8 Shameful Things Our Founders Believed–IV

Picking up from Friday:  Shameful Things Six and Seven.


  1. The people couldn’t be trusted to elect their state’s Senators.

Article I, Section 3 of the original Constitution created a Senate, consisting of two representatives appointed by each State’s Legislature to six-year terms, each invested with one vote.  Staggered terms were established for initial appointees so that reconstitution of one-third of the body would occur every two years.  The initial qualifications for Senate candidates were to attain the age of 30 years when sworn, to have been a U.S. citizen for nine years, and not to have been an inhabitant of the State from which appointed.  In the event of a vacancy occurring while that State’s Legislature was not in session, its Executive was empowered to make a temporary appointment until its members could reconvene and act.  The Vice-President is designated the formal presiding officer of the Senate, a function delegable to a President pro tempore, and is authorized to vote only to break a tie.  In addition to the enumerated internal and external powers it shares with the House of Representatives in Article I, Sections 4-8, the Senate is given sole authority to:

      • Try impeachments (Art. I, Sec. 3), and
      • Consent to or withhold consent from treaties negotiated and presented by the President, a two-thirds vote being required.  (Art. II, Sec. 2)

The creation of a bicameral legislature, with one body elected directly according to proportional to state populations and another with appointed delegates representing each state in equal numbers, was the product of compromise between more and less populous states.  The Congresses convened under Article 5 of the Articles of Confederation consisted of between two and seven delegates appointed from each state, for each annual session.  Each state could cast only one vote, regardless of the size of its delegation—essentially giving less-populous states disproportionate power over larger states.  Fed by the ineffectiveness and discord experienced through eight years in the Confederation’s Congresses, convention debates on this principle were long and contentious.  Here’s how Joseph Story summarized the process in his 1833 Commentaries on the Constitution of the United States:

It constituted one of the greatest struggles between the large and the small states, which was constantly renewed in the convention and impeded it in every step of its progress in the formation of the constitution… The small states insisted upon an equality of vote and representation in each branch; and the large states on a vote in proportion to their relative importance and population.  Upon this vital question there was so near a balance of the states, that a union in any form of government, which provided for either a perfect equality or inequality of the states in both branches of the legislature, became utterly hopeless… A compromise was, therefore, indispensable, or the convention should be dissolved.  The small states at last yielded the point, as to an equality of representation in the house, and acceded to a representation proportionate to the federal numbers.  But they insisted on an equality in the senate.  To this the large states were unwilling to assent; and for a time the states were, on this point, equally divided.  Finally, the subject was referred to a committee, who reported a scheme, which became, with some amendments, the basis of the representation, as it now stands.

Story also observed that “[i]t was added by one most distinguished statesman”—James Madison—“(what has hitherto proved most prophetically too true) that the danger was not between the small and the large states:

The great danger to our general government is, the great northern and southern interests of this continent being opposed to each other.  Look to the votes in congress, and most of them stand divided by the geography of the country, not according to the size of the states.’

Story noted that three schemes presently themselves for selection of Senators:

      • By the Legislature of each State;
      • By the people themselves; and
      • By the other branch of the congress, either directly or out of selected nominations.

The third proposal, advanced by the Virginia delegation, received no “Aye” votes, nine against, and one divided.  “The second scheme,” Story says, “of an election by the people, in districts or otherwise, seems to have met with as little favor.”  The first option was approved unanimously.  Story finds little in the convention’s record to justify this choice.  The Federalist had this to say:

It is unnecessary to dilate on the appointment of the senators by the legislatures.  Among the various modes, that might have been devised for constituting this branch of government, that which has been proposed by the convention is probably the most congenial with the public opinion.  It is recommended by the double advantage of favoring a select appointment, and giving to the state governments such an agency in the formation of the federal government, as must secure the authority of the former, and may form a convenient link between the two systems.

Story mentions that concerns had been expressed about the appointment process carrying some potential for corruption but agrees with Publius (Madison, again) that a direct connection between the state and federal legislatures outweighed any such potential.


U.S. Constitution, Page Four

Attempts at reform failed in 1828, 1829 and 1855, until late in the 19th Century when Progressives, such as William Jennings Bryan, focused efforts on selection by direct, popular vote.  By 1910, 31 state legislatures had passed motions calling for reform. By 1912, 239 political parties at both the state and national level had pledged some form of direct election, and 33 states had introduced the use of direct primaries.  With a campaign for a state-led constitutional amendment gaining strength, and a fear that this could result in a “runaway convention”, the proposal to mandate direct elections for the Senate was finally introduced in the Congress.  The 17th Amendment, passed by the Congress in 1912 and ratified by the States in 1913, provided for the direct election of Senators by residents of their respective States, and authorized State Governors to fill vacancies by “temporary appointments until the people fill the vacancies by election as the legislature may direct.”

In the last two years, the Tea Party movement has taken up the call for repeal of the 17th Amendment, apparently adopting the position that direct representation by appointed officials is the better method for curbing the invasion of the national government into state affairs. (They really need to read up on the Commerce clause.)


  1.  The President should be chosen by Electors, not directly by the people.

Recalling the provisions of Article II, Section 2 of the original Constitution, found in the first installment, the founders settled on having the Nation’s chief executives chosen by an assembly of Electors.  Once again, this was the third option, a compromise between proponents of election by a vote in Congress and election by a popular vote of qualified citizens—i.e., White males holding property.

The Articles of Confederation provided for no executive, individual or branch, so Story reports that the convention’s discussions were wide-ranging.  They decided to create a process, called the Electoral College, consisting of:

      • The selection of Electors in each state equal to the number of members in its Congressional delegation: one for each member in the House of Representatives plus two for its Senators;
      • The meeting of the Electors where they vote for President and Vice President, and
      • The counting of the Electoral votes by Congress.

How each state chooses its Electors and defines their responsibilities is left to state law; most Electors are chosen by each presidential candidate’s political party.  The only federal constitutional restrictions that are relevant prohibit Members of Congress, Senators, and any “Person holding an Office of Trust or Profit under the United States” from serving as Electors.  (If you’re a state official and you’ve rebelled against the United States lately, the  14th Amendment also takes you out of the game.)

The Electoral College consists of 538 Electors.  (The 23rd Amendment allocated three Electors to the District of Columbia; it is treated like a state only in this regard and in electing a non-voting delegate to the House of Representatives.)  (Installment II)  When you vote for President you are actually voting for your candidate’s Electors.

A majority of the College—270 Electoral votes—is required to elect the President.  Most states have a “winner-take-all” system that awards all Electors to the winning presidential candidate.  Maine and Nebraska each have a variation of “proportional representation.”  After the presidential election, each state governor prepares a “Certificate of Ascertainment” listing all of the candidates who ran for President in the state along with the names of their respective Electors.  The Certificate of Ascertainment also declares the winning presidential candidate and shows which Electors will represent the state in the process beginning after the popular vote has been recorded.

On December 17, Electors meet in their state and vote for President and Vice President on separate ballots.  The Electors record their votes on six “Certificates of Vote,” which are paired with the six remaining Certificates of Ascertainment.  The Electors sign, seal, and certify six sets of Electoral votes. A set of Electoral votes consists of one Certificate of Ascertainment and one Certificate of Vote. These are distributed immediately as follows:

      • One set to the President of the Senate (the Vice President) for the official count of the Electoral votes on January 6, 2013;
      • Two packages to the Secretary of State in the state where the Electors met—one is an archival set that becomes part of the public record of the Secretary of State’s office and the other is a reserve set that is subject to the call of the President of the Senate to replace missing or incomplete Electoral votes;
      • Two packages to the Archivist—one is an archival set that becomes part of the permanent collection at the National Archives and Records Administration and the other is a reserve set that is subject to the call of the President of the Senate to replace missing or incomplete Electoral votes; and
      • One set to the presiding judge in the district where the Electors met—this is also a reserve set that is subject to the call of the President of the Senate to replace missing or incomplete Electoral votes.

The Congress will meet in joint session in the House of Representatives on January 6, 2013 to conduct the official tally of electoral votes.  Here’s the procedural rundown:

      • The Vice President, as President of the Senate, is the presiding officer.
      • Two tellers are appointed to open, present, and record the votes of the States in alphabetical order.
      • The President of the Senate announces the results of the vote and declares which persons, if any, have been elected President and Vice President of the United States.
      • The results are entered into the official journals of the House and Senate.
      • The President of the Senate then calls for objections to be made. If any objections are registered, they must be submitted in writing and be signed by at least one member of the House and Senate.  The House and Senate would withdraw to their respective chambers to consider the merits of any objections.

There is no federal constitutional provision nor federal law requiring Electors to vote in accordance with the popular vote in their States.  Twenty-six States bind their Electors to the popular vote by party pledge or state law; 24 States do not.  The Supreme Court has not specifically ruled on the question of whether pledges and penalties for failure to vote as pledged may be enforced under the Constitution.  Throughout history, over 99% of all Electors have voted as pledged, and no Elector has ever been prosecuted for failing to vote as pledged.


Next Friday:  Shameful Thing Eight.

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