Article 2, Section 1, Clauses 2 and 3

[Volume 3, Page 557]

Document 11

Joseph Story, Commentaries on the Constitution 3:§§ 1449--52, 1454--60, 1462--67


§ 1449. It has been already remarked, that originally in the convention the choice of the president was, by a vote [Volume 3, Page 558] of eight states against two, given to the national legislature. This mode of appointment, however, does not seem to have been satisfactory; for a short time afterwards, upon a reconsideration of the subject, it was voted, by six states against three, one being divided, that the president should be chosen by electors appointed for that purpose; and by eight states against two, that the electors should be chosen by the legislatures of the states. Upon a subsequent discussion, by the vote of seven states against four, the choice was restored to the national legislature. Towards the close of the convention the subject was referred to a committee, who reported a scheme, in many respects, as it now stands. The clause, as to the mode of choice by electors, was carried, by the vote of nine states against two; that respecting the time, and place, and manner of voting of the electors, by ten states against one; that respecting the choice by the house of representatives, in case no choice was made by the people, by ten states against one.

§ 1450. One motive, which induced a change of the choice of the president from the national legislature, unquestionably was, to have the sense of the people operate in the choice of the person, to whom so important a trust was confided. This would be accomplished much more perfectly by committing the right of choice to persons, selected for that sole pupose at the particular conjuncture, instead of persons, selected for the general purposes of legislation. Another motive was, to escape from these intrigues and cabals, which would be promoted in the legislative body by artful and designing men, long before the period of the choice, with a view to accomplish their own selfish purposes. The very circumstance, that the body entrusted with the power, was chosen long before the presidential election, and for other general functions, would facilitate every plan to corrupt, or manage them. It would be in the power of an ambitious candidate, by holding out the rewards of office, or other sources of patronage and honour, silently, but irresistibly to influence a majority of votes; and thus, by his own bold and unprincipled conduct, to secure a choice, to the exclusion of the highest and purest, and most enlightened men in the country. Besides; the very circumstance of the possession of the elective power would mingle itself with all the ordinary measures of legislation. Compromises and bargains would be made, and laws passed, to gratify particular members, or conciliate particular interests; and thus a disastrous influence would be shed over the whole policy of the government. The president would, in fact, become the mere tool of the dominant party in congress; and would, before he occupied the seat, be bound down to an entire subserviency to their views. No measure would be adopted, which was not, in some degree, connected with the presidential election; and no presidential election made, but what would depend upon artificial combinations, and a degrading favouritism. There would be ample room for the same course of intrigues, which has made memorable the choice of a king in the Polish diet, of a chief in the Venetian senate, and of a pope in the sacred college of the Vatican.

§ 1451. Assuming that the choice ought not to be confined to the national legislature, there remained various other modes, by which it might be effected; by the people directly; by the state legislatures; or by electors, chosen by the one, or the other. The latter mode was deemed most advisable; and the reasoning, by which it was supported, was to the following effect. The immediate election should be made by men, the most capable of analyzing the qualities adapted to the station, and acting under circumstances favourable to deliberation, and to judicious combination of all the inducements, which ought to govern their choice. A small number of persons, selected by their fellow citizens from the general mass for this special object, would be most likely to possess the information, and discernment, and independence, essential for the proper discharge of the duty. It is also highly important to afford as little opportunity, as possible, to tumult and disorder. These evils are not unlikely to occur in the election of a chief magistrate directly by the people, considering the strong excitements and interests, which such an occasion may naturally be presumed to produce. The choice of a number of persons, to form an intermediate body of electors, would be far less apt to convulse the community with any extraordinary or violent movements, than the choice of one, who was himself the final object of the public wishes. And as the electors chosen in each state are to assemble, and vote in the state, in which they are chosen, this detached and divided situation would expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all convened at one time in one place. The same circumstances would naturally lessen the dangers of cabal, intrigue, and corruption, especially, if congress should, as they undoubtedly would, prescribe the same day for the choice of the electors, and for giving their votes throughout the United States. The scheme, indeed, presents every reasonable guard against these fatal evils to republican governments. The appointment of the president is not made to depend upon any pre-existing body of men, who might be tampered with beforehand to prostitute their votes; but is delegated to persons chosen by the immediate act of the people, for that sole and temporary purpose. All those persons, who, from their situation, might be suspected of too great a devotion to the president in office, such as senators, and representatives, and other persons holding offices of trust or profit under the United States, are excluded from eligibility to the trust. Thus, without corrupting the body of the people, the immediate agents in the election may be fairly presumed to enter upon their duty free from any sinister bias. Their transitory existence, and dispersed situation would present formidable obstacles to any corrupt combinations; and time, as well as means, would be wanting to accomplish, by bribery or intrigue of any considerable number, a betrayal of their duty. The president, too, who should be thus appointed, would be far more independent, than if chosen by a legislative body, to whom he might be expected to make correspondent sacrifices, to gratify their wishes, or reward their services. And on the other hand, being chosen by the voice of the people, his gratitude would take the natural direction, and sedulously guard their rights.

§ 1452. The other parts of the scheme are no less entitled to commendation. The number of electors is equal to [Volume 3, Page 559] the number of senators and representatives of each state; thus giving to each state as virtual a representation in the electoral colleges, as that, which it enjoys in congress. The votes, when given, are to be transmitted to the seat of the national government, and there opened and counted in the presence of both houses. The person, having a majority of the whole number of votes, is to be president. But, if no one of the candidates has such a majority, then the house of representatives, the popular branch of the government, is to elect from the five highest on the list the person, whom they may deem best qualified for the office, each state having one vote in the choice. The person, who has the next highest number of votes after the choice of president, is to be vice-president. But, if two or more shall have equal votes, the senate are to choose the vice-president. Thus, the ultimate functions are to be shared alternately by the senate and representatives in the organization of the executive department.

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§ 1454. The mode of election of the president thus provided for has not wholly escaped censure, though the objections have been less numerous than those brought against many other parts of the constitution, touching that department of the government.

§ 1455. One objection was, that he is not chosen directly by the people, so as to secure a proper dependence upon them. And in support of this objection it has been urged, that he will in fact owe his appointment to the state governments; for it will become the policy of the states, which cannot directly elect a president, to prevent his election by the people, and thus to throw the choice into the house of representatives, where it will be decided by the votes of states. Again, it was urged, that this very mode of choice by states in the house of representatives is most unjust and unequal. Why, it has been said, should Delaware, with her single representative, possess the same vote with Virginia, with ten times that number? Besides; this mode of choice by the house of representatives will give rise to the worst intrigues; and if ever the arts of corruption shall prevail in the choice of a president, they will prevail by first throwing the choice into the house of representatives, and then assailing the virtue, and independence of members holding the state vote, by all those motives of honour and reward, which can so easily be applied by a bold and ambitious candidate.

§ 1456. The answer to these objections has been already in a great measure anticipated in the preceding pages. But it was added, that the devolution of the choice upon the house of representatives was inevitable, if there should be no choice by the people; and it could not be denied, that it was a more appropriate body for this purpose, than the senate, seeing, that the latter were chosen by the state legislatures, and the former by the people. Besides; the connexion of the senate with the executive department might naturally produce a strong influence in favour of the existing executive, in opposition to any rival candidate. The mode of voting by states, if the choice came to the house of representatives, was but a just compensation to the smaller states for their loss in the primary election. When the people vote for the president, it is manifest, that the large states enjoy a decided advantage over the small states; and thus their interests may be neglected or sacrificed. To compensate them for this in the eventual election by the house of representatives, a correspondent advantage is given to the small states. It was in fact a compromise. There is no injustice in this; and if the people do not elect a president, there is a greater chance of electing one in this mode, than there would be by a mere representative vote according to numbers; as the same divisions would probably exist in the popular branch, as in their respective states.

§ 1457. It has been observed with much point, that in no respect have the enlarged and liberal views of the framers of the constitution, and the expectations of the public, when it was adopted, been so completely frustrated, as in the practical operation of the system, so far as relates to the independence of the electors in the electoral colleges. It is notorious, that the electors are now chosen wholly with reference to particular candidates, and are silently pledged to vote for them. Nay, upon some occasions the electors publicly pledge themselves to vote for a particular person; and thus, in effect, the whole foundation of the system, so elaborately constructed, is subverted. The candidates for the presidency are selected and announced in each state long before the election; and an ardent canvass is maintained in the newspapers, in party meetings, and in the state legislatures, to secure votes for the favourite candidate, and to defeat his opponents. Nay, the state legislatures often become the nominating body, acting in their official capacities, and recommending by solemn resolves their own candidate to the other states. So, that nothing is left to the electors after their choice, but to register votes, which are already pledged; and an exercise of an independent judgment would be treated, as a political usurpation, dishonourable to the individual, and a fraud upon his constituents.

§ 1458. The principal difficulty, which has been felt in the mode of election, is the constant tendency, from the number of candidates, to bring the choice into the house of representatives. This has already occurred twice in the progress of the government; and in the future there is every probability of a far more frequent occurrence. This was early foreseen; and, even in one of the state conventions, a most distinguished statesman, and one of the framers of the constitution, admitted, that it would probably be found impracticable to elect a president by the immediate suffrages of the people; and that in so large a country many persons would probably be voted for, and that the lowest of the five highest on the list might not have an inconsiderable number of votes. It cannot escape the discernment of any attentive observer, that if the house of representatives is often to choose a president, the choice will, or at least may, be influenced by many motives, independent of his merits and qualifications. There is danger, that intrigue and cabal may mix in the rivalries and strife. And the discords, if not the corruptions, generated by the occasion, will probably long outlive the immediate choice, and scatter their pestilential influences over all the great interests of the country. One fearful crisis was passed in the choice of Mr. Jefferson over his competitor, Mr. Burr, [Volume 3, Page 560] in 1801, which threatened a dissolution of the government, and put the issue upon the tried patriotism of one or two individuals, who yielded from a sense of duty their preference of the candidate, generally supported by their friends.

§ 1459. Struck with these difficulties, it has been a favourite opinion of many distinguished statesmen, especially of late years, that the choice ought to be directly by the people in representative districts, a measure, which, it has been supposed, would at once facilitate a choice by the people in the first instance, and interpose an insuperable barrier to any general corruption or intrigue in the election. Hitherto this plan has not possessed extensive public favour. Its merits are proper for discussion elsewhere, and do not belong to these Commentaries.

§ 1460. The issue of the contest of 1801 gave rise to an amendment of the constitution in several respects, materially changing the mode of election of president. In the first place it provides, that the ballots of the electors shall be separately given for president and vice-president, instead of one ballot for two persons, as president; that the vice-president (like the president) shall be chosen by a majority of the whole number of electors appointed; that the number of candidates, out of whom the selection of president is to be made by the house of representatives, shall be three, instead of five; that the senate shall choose the vice-president from the two highest numbers on the list; and that, if no choice is made of president before the fourth of March following, the vice-president shall act as president.

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§ 1462. This amendment has alternately been the subject of praise and blame, and experience alone can decide, whether the changes proposed by it are in all respects for the better, or the worse. In some respects it is a substantial improvement. In the first place, under the original mode, the senate was restrained from acting, until the house of representatives had made their selection, which, if parties ran high, might be considerably delayed. By the amendment the senate may proceed to a choice of the vice-president, immediately on ascertaining the returns of the votes. In the next place, under the original mode, if no choice should be made of a president by the house of representatives until after the expiration of the term of the preceding officer, there would be no person to perform the functions of the office, and an interregnum would ensue, and a total suspension of the powers of government. By the amendment, the new vice-president would in such case act as president. By the original mode, the senate are to elect the vice-president by ballot; by the amendment, the mode of choice is left open, so that it may be vivâ voce. Whether this be an improvement, or not, may be doubted.

§ 1463. On the other hand, the amendment has certainly greatly diminished the dignity and importance of the office of vice-president. Though the duties remain the same, he is no longer a competitor for the presidency, and selected, as possessing equal merit, talents, and qualifications, with the other candidate. As every state was originally compelled to vote for two candidates (one of whom did not belong to the state) for the same office, a choice was fairly given to all other states to select between them; thus excluding the absolute predominance of any local interest, or local partiality.

§ 1464. In the original plan, as well as in the amendment, no provision is made for the discussion or decision of any questions, which may arise, as to the regularity and authenticity of the returns of the electoral votes, or the right of the persons, who gave the votes, or the manner, or circumstances, in which they ought to be counted. It seems to have been taken for granted, that no question could ever arise on the subject; and that nothing more was necessary, than to open the certificates, which were produced, in the presence of both houses, and to count the names and numbers, as returned. Yet it is easily to be conceived, that very delicate and interesting inquiries may occur, fit to be debated and decided by some deliberative body. In fact, a question did occur upon the counting of the votes for the presidency in 1821 upon the re-election of Mr. Monroe, whether the votes of the state of Missouri could be counted; but as the count would make no difference in the choice, and the declaration was made of his reelection, the senate immediately withdrew; and the jurisdiction, as well as the course of proceeding in a case of real controversy, was left in a most embarrassing situation.

§ 1465. Another defect in the constitution is, that no provision was originally, or is now made, for a case, where there is an equality of votes by the electors for more persons, than the constitutional number, from which the house of representatives is to make the election. The language of the original text is, that the house shall elect "from the five highest on the list." Suppose there were six candidates, three of whom had an equal number; who are to be preferred? The amendment is, that the house shall elect "from the persons having the highest numbers, not exceeding three." Suppose there should be four candidates, two of whom should have an equality of votes; who are to be preferred? Such a case is quite within the range of probability; and may hereafter occasion very serious dissensions. One object in lessening the number of the persons to be balloted for from five to three, doubtless was, to take away the chance of any person having very few votes from being chosen president against the general sense of the nation. Yet it is obvious now, that a person having but a very small number of electoral votes, might, under the present plan, be chosen president, if the other votes were divided between two eminent rival candidates; the friends of each of whom might prefer any other to such rival candidate. Nay, their very hostility to each other might combine them in a common struggle to throw the final choice upon the third candidate, whom they might hope to control, or fear to disoblige.

§ 1466. It is observable, that the language of the constitution is, that "each state shall appoint in such manner, as the legislature thereof may direct," the number of electors, to which the state is entitled. Under this authority the appointment of electors has been variously provided for by the state legislatures. In some states the legislature have directly chosen the electors by themselves; in others they have been chosen by the people by a general ticket throughout the whole state; and in others by the people in electoral districts, fixed by the legislature, a certain number of electors being apportioned to each district. No question has ever arisen, as to the constitutionality of either mode, except that of a direct choice by the legislature. But this, though often doubted by able and ingenious minds, has been firmly established in practice, ever since the adoption of the constitution, and does not now seem to admit of controversy, even if a suitable tribunal existed to adjudicate upon it. At present, in nearly all the states, the electors are chosen either by the people by a general ticket, or by the state legislature. The choice in districts has been gradually abandoned; and is now persevered in, but by two states. The inequality of this mode of choice, unless it should become general throughout the Union, is so obvious, that it is rather matter of surprise, that it should not long since have been wholly abandoned. In case of any party divisions in a state, it may neutralize its whole vote, while all the other states give an unbroken electoral vote. On this account, and for the sake of uniformity, it has been thought desirable by many statesmen to have the constitution amended so, as to provide for an uniform mode of choice by the people.

§ 1467. The remaining part of the clause, which precludes any senator, representative, or person holding an office of trust or profit under the United States, from being an elector, has been already alluded to, and requires little comment. The object is, to prevent persons holding public stations under the government of the United States, from any direct influence in the choice of a president. In respect to persons holding office, it is reasonable to suppose, that their partialities would all be in favour of the reelection of the actual incumbent, and they might have strong inducements to exert their official influence in the electoral college. In respect to senators and representatives, there is this additional reason for excluding them, that they would be already committed by their vote in the electoral college; and thus, if there should be no election by the people, they could not bring to the final vote either the impartiality, or the independence, which the theory of the constitution contemplates.

The Founders' Constitution
Volume 3, Article 2, Section 1, Clauses 2 and 3, Document 11
The University of Chicago Press

Story, Joseph. Commentaries on the Constitution of the United States. 3 vols. Boston, 1833.

© 1987 by The University of Chicago
All rights reserved. Published 2000