Article 2, Section 1, Clauses 2 and 3

Document 7

Senate, Electoral College

Mr. C. Pinckney, of South Carolina, . . . remembered very well that in the Federal Convention great care was used to provide for the election of the President of the United States, independently of Congress; to take the business as far as possible out of their hands. The votes are to be given by Electors appointed for that express purpose, the Electors are to be appointed by each State, and the whole direction as to the manner of their appointment is given to the State Legislatures. Nothing was more clear to him than that Congress had no right to meddle with it at all; as the whole was entrusted to the State Legislatures, they must make provision for all questions arising on the occasion.

Mr. Baldwin, of Georgia . . . must say, for himself, that he did not agree that the present provisions on this subject were so defective and absurd as had been represented. His general respect for those who had gone before him in this House, and especially for the venerable assembly of the most experienced statesmen of the country by whom the Constitution had been formed, forbade him to entertain the belief that this subject, which is the strong feature that characterizes this as an Elective Government, could have been till now so entirely out of sight and neglected. Gentlemen appeared to him, from their observations, to forget that the Constitution in directing Electors to be appointed [Volume 3, Page 554] throughout the United States equal to the whole number of the Senators and Representatives in Congress, for the express purpose of entrusting this Constitutional branch of power to them, had provided for the existence of as respectable a body as Congress, and in whom the Constitution on this business has more confidence than in Congress. Experience had proved that a more venerable selection of characters could not be made in this country than usually composed that electoral body. And what are the questions which can arise on the subject entrusted to them to which they are incompetent, or to which Congress is so much more competent? The questions which present themselves seem to be:

1. Those which relate to the elections, returns and qualifications, of their own members. Shall these be taken away from that body, and submitted to the superior decision and control of Congress, without a particle of authority for it from the Constitution?

2. The legality or constitutionality of the different steps of their own proceedings, as, whether they vote for two persons both of the same state; whether they receive votes for a person under thirty-five years of age, or one who has not been fourteen years a citizen of the United States &c. It is true they, as well as any other Constitutional branch of this Government acting under that instrument, may be guilty of taking unconstitutional or corrupt steps, but they do it at their peril. Suppose either of the other branches of the Government, the Executive or the Judiciary, or even Congress, should be guilty of taking steps which are unconstitutional, to whom it is submitted, or who has control over it, except by impeachment? The Constitution seems to have equal confidence in all the branches on their own proper ground, and for either to arrogate superiority, or a claim to greater confidence, shows them in particular to be unworthy of it, as it is in itself directly unconstitutional.

3. The authentication of their own acts. This would seem to be as complete in them, as in either of the other branches of the Government. Their own authentication of their act finishes the business entrusted to them. It is true this must be judged of by the persons who are concerned in carrying it into execution; as in all laws and official acts under this Government, they to whom they are directed, and who are to be bound by them, must judge, and judge at their peril, whether they are duly authenticated or whether they are only a forgery.

If this be the just view of the subject, (and he could see no other which did not involve inextricable difficulties,) it leaves no possible question for the Senators and Representatives, when met together to count the votes agreeably to the Constitution, but to judge of the authentication of the act of the Electors, and then to proceed and count the votes as directed. If this body of the Electors of all the States had been directed by the Constitution to assemble in one place, instead of being formed into different Electoral colleges, he took it for granted none of the questions on which this resolution had been brought forward, would have occurred; every one would have acknowledged that they were to be settled in that assembly. It having been deemed more safe by the Constitution to form them into different Electoral colleges, to be assembled in the several States, does not at all alter the nature or distinctness of their powers, or subject them any more to the control of the other departments of the Government.

He observed further, on the other points to which gentlemen had spoken, that if such radical and important changes were to be made on this subject, as seemed to be in contemplation under this resolution, he thought they must be made by proposing an amendment to the Constitution to that effect; and that they could not be made by law, without violating the Constitution. He did not agree with the gentleman from Massachusetts, (Mr. Dexter,) that the clause at the close of the 8th section of the Constitution, which gives to Congress power to pass all laws necessary and proper to carry into effect the foregoing powers of that section, and all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof, could be extended to this case; that speaks of the use of the powers vested by the Constitution--this resolution relates to the formation of a competent and essential part of the Government itself: that speaks of the movements of the Government after it is organized; this relates to the organization of the Executive branch, and is therefore clearly a Constitutional work, and to be done, if at all, in the manner pointed out by the Constitution, by proposing an article of amendment to the Constitution on that subject. His own opinion, however, was, what he had before stated, that the provisions on this subject were already sufficient; that all the questions which had been suggested were as safely left to the decision of the assemblies of Electors, as of any body of men that could be devised; and that the members of the Senate and of the House of Representatives, when met together in one room, should receive the act of the Electors as they would the act of any other Constitutional branch of the Government, to judge only of its authentication, and then to proceed to count the votes, as directed in the second article of the Constitution.

The Founders' Constitution
Volume 3, Article 2, Section 1, Clauses 2 and 3, Document 7
http://press-pubs.uchicago.edu/founders/documents/a2_1_2-3s7.html
The University of Chicago Press

Annals of Congress. The Debates and Proceedings in the Congress of the United States. "History of Congress." 42 vols. Washington, D.C.: Gales & Seaton, 1834--56.