foregone conclusions and the transcript makes it plain that Madison is not dissenting from an (imaginary) insistence by Wilson on instituting an unmediated executive-election system. Hes supporting his long-term ally Wilson’s hopeful assertion that the idea of having the national legislature elect the national executive is now off the table. To remove any further objections that the southern delegates might, given the regional disparity in voter populations, be harboring, Madison raised that objection and satisfied it in one breath by noting that an election by the people, when mediated via electors—the system that Wilson, in sync with Madison, was by no means arguing against—would be innocuous, unlike an unmediated general election, in its effects on the South.

That’s because the underlying presumption of the debate was that electors would be chosen by state legislatures in numbers proportionate to population, as determined by the rule whereby the enslaved parts of states’ populations were to be counted, for the purposes of federal representation, not at zero, as the North would have preferred, but at three-fifths, thereby flattening, in Madison’s and others’ arguments, the regional voting disparity (though favoring, in operation, the South). The three-fifths rule—first introduced by Wilson himself, along with Roger Sherman of Connecticut—is fairly seen as one of the means by which slavery was written into the Constitution. But I think “written in” implies way too much assertion and effort, as if there had ever been the slightest chance of its not being. Slavery was taken as given, accepted as status quo, and thus pervaded all national operations.

Some who don’t like the Electoral College (I’m one of them) have tried to damn it in the public mind by giving it an exceptional and essential link to slavery (that’s been done as well to the Second Amendment, the equal suffrage of the Senate, police brutality, and other things I don’t like). The New York Times has gone all the way in that tendency, giving a different Amar article the headline “Actually, the Electoral College Was a Pro-Slavery Ploy.” Blaming James Madison for building allegiance to slavery into the Constitution, and making James Wilson’s antislavery position look like a constitutional position, is part of that delusional process.

But there was no need for a “ploy.” Madison wasn’t pushing for a mediated over an unmediated presidential election on the basis of the three-fifths rule, as Amar suggests: he didn’t have to push at all, because nobody was pushing the other way in favor of an unmediated version. Madison simply assured southerners that given the three-fifths rule regarding population-count, no regional imbalance penalizing the South would emerge from a system in which the executive was chosen not by the legislature but by the public—a system already indeed endorsed by many northerners other than Wilson, who were just as enthusiastic as Madison about using a system of presidential electors.

They included Gouverneur Morris of New York. He was volubly antislavery and typically anti-democracy and supported the Electoral College. On the flipside, George Mason of Virginia did not argue in favor of the Electoral College, as Amar’s analysis would lead one to expect. Mason preferred election of the executive by the legislature—and not, in his case, because he was in favor of the kind of radical democracy seen in Pennsylvania but because he opposed any powerful exertion of the national government against the states.

Such were the actual hot-button complications wrestled with by the governing elite of the day. They don't break down over conflicts about slavery, but Madison’s quote has been deployed to uncomplicate those complications by singling out the Electoral College as, of official American institutions, exceptionally racist in its origin, which it isn’t, exceptionally; to connect the founders’ universal fear of democracy with some of the founders’ fear that the national government would penalize the slavery states, when those fears were in practice orthogonal; and to lionize James Wilson as an enemy of writing slavery into the Constitution and a champion of democracy, contrary to his actual efforts.

I should have guessed that if Amar is advancing this idea of Wilson the anti-Electoral-College hero, then it has to be wrong: he can discern founding abolitionist and pro-democracy impulses where they don’t exist and fuzz out unhappy founding realities like no other. But only now am I reading the record clearly enough to find James Wilson a lot more consistent, less of a puzzle, than I knew.

I regret the error.

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Most of THE HAMILTON SCHEME is more or less correct. And on Wednesday, September 4, at 7:00 PM, I’ll be outdoors in Bryant Park, in New York City, at the Reading Room, talking about it.