Federalist No. 78, Part II: Context, contd.

Granting that there were a great many factors – political, cultural, philosophical, and economic – that helped to direct the course of the American Revolution and influenced the particular expression of republicanism that emerged from within the same, the evident impasse between the claimed supremacy of the British Parliament and the claimed inviolability of the colonial charters almost certainly played a significant role in shaping the way citizens of the United States believed government ought to function. Having grown accustomed to the use of said charters, for example, pro-revolutionary Americans took the unusual step – for the 18^th century – of drafting constitutions for their newly-independent states between the years 1776 and 1780. And while these early constitutions took on many different forms and arrangements – some hewed quite closely to the charters that they replaced, while others adopted radically innovative structures – they almost all had several key characteristics in common. The first was that they derived their legitimacy from the people they were intended to affect. In consequence, every aspect of the resulting state governments – from the legislature, to the executive, to the courts – was directly or indirectly responsible to the people of the various states. This quite significantly set the state governments apart from the British government, within which only Parliament – as opposed to the courts or the Crown – was held to represent the will of the general population. As a result, while the legal supremacy of the British Parliament evolved as means of guarding the rights of the people against the authority of non-representative government entities or institutions, the citizens directly affected by the various pro-revolutionary American state constitutions required no such protection. Their collective will was embodied by the legislature, the executive, and the courts alike, and all were bound by the terms of the relevant governing document.  

The second aspect shared by nearly all of the early American state constitutions was that they were each, in some way or other, limited documents. That is to say, the text thereof placed specific limitations on what the relevant institutions of government could and could not do. In most cases these limitations took the form of a bill or charter of rights, the codification of which was intended to secure certain paramount protections against potential encroachment or violation. The Virginia Bill of Rights, for example, guaranteed freedom of the press and trial by jury and prohibited excessive bail and cruel and unusual punishment, while the equivalent addendum to Pennsylvania’s 1776 constitution declared that freedom of religion and the right to bear arms were similarly inalienable. Sharp-eyed readers will no doubt have noticed that these protections are very similar to some of those first codified by the English Bill of Rights of 1689, and may thus be given to wonder whether or not the 18^th century British Constitution could also be considered a limited document. In point fact, it cannot. Whereas the guarantees cited above were written into the constitutions of the relevant states, the Bill of Rights was – and is – simply an Act of Parliament. In consequence, Parliament may freely alter, repeal, or abrogate the Bill of Rights and its various provisions simply by passing further legislation to the contrary. Furthermore, the Bill of Rights was never intended to restrain the authority or privileges of Parliament itself. Adopted into law at the conclusion of perhaps the most violent century in the history of English politics, the Bill was meant to place clear restrictions on the ability of the Crown to exercise its claimed prerogatives in opposition to the customary rights of either the people or their elected representatives.

The early state governments of the Revolutionary era were therefore quite unusual within the realm of 18^th century Anglo-American political culture. Unlike the British Constitution, which was alterable by Parliament at any time – and thus could not restrict the same authority from passing whatever laws it cared to – almost all of the state constitution placed some manner of restrictions on what the relevant institutions of government could accomplish. Under the terms of its 1776 constitution, the government of Pennsylvania could not require the citizens thereof to profess or support a particular religious observance. Likewise, the government of Virginia was prohibited from imperilling the ability of any individual or organization form printing or distributing whatever information they wished. Not only did these kinds of codified protections quite clearly set the style of republicanism favored by pro-revolutionary Americans apart from the Parliament-centered model of their British forebears, but their existence embodied a comparatively novel understanding of authority and accountability in government. If the various state governments were to be explicitly prohibited from taking certain kinds of actions, some mechanism would need to be put in place to provide the necessary oversight and restraint. Because neither legislatures nor executives could be depended on to police themselves, and because the associated task of measuring statutes against a core text was fundamentally a matter of law, the task would seem to inevitably devolve upon the state judiciary.

On that note, it would appear a worthwhile proposition to conclude this extended introduction to Federalist No. 78 by taking a moment to examine some of the ways that the various state constitutions structured their respective judicial branches. In fashioning a federal judiciary – something which, under the Articles of Confederation, simply didn’t exist – the various delegates to the Philadelphia Convention were doubtless inclined to see the corresponding models adopted by their homes states as potential inspiration. Let us therefore take up our customary representative sample and attempt to discern exactly what post-Revolutionary Americans had come to expect of their high courts as of the late 1780s.

Of note upon examining the constitutions of Massachusetts, Maryland, Georgia, Pennsylvania, New York, and South Carolina that were in force as of 1788 is how little space these documents seem to dedicate to describing the composition, powers, and jurisdictions of their respective high courts. The 1777 constitution of New York, for instance, does little more than mention the names of its supreme judicial bodies – the Supreme Court and the Court of Chancery. The twenty-fourth article of said document declared that the Chancellor – the head of the Court of Chancery – and the judges of the Supreme Court were to, “Hold their offices during good behavior or until they shall have respectively attained the age of sixty years [,]” while the twenty-third article directed that these same offices be appointed by the majority vote of a specially-formed Council of Appointment, composed of one Senator from every electoral district and presided over by the Governor. Save for some additional provisions located in the thirty-second article for the trial of impeachments, no further direction was provided. South Carolina’s 1778 constitution was similarly sparse in its description of the Palmetto State’s court system. Article twenty refers to “Either of the courts of justice [,]” seemingly indicating that there were two high courts of consequence. One, the Court of Chancery, is mentioned in articles twenty-four and twenty-seven, while another, the Court of Admiralty, is briefly noted in article twenty-five. The aforementioned article twenty-seven also declared that all judicial officers besides justices of the peace, “Shall be chosen by ballot jointly by the senate and house of representatives,” and that service – save for justices of the Court of Chancery – would be during good behavior, “But shall be removed on address of the senate and house of representatives.”    

Georgia’s 1777 constitution provided only slightly more detail as to the form and function of that state’s high courts. Article forty contained the only reference to a Supreme Court, to be comprised of a Chief Justice and three additional justices drawn from the county court of whichever locality played host to the relevant suit. To that, article forty-four added a provision for forming an ad-hoc admiralty court, for the trying of, “Captures, both by sea and land […] in the county where such shall be carried in [,]” and to be presided over by the aforementioned Chief Justice. Nowhere was it otherwise explained how the Chief Justice was to selected, on what terms they were to serve, or the extent of the Supreme Court’s jurisdiction. The Constitution of Massachusetts, in spite of its remarkable structure and detail – compared to the contemporary governing documents of most other states, certainly – appeared similarly unconcerned with such details. In spite of devoting an entire named subsection to the “Judiciary Power” of the Bay State, said document did little more than explain that, “All judicial officers, duly appointed, commissioned and sworn, shall hold their offices during good behavior,” with the caveat that, “the governor, with consent of the council, may remove them upon the address of both houses of the legislature.” It was meanwhile left to article nine of the subsection describing the powers of the state’s chief executive to set forth the process by which officers of the court were to be chosen – i.e. by the Governor, with the “advice and consent” of an executive council.

Pennsylvania’s radical 1776 constitution hardly devoted much more attention to the essential character of that state’s high courts, though it managed with concision to convey more than most did at length. Section twenty declared that the President of the Executive Council – in effect the Governor of the Keystone State – would, along with a quorum of at least five of their fellow councillors, possess the right to, “Appoint and commissionate [sic] judges, naval officers, judge of the admiralty, attorney general and all other officers, civil and military, except such as are chosen by the general assembly or the people [.]” Section twenty-three further decreed that justices of the Supreme Court of Judicature – the state’s highest court – would be, “Commissioned for seven years only, though capable of re-appointment at the end of that term, but removable for misbehaviour at any time by the general assembly [,]” while section twenty-four authorized said Supreme Court, “And the several courts of common pleas of this commonwealth,” to exercise, “the powers of a court of chancery,” as it related to a number of fairly common writs and procedures. Of note in the latter section was a description of the named judicial bodies as possessing, “The powers usually exercised by such courts [.]” While, on the surface, this might seem like distressingly vague verbiage to be included in a written constitution, it was certainly not out of keeping with the way most other states seemed to approach the structure and responsibilities of their own high courts.

Of those examples here examined, the 1776 constitution of Maryland went to the greatest lengths by far to provide a fairly clear and unambiguous outline of that state’s highest judicial authorities. Indeed, so apparently concerned were its framers that their intention not be mistaken that they determined to include a kind of statement of intent within the completed document’s introductory Declaration of Rights. “That the independency and uprightness of Judges [,]” stated the relevant clause,

Are essential to the impartial administration of Justice, and a great security to the rights and liberties of the people; wherefore the Chancellor and Judges ought to hold commissions during good behaviour; and the said Chancellor and Judges shall be removed for misbehaviour, on conviction in a court of law, and may be removed by the Governor, upon the address of the General Assembly [.]

The practice of allowing judges to serve during good behavior was further reiterated in article forty of the constitution proper, while article forty-eight delegated the power of appointing the same to the Governor, “With the advice and consent of the Council [.]” Article fifty-six, meanwhile, provided an integral note on the actual structure of the courts in question, as well as their relative jurisdictions. “That there be a Court of Appeals,” it first declared, “composed of persons of integrity and sound judgment in the law, whose judgment shall be final and conclusive, in all cases of appeal, from the General Court, Court of Chancery, and Court of Admiralty [.]”

This clause alone arguably provides more substantive detail as to the practical hierarchy of the relevant courts than any of the other state constitutions herein examined. By its terms, the Court of Appeals was to function as the state’s highest court, with the General Court below it and the Courts of Chancery and Admiralty presumably handling the duties accustomed to such bodies – writs and maritime law, respectively – within the Common Law tradition. Were this not enough, article fifty-six further declared that one person, possessed of, “Integrity and sound judgement in the law [,]” was to be appointed Chancellor – the highest judicial officer in the state – while a further three people, possessed of similar personal qualities, were to be appointed judges of the General Court. Said court, it was further explained, “Shall sit on the western and eastern shores, for transacting and determining the business of the respective shores, at such times and places as the future Legislature of this State shall direct and appoint.” Thus, with admirable economy, the framers of Maryland’s inaugural constitution not only provided an unambiguous outline for the physical composition of the two highest courts in the state, but they even denoted – granting, of course, the state legislature the discretion that was its due – the general jurisdiction of the General Court itself. 

Without knowing exactly why the men behind the Old Line State’s first constitution thought to delve into such detail – certainly compared to a number of their contemporaries – their efforts most definitely make it a great deal easier to discern exactly what post-revolutionary Americans expected of their relevant judiciary authority. Combined with what scant details can be gleaned from the other state constitutions discussed herein, a number of observations would seem to occur. First and perhaps foremost, it would seem that service during good behavior was very much the standard tenure in office for high court justices during the post-Revolutionary period. Of the six state constitutions here examined, four (New York, Massachusetts, Maryland, and South Carolina) recognized this practice, one (Georgia) made no mention of any term of service, and one (Pennsylvania) decreed that justices stand for re-appointment every seven years. Granting that Pennsylvania’s constitution was particularly exceptional among the governing documents of its sister states, and that Georgia’s omission should not necessarily be read as a denial, it would appear that the tradition of life tenure first extended to justices in England by the Act of Settlement (1701) remained one of the cornerstones of the emerging independent American jurisprudence. The aforementioned article of the Maryland Declaration of Rights seems in particular to speak to this sentiment – by reiterating the same basic contention that the earlier British statute first introduced into law, it effectively testified to the degree of consistency still to be found in contemporary Anglo-American legal culture. Whether as colonies or as independent states, it seemed, late 18^th century American were more or less decided as to the importance of such principles as judicial independence.

The finer details of court structure, judicial hierarchy, and appointment procedures, on the other hand, seemed far more amenable to innovation. While, of the six constitutions under consideration, five (New York, Georgia, Pennsylvania, Massachusetts, and Maryland) made explicit mention of either a “Supreme Court” or a “Court of Appeals” as the highest statewide judicial body, three (New York, South Carolina, and Maryland) named a “Court of Chancery” as a supplementary judicial body, two (South Carolina and Maryland) made provision for a “Court of Admiralty, and only one (Maryland) discussed the existence of a “General Court” separate from the Supreme, Chancery, or Admiralty Courts. While all of these different types of courts were common to either the English/British legal tradition or to the forms and procedures practised in the pre-Revolutionary colonies, there seemed to be little if any agreement among the newly-independent states as to which specific set of legal institutions best served the general public. Some, like Pennsylvania, adopted a fairly streamlined judicial apparatus – a single statewide supreme court with chancery jurisdiction as needed – while others, like Maryland, opted to at least partially replicate the more complex system of high courts – a supreme court above, general court below, and chancery and admiralty courts in the wings – then operating in contemporary Great Britain. While this circumstance is perhaps not all that surprising – Americans, in that moment, being in many ways stretched between the twin poles of risk-laden innovation and stable precedent – it does make it difficult to account for any single set of shared expectations as to the structure, authority, and purpose of a high court.

The various procedures by which state governments in the 1780s determined to appoint their various judicial officers presents a similar image of manifest inconsistency. New York’s 1777 constitution, for instance, created a special body, the aforementioned Council of Appointment, for the purpose of commissioning cabinet officers, magistrates, mayors, and judges. In practice, this committee – comprised of the Governor and one senator from each of the state’s four upper house districts – saw its chairman put forth nominees and its regular members accept or reject them. The 1780 constitution of Massachusetts also gave authority over judicial appointments the Governor and a small body of advisors, directing that the relevant executive council was to comprise a quorum of at least five state senators. That being said, it was also possible that all forty senators mandated by the constitution could be asked to provide advice and consent on judicial appointments, thus creating a dynamic closer to that which presently exists between the President of the United States and the U.S. Senate. Pennsylvania also left the selection and commissioning of judges to its chief executive – i.e. the President – and their councillors, though every member of the twelve-person body was to be popularly elected. While Maryland’s 1776 constitution likewise decreed that governor and council would make all appointments to the judicial branch of the state government, it also differed from New York, Pennsylvania, and Massachusetts by providing that its five executive councillors be selected by a joint-ballot of the state legislature. South Carolina’s 1778 constitution also adopted a joint-ballot of the state legislature as a mechanism of key decision-making, though it turned it directly upon the appointment of judicial officers rather than at councillors who would in turn vote on judicial nominees. Georgia’s 1777 constitution, meanwhile, made no mention whatsoever of how judges were to be appointed or by whom.

An obvious consequence of these varied appointment procedures would seem to be, as above, the emergence of very different expectations as to the ideal or even normal relationships between the relevant state executive, legislature, high court, and general population. While New York’s Council of Appointment may have succeeded in creating a potentially beneficial sense of separation between the legislative and judicial branches, it was also prone to deadlock in the event that the nominating officer (the Governor) and the voting members (the chosen state senators) came from different parties. Knowledge of such disagreements doubtless fuelled a sense of cynicism among public servants and voters alike, thus lending judicial appointments – among others – a more partisan character than was perhaps wholly desirable. The contemporary citizens of Pennsylvania, meanwhile, could rest comparatively easy in the knowledge that they themselves chose the councillors who in turn filled the ranks of the Supreme Court of Judicature. This gave them an almost unparallelled degree of influence over the character of the Keystone State’s high court, which in turn undoubtedly conditioned what the average Pennsylvanian believed to be the proper dynamic between judicial authorities and the people whose lives their verdicts affected. The other state constitutions herein examined arguably fell somewhere on a spectrum between these two extremes – some tended towards greater executive input, thus painting judicial appointments as a distinctly elite responsibility, while others favored legislative discretion, no doubt leading to a more popular understanding of what characterized the ideal officer of a state’s high court. In short, as with the structure of their respective judiciaries, there seemed to exist no solid consensus among the states in the 1780s as to whom high court justices owed their office, which branch of government ought to most closely shape the relevant state’s jurisprudence, and what, if any, input the average voter was to enjoy.     

Before concluding – with, it would seem, something like a shrug – it is almost certainly worth acknowledging two final points. The first would seek to address the noted vagueness with which the state constitution discussed in this entry characterized their respective judicial authorities. For whatever reason – perhaps because they regarded them as the least monarchical branch of their existing governments – many of the colonies-cum-states declined to significantly alter their existing court systems when they transitioned to independence from Great Britain in the 1770s. The New York Court of Chancery, for instance, whose existence was acknowledged and supported by that state’s 1777 constitution, was actually established in 1701 under the authority of the then-Province of New York’s royal governor. The Court of Chancery, and the attendant office of Chancellor, would go on to exist for a further one hundred and forty-six years, in the meantime exerting a powerful influence upon the jurisprudence and legal culture of the Empire State. Similarly, the 1776 constitution of Maryland decreed that the existing Provincial Court – established at some point between the late 1630s and early 1640s – would continue to function under the name of the General Court, with its justices appointed yet still by the Governor and their councillors. While these represent some of the more prominent examples from among the original thirteen states, they were far from the only high courts that had been carried over from the colonial era with only moderate alteration. Late 18^th century Americans, it seemed, were not particularly interested in redefining how their high courts functioned or the role they fulfilled within the context of codified government.  

An inevitable consequence of this evident lack of interest in judicial innovation would almost certainly have been a greater reliance on precedent than in matters legislative or executive. Unlike the relevant governors, presidents, state senates and assemblies, quite a number of the high courts named in the various state constitutions of the 1770s were direct continuations of existing institutions. As a result, the bodies of law that had been built up during the colonial era – stretching back, in some cases, over a century – as well as the accumulated procedures, customs, and practical norms, would have continued to apply to all legal proceedings undertaken in the various states. For example, though the justices of Pennsylvania’s Supreme Court of Judicature were, unlike their executive-appointed predecessors, elected to serve seven year terms, every ruling made by the former continued to take account of and build upon the verdicts handed down by the latter. Not only was this was very much in keeping with the logic of common law jurisprudence – a tradition rooted in adherence to convention and rejection of originality – which most Revolutionary Americans continued to think of as their birthright, but it also constituted perhaps the most enduring link between the emerging American style of republican government and the seemingly-rejected English mode of parliamentary government. It would also seem to suggest that if the citizens of the various Americans states that existed as of the late 1780s shared any single expectation as concerned their high courts, it was most likely a degree of consistency and stability.

A second point worth paying heed to – whose significance will become increasingly obvious as this series progresses – is the manner by which the various early states constitutions came into force. Of the original thirteen, two (Connecticut and Rhode Island) chose to retain their original colonial charters upon declaring independence in 1776. In consequence, during the period of time that said charters remained in force – until 1818 in Connecticut, and until 1842 in Rhode Island – they were both the paramount law of their respective states and the only American constitutions whose legitimacy was arguably derived from convention and tradition rather than popular approval. Massachusetts, meanwhile, was the only state whose constitution was drafted by a convention called specifically to do so, and theirs the only constitution that was ratified by the general population of said state. The Bay State’s 1780 constitution – still in force today – could therefore quite fairly claim to represent the collective will of the people of Massachusetts, beholden to and alterable by them alone. Every other state, from New Hampshire to Georgia, saw its inaugural constitution drafted by the relevant provisional legislature and passed into law by a standard vote therein. As a result, the constitutions of said states were treated during their existence as if they were normal statutes that could be altered at will by the same body that had originally given them force. Thus, for instance, the state legislature of New York could lawfully determine to ignore or abridge any article or clause of that state’s 1777 constitution. As the state legislature was the legal successor of the pro-Revolutionary Provincial Congress, and the Provincial Congress had drafted and ratified the selfsame constitution, the former maintained the right to alter or abolish what, for all intents and purposes, it had itself created.

This fact, and those others cited above, bears particularly upon the topic of high courts in the post-Revolutionary United States and the expectations thereof because of what it implies about the relationship between the general public, their government, and their constitution. Whereas the people of Massachusetts could have reasonably expected that they themselves were the only authority that could make alterations to the Bay State’s constitution, and whereas the citizens of Connecticut and Rhode Island seemed to regard even their post-independence state governments as being beholden to their ancient royal charters, most Americans in the 1780s lived in political communities that recognized their respective legislature as the highest power therein. Chief executives could not contain them – a number, in fact, were appointed by joint-ballots of the appropriate upper and lower houses. High courts could not check their authority – possessing the ability to alter the constitution at will, legislatures could empower or enfeeble judicial institutions as they saw fit. However tenuous an arrangement this might now seem – as, indeed, it seemed to a number of contemporary observers – it was very much the norm in the post-Revolutionary United States, and most definitely conditioned what Americans in the late 1780s had come to expect from constitutional government.

Federalist No. 78, Part I: Context

Something occurred to me the other day.

 In spite of the attention that certain institutions within the United States government as rule seem to enjoy - in spite of how much time and energy pundits and partisans seem to expend monitoring them, attempting to predict their actions, or developing strategies around them - these same institutions are not always very well understood. Take the Electoral College as a case in point. Party tacticians and political commentators have come to rely on it behaving a certain way. They create predictive maps, and run through the possible effects of media buys and campaign stops, and in many cases spend their entire careers attempting to determine how best to bend the system to a particular outcome. And yet, nearly without fail, every four years the purpose and the efficacy of the Electoral College are called into question. For every person who sings its praises, and claims that it represents the unquestionable will of the Framers of the Constitution, another will describe it as a meaningless complication of the democratic process that demands either reform or nullification. The Supreme Court, I think, occupies much the same popular mind-space. Its rulings are either praised or reviled, its role either championed or denigrated. Some acclaim its members as the selfless arbiters of the United States Constitution, while others castigate them for presuming to substitute their own will for that of the American people's elected representatives. This latter cohort asks probing questions: Who are these nine black-robed eminences? What gives them the right to decide what is and is not law? If the United States really is a democracy, why aren’t they elected?        

    Being able to answer these kinds of inquires in anything like a definitive way would seem like an essential first step in having a constructive discussion about the role of the federal judiciary and whether or not it continues to fulfill a useful purpose in American life. As it stands, its supporters and detractors seem intent on talking past each other. They lack a framework of consensus that might otherwise provide structure to their debate. This is, to say the least, a distressing state of affairs. After all, without a shared premise – an agreed-upon description of the ideal role of the United States Supreme Court – the door may well be opened the destructive contortion of the federal judiciary from non-partisan legal arbiter to tool of majoritarian tyranny. Luckily, there are resources of which the American people can avail themselves that have long served to provide a sense of clarity and focus to discussions of deep constitutional significance. I speak, of course, of the Federalist Papers – those indispensable policy essays, penned by some of the finest minds from among the Founding Generation, which collectively explore and explain at length just about every aspect of the pre-amendment United States Constitution. In particular, I mean to draw the attention of my readers to Federalist No. 78, written by the redoubtable Alexander Hamilton with the intention of answering some of the criticisms leveled by Anti-Federalist pamphleteers at the federal judiciary that the Framers had designed. No. 78 answers many of the questions posed above, and in so doing demonstrates a degree of relevance to the political discourse of the 21^st century that belies its publication date over two hundred years past.

Though brief – clocking in at just twenty-one paragraphs – and in fact only the first of six essays – Nos. 78 to 83 – Hamilton wrote on the topic of the federal judiciary, No. 78 nevertheless provides essential insight into the role that the Framers originally intended the Supreme Court to fulfill. In it, Hamilton discussed the need for Justices to hold life tenure – i.e. service during good behavior – the logic of judicial review, and the reasons he felt it was necessary to make the Court a co-equal branch of the federal government. Because these qualities are absolutely foundational to the way that the Court functions, and have also been some of the focus points of popular debate on the subject, No. 78 may fairly be characterized as a kind of primer on the role of the Supreme Court, the reason for its existence, and the intentions of its creators. In addition, because this same essay makes reference to some of the precedents – British and American alike – upon which the concept of a national judiciary was based, it may also be seen as further evidence of the complex origins – intellectually, politically, and socially – of American republican government. Federalist No. 78, if read aloud on the floor of the United States Senate or distributed as handbills to every citizen and permanent resident, may not quell recurrent debates about which touchy social topics the Supreme Court should or should not address, the extent of its authority, or the procedures under which it operates. But at the very least, familiarity with the text therein may at least serve to settle once and for all debate over why the Court exists and what its creators were thinking when they designed it.

But let’s back off a moment and make a few things clear before we proceed.

Because this series has already provided, at various points, a reasonably detailed biography of Alexander Hamilton and an explanation of the purpose and effect of the Federalist Papers, it would seem of little use to reiterate here anything but the most essential points. To that end, it ought to be noted that Federalist No. 78 was originally published on May 28^th, 1788 in the state of New York, that eight of the requisite nine states had at that point ratified the Constitution, and that Hamilton was at that time a practicing lawyer and a member of the New York State Assembly. He was chosen, along with fellow New Yorkers Robert Yates (1738-1801) and John Lansing, Jr. (1754-1829) to attend the Philadelphia Convention in the spring of 1787, and once his colleagues departed in protest of what was being discussed – Yates and Lansing did not feel that the Convention had the right to recommend a new form of government for the United States – became the Empire State’s sole representative in the ongoing discussions. In spite of the freedom such a position would seem to entail, however, Hamilton’s contributions to the finished draft of the Constitution were relatively limited. His various proposals, while patiently considered by his fellow delegates, were almost universally rejected as being overly aristocratic – a President and Senate each elected for life, state governors appointed by the chief executive, etc. Nevertheless, Hamilton considered the completed document a tremendous improvement over the existing Articles of Confederation, appended his name to the final draft, and set about promoting its ratification by the various state conventions. 

On the topic of high courts in the late 18^th century Anglo-American world, a fair bit more ought to be said. After all, the Framers did not draw the framework and logic of the Supreme Court from whole cloth. Rather, they sought to combine elements of existing judicial bodies, tempered with lessons from English, British, and even recent American history, with the aim of synthesizing an institution that combined consistency with innovation. In consequence, and in order to better understand exactly which functions the Framers expected a high court to perform, it would seem a worthwhile exercise to examine, if briefly, some of the antecedents of the United States of America’s federal judiciary.

As per usual, Britain almost certainly looms largest in terms of the influence of its history, politics, and culture upon the Founding Generation. By the end of the 18^th century, the British court system was, at least on the surface, highly specialized, with cases being heard at the national level by the Court of Chancery (tasked with hearing petitions for writs or injunctions), the Court of the King’s Bench (to do with matters concerning the Crown) the Court of Common Pleas (ruling on suits between individuals), the Court of the Exchequer (tasked with weighing appeals), or the High Court of Admiralty (with jurisdiction over maritime law). While each of these institutions possessed its own set of traditions and procedures, and had been created to meet a specific need within the sphere of English jurisprudence, beginning in the 17^th centuries their functions became increasingly difficult to distinguish. This trend further intensified in the 18^th century, with the Court of Chancery, the Court of the Exchequer, the Court of Common Pleas, and the Court of the King’s Bench at various times hearing the same kinds of cases and citing each other’s rulings as precedent. The result was a high degree of redundancy, procedural confusion, and corruption. The Exchequer, for example, gradually took on the role of court of last resort, from which a petitioner could appeal to the House of Lords only with difficulty. The Court of Chancery, by comparison, possessed a far more robust appeals mechanism, and was often preferred by potential litigants as a result. In consequence of minor distinctions like these, certain courts became more highly favored than others, received more business, accrued more prestige, and attracted better talent.     

In addition to the fragmented nature of the 18^th century British court system – as compared to that which was erected in the American republic under the Constitution – justices in Britain also lacked what would become perhaps the single most important power at the disposal of the United States Supreme Court. Namely, they were incapable of nullifying statutes that had been ratified by Parliament and made law by royal assent. There were – and to this day there are – several reasons for this. The first is perhaps the most obvious: unlike the United States of America, Britain has no written constitution against which Acts of Parliament might be measured. Rather, the British Constitution is a kind of philosophical or legal concept whereby every act of law still in force – from the Magna Carta to bills passed by the Commons yesterday – is considered to form part of an unorganized but still binding whole. Thus, when a statute is adopted by Parliament which contravenes an existing law, the latter is simply overwritten. This understandably obviates any need for judicial intervention, and also highlights the second reason that judicial review is not a recognized legal concept in Great Britain: the principle of Parliamentary Supremacy.

In reaction to a series of events stretching across the 17^th and 18^th centuries – i.e. the English Civil War (1642-1651) and the Restoration (1660), the Glorious Revolution (1688-1689), the Act of Settlement (1701), and the Acts of Union (1707) – the British Parliament gradually, and later formally, adopted a set of norms and doctrines intended to counter the discretionary authority of either the Crown or members of the judiciary appointed by the same. As particularly embodied by the Bill of Rights of 1689 and the aforementioned Act of Settlement, it became generally recognized that Parliament was permitted to make law touching upon any subject, that no law passed by one Parliament could not be subsequently repealed or altered by another, and that no legitimate Act of Parliament could be nullified by the ruling of a court. Combined, these principles solidified the role of Parliament as the sole and supreme maker of law in Britain. As Parliament was held to embody the will of the British people and acted as the guardian of their rights, Parliamentary Supremacy therefore guaranteed that said people the only legitimate source of political authority. While unrepresented in Parliament – and thus theoretically exempt from its authority – the Glorious Revolution and its implications loomed large in the 17^th and 18^th century Anglo-American cultural consciousness, and helped condition the way American colonists from Massachusetts to Georgia understood the relationship between their own governments, Parliament, and the Crown.

As discussed in past entries in this series, however, the realities of life in 17^th and 18^th century British America often shaped the expectations of residents therein in ways that defied or rejected the received knowledge of contemporary British political culture. Unlike Britain proper, the various colonial governments were defined by written charters, granted by the Crown and capable of being amended or nullified only by that same authority. In theory, the existence of these charters placed the colonial governments beyond the remit of Parliament – as a set of contracts between the monarch and his/her subjects in particular regions of North America, they could not be countermanded or repealed by a Parliament which had no part in their creation. That being said, Parliament generally claimed the right to legislate for the colonies – the so-called “Declaratory Act” of March, 1766 made this sentiment explicit by asserting that the British legislature possessed, “Full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America […] in all cases whatsoever” – while the relationship between the various settlements of British America and the Crown were mediated by a body within the Privy Council whose members were universally sitting or former members of the House of Common or the House of Lords. Citizens of British America were therefore placed in the unique position of recognizing, owing loyalty, and paying taxes to two separate governments – one which was codified and unalterable except by a centralized authority, and another which was uncodified, unrepresentative, and wholly exempt from any limitations on its ability to make law. Parliament could theoretically do nothing to alter the form or function of the various colonial governments, while the colonial governments were likewise wholly incapable of challenging the legislation adopted and enforced by Parliament. Neither the Crown nor the courts could intercede on behalf of the colonies, and in such cases the citizens of British America were left entirely without recourse. 

Federalist No. 68, et al, Part VII: The Forlorn Hope, contd.

            Notwithstanding the adoption of the Twelfth Amendment in 1804, and a powerful inclination among the states in favor of the winner-take-all selection model which culminated in the 1830s, public opinion concerning the Electoral College continued to be at least somewhat malleable through at least the 1820s. Though by that time the system had become largely pro forma, with Electors increasingly expected to vote in line with their declared party affiliation, not every observer was entirely satisfied with the advantages that this trend bestowed upon the nation’s dueling political factions. A particularly significant critique in this vein – though perhaps not a very surprising one, all things considered – came from the pen of another of the original architects of the Electoral College itself, James Madison. At that stage in his career – the summer of 1823 – Madison was a former Secretary of State and former President who held no public office and had every reason to look back upon the preceding twenty years with eminent satisfaction. The party that he had helped create, the Republicans, had controlled the Presidency, the House of Representatives, and the Senate without interruption since 1800, aided in no small part by the efforts of its various state organizations to command their respective Electoral College votes. The opposing Federalist Party had almost completely disappeared as a result and very little seemed to stand in the way of the continued Republican dominance of American public life.

            In spite of of these outwardly fortuitous circumstances, however, Madison remained concerned. He had long since expressed his preference that the several states should adopt the district election model for choosing presidential Electors – it being, he insisted, the nearest to what the Framers had had in mind – and showed frustration at the enthusiasm with which either the winner-take-all or legislation appointment methods had been embraced. And though, in some respects, a “good party man” who had worked hard to secure and maintain every advantage for his fellow partisans, Madison maintained what might now be thought of as a somewhat technocratic streak. At heart a creature of policy rather than ideology, he tended to take a measured, cautious approach to issues, to study intensely, reflect at length, and support what he believed to be the single best possible initiative. This characteristic adherence to pragmatism is perhaps best exemplified by Madison’s support for the chartering of a second national bank in 1816. The First Bank of the United States had been the brainchild of arch-Federalist Hamilton, was bitterly opposed by Jefferson, Madison, and their fellow Republicans, and had been allowed by the latter to go fallow once its charter expired in 1811. The financial strains exerted upon the nation by having to wage the War of 1812 (1812-1815), however, effectively convinced President Madison and his allies in Congress that national banking could indeed serve a useful purpose. The resulting Second Bank of the United States, after first struggling to find its footing, ultimately proved capable of maintaining the nation’s line of credit and its currency on a stable footing. Whether or not Madison could foresee this outcome in 1816, he at least seemed to possess the humility and clarity of vision to attempt to correct a miscarried policy in the face of ideological opposition.

            With this quality in mind, Madison’s specific response to what he evidently perceived as the failures of the Electoral College are perhaps not so hard to understand. Said response took the form of a letter, written to fellow Virginian George Hay (1765-1830) on August 23^rd, 1823 and apparently in reply to Hay’s, “Attention to great Constitutional topics.” Judging by some of the context that the letter provides, Hay had earlier written to Madison with a number of proposals for reforming the Electoral College via the mechanism of a constitutional amendment. Madison’s answer ran through several of these proposals, expressing agreement, or disagreement, or uncertainty, before finally offering a short passage of draft text. The 4^th President of the United States, Father of the Bill of Rights, and co-founder of the Republican Party was apparently still of the opinion that district elections were the best possible method for selecting Electoral College delegates. “The district mode,” he explained,

Was mostly, if not exclusively in view when the Constitution was framed and adopted; & was exchanged for the general ticket & the legislative election, as the only expedient for baffling the policy of the particular States which had set the example.

One ought to make note, in this passage, of at least two significant points. The first is Madison’s continued affirmation that the district election method had been foremost in the minds of the Framers when they originally designed the Electoral College. While on one hand pegging Madison as something of a proto-Originalist – that is, someone who chooses to interpret the Constitution through the lens of its authors’ intentions – it also implies something about his perspective on the contemporary state of the system itself. By 1820, as noted in a previous entry in this series, nine states practiced the winner-take-all method, nine practiced legislative appointment, and the remaining six held district elections. If, as he ardently maintained, the Framers really had designed the Electoral College with the district election method in mind, then Madison surely would have agreed that by 1823 the system had already ceased to function as originally intended.

            The second element of the above-quoted passage worth reflecting upon is Madison’s account of how and why “the general ticket & the legislative election” became the preferred methods for appointing Electors. Adopting these methods, he explained, though they were not what the system had been designed to accommodate, was, “The only expedient for baffling the policy of the particular States which had set the example.” This sentiment, fittingly enough, aligned Madison with his friend and partner Jefferson. The latter – as also noted previously – had written in a letter dated January, 1800 that, “An election by districts would be best, if it could be general; but while 10 states choose either by their legislatures or by a general ticket, it is folly & worse than folly for the other 6 not to do it.” Both of these men – the co-founders of the Republican Party and perhaps the most significant beneficiaries of its subsequent success – favored the district election method, understood why it was not practicable, and lamented the fact of it. So long as a critical mass of states practiced either the winner-take-all or legislative appointment methods, thus lending the parties that formed their respective governments a distinct advantage, there was no profit to be had in standing on principle.

While this perspective might appear to be an outwardly cynical one – stressing, as it does, the importance of outcome over method – there is no reason to doubt that either Jefferson’s or Madison’s lament was anything other than sincere. The Virginia duo may have been the guiding hands behind the Republican Party, but they were as capable of being blinded by the promise of victory as any of that faction’s rank and file; or perhaps even more so, because their respective reputations, energies, and future prospects were so wholly invested in the success or failure of the party itself. Continued failure at the ballot box may very well have resulted in a loss of credibility, a strengthening of the Federalist establishment, and possibly even charges of treason or disloyalty.  That being said, neither Jefferson nor Madison was oblivious enough to completely lose sight of the sacrifices they were making. Madison’s Federalist No. 10 speaks powerfully of its author’s distaste for faction and his desire to construct a system in which consensus was strongly encouraged. And yet, Madison clearly defied these sentiments by co-founding an organized political movement, acting as one of its strategic planners, fostering partisanship, and encouraging the use of electoral systems that favored majoritarian rule and stymied potentially constructive debate. The result was doubtless some degree of personal consternation. Encouraging the constitutional codification of the district election model – as he had done for decades, but which he could never bring himself to attempt to enact – may thus have served as a way for James Madison the elder statesman – he was seventy-two in 1823 – to exorcise some of the frustration or guilt he still harbored over the way he and his fellow Republicans had so avidly sought after political advantage.

Further evidence of this rather retrospective, almost penitent line of thought can be found in another of Madison’s recommendations to Hay in the former’s August, 1823 missive. In addition to conforming more closely to the original intent of the Framers, Madison advised that a standardization of the district election method may also have served to repel some of the more destructive aspects of partisanship and encourage a much stronger sense of community than the status quo would admit. “The States when voting for President by general tickets or by their Legislatures,” he began, “are a string of beads [.]” The likely significance of the metaphor was to emphasize the separateness and wholeness of the various states. As beads on an abacus can be added to or subtracted from a resulting sum, so the states that practised either the winner-take-all or legislative appointment method added to or subtracted from the vote tallies of the various eligible candidates. The victor successfully assembled the required number of states, irrespective of the potentially sizeable number of voters in each state who chose otherwise. States that failed to select the winner of the contest were likewise portrayed by the outcomes of winner-take-all and legislative appointment as being unequivocal in their rejection. There could be no fractions of states awarded to one candidate or another, just as there are no fractions of beads on an abacus. The result, among other things, was a method of election that produced highly adversarial results – states aligned themselves entirely with one office-seeker or another, and may thereafter have been defined by whether they picked the winner or not.    

  This result, Madison avowed in his letter to Hay, was neither beneficial nor unavoidable. If all of the states were to practice the district election method, he wrote, 

Some of these [districts] differing in sentiment from others, and sympathizing with that of districts in other States, they are so knit together as to break the force of those geographical and other noxious parties which might render the repulsive too strong for the cohesive tendencies within the Political System.

While it may have represented a somewhat idealistic perspective on factional politics – particularly as the nation hurtled headlong into the hyper-partisan Jacksonian era – the basic contours of Madison’s argument are fairly straightforward. Because the district election method would allow different regions within a single state to support different candidates for President, Madison felt it was likely that economic, or religious, or cultural communities would begin to reach beyond the borders of their respective states in an effort to assemble the votes to elect their desired nominee. Thus, instead of an outcome in which states were outwardly united, inwardly divided, and set in opposition to one another based on party identification, the bonds between communities and across states would be strengthened, founded upon their shared consensus as to who would best fill the office of chief executive. No longer would parties be compelled to do battle over Massachusetts, Virginia, or Pennsylvania, with the victor claiming the sum total of their respective Electoral votes. Rather, parties would be forced to appeal to broader interests – the agrarian vote, the Evangelical vote, the urban vote, etc. – and attempt to construct coalitions of voters across multiple states.

            Whether it was realistic for the era or not, Madison’s belief in the ability of political institutions to foster community and consensus was very much in keeping with his own stated principles. Returning once more to Federalist No. 10, his interest in using large scale debate, wide spectrums of opinion, and majority rule to decrease the traction enjoyed by divisive topics and increase the odds of compromise are clearly and insightfully expressed. The greater the breadth of opinion represented within a discussion, he asserted, the more likely its participants were to find common ground, or risk failing to come to any decision at all. In time, finding consensus would become second nature, all but the most extreme parties would grow confident that their voices were being heard, and a strong communal bond would coalesce around values like mutual respect, compromise, and open deliberation. Granting, once again, that Madison had spent the better part of his professional career after putting forth these principles in print helping to erect a highly adversarial party system whose existence ran counter to just about every one of them, his late-in-life advocacy for the “cohesive tendencies within the Political System” are no less significant. When one also considered the context of his newfound support for the district election method – and the many marvelous benefits ascribed to it– the fact of it becomes more remarkable still.

            Madison and Hay were, after all, both Virginians. Not only had their shared home state contributed three of the first five Presidents, but its population – inflated, it bears remembering, by a very large number on non-voting, politically unrepresented slaves – consistently entitled it to either the largest or second largest number of presidential Electors in every vote between 1788 and 1820. Under the terms of either the winner-take-all or legislative appointment methods, therefore, Virginia often represented one of the single greatest prizes to the various competing parties, and often asserted itself as the crucial lynchpin of victory – alongside New York – in the Electoral College. The Old Dominion was also, as it happened, a bastion of the support for Madison’s Republicans, and had voted for the winning candidate in every presidential election between 1800 and 1820. In consequence of these various advantages, there would seem to have been little reason for two Virginians in 1823 to favor reducing either the influence that their home state possessed or the electoral support that the Republican Party enjoyed. A nation-wide, constitutionally-mandated adoption of the district election method would have potentially brought an end to this status quo by allowing Virginia’s vote to be split among however many candidates its voters favored, and by dividing the attention and the resources of the Republicans across a multitude of districts instead of a handful of states.

            Consider, for a moment, contemporary Congressional representation as a potential measure of how a state’s Electoral College support would have been fractured by the adoption of the district method. Virginia, though its Electoral vote had gone to the Republicans in every election between 1796 and 1820, managed to send a not-inconsiderable number of Federalists to the House of Representatives throughout this same period. In 1800, six of the state’s nineteen Congressmen (roughly a third of its delegation) were Federalists. This tally fell to one of twenty-two following the 1808 Mid-Term Elections, rose to seven of twenty-three by the end of 1812, and fell back down to two of twenty-three in 1820. If Virginia had been using the district election method throughout this period, and if the districts established for the purpose of choosing Electors overlapped with the districts assigned to the state’s Representatives in Congress, it is at least possible that this small but resilient core of Federalist support could have carved out a share of the Old Dominion’s Electoral vote for themselves. Granted, stripping a potential six or seven of twenty-two or twenty-three votes from the Republicans’ total would likely not have represented much of a threat. It also seems likely that if the state government was responsible for drawing Electoral College districts, whichever party was in charge – read: the Republicans – would likely have attempted to create – read: gerrymander – the most favorable electoral map possible. All that being said, use of the district model would undeniably have forced both major parties to rethink their strategic calculations and address different sets of interests and concerns than either winner-take-all or legislative appointment demanded of them.

            Examining the same statistics from, and applying the same proposal to, New York more clearly illustrates the potential difference between competing at-large for a state’s Electoral votes and Madison’s stated preference of competing in a set of districts therein. In every presidential election between 1800 and 1820, New York supported a Republican candidate, and beginning in 1812 they possessed the single largest share – twenty-nine – of the two hundred seventeen Electoral votes up for grabs. In spite of its seemingly unwavering support for the party of Jefferson and Madison, however, the Empire State was closely divided between Federalists and Republicans throughout this two decade span. Four of New York’s ten Congressmen elected in 1800 were Federalists, putting the two parties one seat away from a dead heat. This tally increased – though the percentage decreased – to five of seventeen in 1802, dropped to three of seventeen in 1806, climbed to eight of seventeen in 1808, soared to nineteen of twenty-seven in 1812, and finished with seven of twenty-seven in 1820. Projecting the same scenario as with Virginia – Electoral College districts that roughly overlapped with Congressional districts – the use of the district election method would seemingly have caused New York’s support for one party or the other to fluctuate significantly from one presidential election to the next. Bearing in mind the same caveats as noted with Virginia – the potential effects of gerrymandering and the generally superior position of the Republican Party – and factoring in the often ruthless competition that party organizations engaged in during the lead-up to a presidential election – as previously illustrated by the furor surrounding the New York legislative elections of 1800 – and the end result of applying the district election method to the state New York is admittedly hard to calculate. Nevertheless, there would be a result of some kind. Strategies would shift, and priorities would alter, and the dynamics of both state and national elections would change.

            This, in spite of the harm it may have visited upon the fortunes of his own party, was evidently was Madison wanted. As he indicated in his letter to George Hay, the Electoral College need not only serve as a mechanism for appointing the nation’s chief executive. Suitably restructured, it could aid in fostering a greater sense of community than the preceding twenty years of partisan warfare had wrought. “Cohesive tendencies” were what at least partially concerned him, and a system that was able to “knit together” the residents of electoral districts across multiple states was what he evidently desired. This interest in process as well as outcome – how something is achieved, as well as exactly what is achieved – was typical of Madison, though his actions across the two prior decades showed a greater interest in seeking the latter. The American political establishment manifested a similar fixation – with state and national parties forever seeking advantage in the shadow of election after election. Indeed, by 1823 the nation was if anything transitioning into one of the most partisan eras in its history rather than shifting towards anything like the more deliberative atmosphere that Madison seemed to favor. In consequence, the reflections and proposals he put forward in his correspondence with George Hay are at once highly unusual for the period, informative of how the Electoral College actually functions, and not a little bit tragic.

            Despite recurrent claims by pundits and party faithful in the 20^th and 21^st centuries that the quirks inherent in the Electoral College are all a part of what the Framers intended, the often insightful and well-structured objections registered by some of the same quite clearly indicate that this is not the case. Indeed, it arguably ceased to be the case within a quarter century of the system’s implementation in 1788. Alexander Hamilton and James Madison could both fairly claim to have had a hand in designing the Electoral College. And both also seemed to have a reasonably clear idea of the specific role that the Electors were supposed to perform. Hamilton made it quite plain in Federalist No. 68 that the individual discretion of the various members of the Electoral College was fully intended to inform who was chosen to serve as President of the United States. The office was too powerful and too vulnerable to potential abuse, he wrote in 1788, to be bestowed unthinkingly, without due deliberation by those who possessed the requisite “information and discernment,” or as a reward for displays of “low intrigue, and the little arts of popularity.” In spite of these public assertions of what he and his colleagues had intended, however, the Electoral College very quickly began to change.

            Parties emerged, solidified, and began directing their respective organizations to seek every advantage possible in the ongoing contest for political power. The laws which governed how Electors were chosen – left by the Constitution entirely up to the states to define – became a major theatre in this ongoing battle. At that point – as early as the mid-1790s – the intentions nurtured by the Framers took a decided back seat to the needs of the nation’s increasingly animated partisans. The district election method – the expressed favorite of Hamilton and Madison, both – began to lose ground to more expedient voting schemes. Deliberation began to fade as a major quality of the Electoral College. Party strategy became the core consideration. In spite of their ideological objections, Hamilton and Madison were themselves ultimately complicit in advancing this trend. They became tacticians, sought to clear the way for the success of their respective parties, and actively helped along the conversion of the system they had lent their hands to create from one that was intended to benefit the American people to one that first and foremost benefited specific factions thereof. And yet, they were no longer its masters. The Electoral College remained in part their creation and they could both continue to claim special knowledge of how it was originally intended to function. But by the turn of the 19^th century, the system had effectively taken on a life of its own.    

            Hamilton’s failed attempt at a Constitutional amendment and Madison’s letter to George Hay both speak to this fact. If, in 1802, the Electors were continuing to perform their duties as the Framers had envisioned, why would one of their number attempt to alter the text that governed their powers and responsibilities? If the Electoral College was functioning as designed, why would one of its designers have wished to modify the original plan? The desires expressed by Madison in his missive to Hay beg similar questions. If the system by which the American people elected their chief executive was working as intended in 1823, why would one of its architects have declared that a major modification was “very proper to be brought forward [?]” If the modes of choosing Electors then in favor – winner-take-all and legislative appointment – were in keeping with what he and his colleagues had preferred from the start, why would Madison have described their adoption as “expedient [?]” As it happened, neither man seemed entirely satisfied with what the Electoral College had become over the course of their respective professional lives. Notwithstanding their personal contributions on that score, the system had turned into something they had never intended it to be. The degree of their dissatisfaction, and the importance they attached to a remedy, may fairly be measured by their shared resort to Constitutional amendment. Only the laws and regulations considered absolutely paramount to the proper administration of the American republic were to be contained within that hallowed document. If modifying the same was the only reasonable method of addressing the flaws they perceived, then the contemporary Electoral College must have been, from their perspective, well and truly broken.

            That the efforts of both these men ultimately failed is no less significant that the fact that they felt the need to try. As striking as the image undoubtedly is of two of the Framers of the United States Constitution attempting to repair a flaw of their own creation, it may in fact come second to their respective inability to accomplish the same. Not only had the Electoral College been so completely transformed by the partisan conflicts of the late 18^th and early 19^th centuries that its creators felt the need to rein it in, but its transformation arguably helped it to elude their best attempts. Whatever cultural or political authority Hamilton still possessed in 1802, or Madison held fast to in 1823, the Electoral College was no longer theirs to command. By the fourth national election under its auspices, the system belonged to the parties, or to the states, or to the American people themselves. It obeyed their wishes, channeled their desires, and elected their President. Hamilton and Madison, with their principles and their ideals, their belief in deliberation and their faith in the power of process, had been left behind. In consequence, from at least the turn of the 19^th century until the present, it cannot fairly be said that the Electoral College is and has been what the Framers endeavored to make it. Rather, it is and has been what the American people have decided it should be.        

             

Anyhow, you know the drill. Take a look. 

Federalist No. 68, et al, Part VI: The Forlorn Hope

Because of how inevitable a simple year-by-year accounting can make the emergence of the current status quo seem, it is perhaps worthwhile to note at this stage of the discussion that a number of prominent figures have attempted to push back against the transformation of the Electoral College from vital decision-making body to the world’s most expensive rubber stamp. Certain members of the Founding Generation in particular demonstrated disappointment and dismay at the steady erosion of the system’s intended purpose, and several even went so far as to offer potential countermeasures. Perhaps most noteworthy among the latter group were, unsurprisingly, two of the principle architects of the Electoral College itself, Alexander Hamilton and James Madison. Hamilton’s perception of the role that the Electors were supposed to play in the selection of the nation’s chief executive, if the text of Federalist No. 68 is any indication, made no allowance for general tickets, winner-take-all votes, or any other measures which might have altered or impinged upon the ability of the Electors to exercise the full extent of their individual discretion. His specific use of words like “analysing,” “deliberation,” “choice,” “discernment,” and “investigations” to describe the character that the Electors were to possess and the nature of their appointed task would seem to make this fact quite clear.

Admittedly, Hamilton’s actions did not always hold true to this ostensibly strict understanding of what the Electoral College was supposed to be. As noted above, his actions during, and in the aftermath of, the New York legislative elections of 1800 were hardly those of an individual who held firm to principle, come what may. Amidst the hurly-burly of 18^th century electioneering – a primitive, but powerful art – he seemed either to have forgotten what he had written so many years earlier about the importance of Electors exercising discretion, or something had occurred to change his mind. Then again, perhaps it was neither. Confronted with the preferences of the state party organizations for this or that method of choosing Electors – conferring this or that strategic advantage – the ever-pragmatic Hamilton perhaps made the same compromise with himself that all but the most morally inflexible statesman eventually confront. However much it satisfied his personal sensibilities for Electors to be active agents in the national political process, the circumstances of the moment demanded that he attempt to make his home state’s preference – appointment of Electors by the legislature – work to his advantage. Recalling his role as perhaps the most diehard of Federalist partisans during that faction’s early existence, this scenario appears all the more plausible. In spite of the fact that he had helped to design the Electoral College, Hamilton was as susceptible as any of his fellow countrymen to the same pressures of partisan competition that would later support the passage of the Twelfth Amendment and form a consensus around the winner-take-all method of Elector appointment.         

 And yet, in spite of this rather hard-headed approach to politics – or perhaps because of it – Hamilton was also one of the more prominent supporters of some kind of institutional solution to the steady erosion of the Framers’ vision for the Electoral College. In the aftermath of his party’s defeat in the New York vote in May, 1800, his ill-conceived appeal to Governor Jay to overturn the results, and his ideological adversary Thomas Jefferson’s resulting election as President later that year, Hamilton drafted and put forth a suggested constitutional amendment of his own. Predating the introduction of the soon-to-be Twelfth Amendment by over a year, Hamilton’s proposal was presented as a resolution to the New York State Senate on January 26^th, 1802, approved by that body on January 30^th, sent to the State House of Representatives that same day, and approved again on February 1^st. Minus introductory and concluding paragraphs, the resolution was divided into two clauses. The second was by far the shortest, and read in full, “That in all future elections of President and Vice President the persons voted for shall be particularly designated by declaring which is voted for as President and which as Vice President.” After the approved resolution was submitted to Congress by New York Representative Benjamin Walker (1753-1818) and rejected by the Senate, it was this passage that was eventually resurrected as the aforementioned Twelfth Amendment.

Reforming how the Electoral College functioned, however, was but one part of Hamilton’s plan. In isolation, taking measures to that end would not have accomplished what the full text of his proposed amendment clearly intended to accomplish. Consider, as evidence of Hamilton’s broader vision, the first clause of said amendment – the part that the New York Legislature approved and Congress rejected. Comprised of a relatively detailed set of instructions intended to clearly define how the states were to select their apportioned Electors, it suggested that Congress take up responsibility for dividing each of the states,

Into Districts equal to the whole number of Senators and Representatives from such state[s] in the Congress of the United States, and shall direct the mode of choosing an Elector of President and Vice President in each of the said Districts, who shall be chosen by Citizens who have the qualifications requisite for Electors of the most numerous branch of the State Legislature, and that the districts shall be formed, as nearly as may be, with an equal proportion of population in each [.]

By electing to take the choice of appointment method entirely out of the hands of the states, and by in fact specifically mandating the district election method, Hamilton thereby recommended introducing a level of procedural standardization to the national electoral process that had heretofore never existed.

Operating under these restrictions, state party organizations would theoretically no longer perceive legislative elections as the single most vital theatre in their ongoing contest for the office of President. The method by which a state appointed its Electors would no longer be defined by which party was in power, and the citizens of every state could at last be assured that they were on an equal playing field – at least in terms of how their votes for President were counted – with the rest of the countrymen. In addition, a constitutionally-mandated and Congressionally-defined system of district elections would have effectively banished the democratic iniquities of the winner-take-all and legislative appointment methods. Whereas, under both the former and the latter only fifty-one percent of the vote was required to secure a party one hundred percent of the state’s Electors, Hamilton’s proposed system would have potentially ensured that districts wherein support for the minority was strongest would have been able to choose Electors that reflected their particular priorities and concerns. Granting that these alterations to the status quo would not have succeeded in banishing the spectre of partisan politics altogether – state parties doubtless would have simply shifted their attentions from legislative elections to the various district elections – they would at bottom have helped ensure the selection of an Electoral College that was more broadly representative of the many and varied communities of which the United States was comprised. No longer able to boil down any given Presidential vote to simply taking the shortest path to a statewide fifty-one percent, parties would be forced to compete in much smaller and much less homogeneous constituencies. The end result, if not a revolution, would perhaps at least have resulted in an American Presidency that reflected the aggregate of voter intentions more than the strategic posturing of political parties.

Also worth noting – in relation to the uncertain path of the Electoral College and the challenges presented to potential reformers by an increasingly partisan political culture – are the particular circumstances within which Hamilton was able to present his proposed amendment to the legislature of his home state. Because Hamilton was not a member of the New York State Legislature in 1802, he required some form of official cooperation for his proposal to be publically considered. That is to say, he needed a favor from a sitting member of either the New York State Assembly or the New York State Senate. When one considers that in the early months of 1802 the latter body was controlled by Hamilton’s own Federalist Party, it would seem fair to assume that he would not have had to work very hard to engage the assistance of a fellow partisan. And yet, in spite of Hamilton’s recent defeat at the hands of Republican rival Aaron Burr, the election of nemesis Thomas Jefferson, and his well-documented reputation as the arch-partisan of the Founding Era, he instead reached out to Republican State Senator – and later Governor and Mayor of New York City – DeWitt Clinton (1769-1828). Nephew of long-time New York Governor George Clinton (1739-1812), young DeWitt was just beginning what would prove to be a long and influential career in state and national politics. In consequence, in spite of his membership in a party to which Hamilton stood ideologically opposed, he perhaps presented to the elder statesman a more promising prospect for cooperation than one of his more established and more entrenched colleagues. That being said, Clinton’s help did not come without a price.

In exchange for placing the proposed amendment before the eyes of his fellow Senators, Clinton put forth two alterations to the text therein. One, found at the conclusion of the first clause, pegged the creation or alteration of Electoral College districts to the decennial United States census. This, in all likelihood, was merely a matter of “housekeeping” – an attempt to ensure that Electoral College districts functioned via the same rules as Congressional districts. The other suggested alteration, however, was somewhat more substantial, as it replaced the word “Congress” at the beginning of the first clause with the phrase “State Legislatures.” This change effectively reasserted the role of individual states in structuring and administering the selection of Electoral College delegates. Granted, it did not unduly infringe upon Hamilton’s core objective – placing every state on the district election model – but it most certainly represented a different understanding of the relationship between the various states and the federal government. Via Clinton’s alteration, state governments would have been able to define the boundaries of Electoral College districts in much the same way that they did their own legislative assembly districts. This would presumably have led state party organizations to continue to treat legislative elections like single theatres within a larger partisan conflict, though with something of a delayed or deferred effect. After all, even the most nakedly partisan gerrymanders fail to go so far as to eliminate the possibility of some form of opposition. However lopsidedly one party or another attempted to “stack the deck” by drawing Electoral College districts to their own benefit, some opposing Electors were bound to be chosen. In this sense, while not as stringent as Hamilton’s original, even DeWitt Clinton’s modified proposal would likely still have led to the creation of a more dynamic, competitive, and representative Electoral College.

Perhaps the most fascinating aspect to the story of Hamilton’s failed attempt to reform the Electoral College – which is on its own already pretty damn fascinating – is the  fact that he apparently agreed to go forward with Clinton’s proposed alterations. As discussed above, the resolution packaging the suggested amendment was presented to the New York State Senate, passed by the same group, sent to the New York State Assembly, and passed again. When one also recalls that that selfsame Senate session was controlled by the Federalists, that they generally supported strengthening the Federal government and that Hamilton was at that point in history their unchallenged champion, they whole affair takes on a somewhat miraculous aspect. How did this happen? How did Republicans and Federalists in ultra-partisan New York, at one of the most contentious moments in the history of American party politics, possibly reach a consensus on something as fundamental as altering the manner by which the American people assigned someone to occupy the most powerful office in the nation? The answer – and I want to speak to you directly just now so that there is no confusion – is quite simply, I don’t know. I don’t know how Hamilton could have agreed to Clinton’s alterations, or why he chose Clinton as his partner to begin with, or why the New York Senate Federalists accepted the altered proposal, or really how any of it came to pass.

And yet, it did happen.

For that reason alone, Hamilton’s failed amendment represents a tremendously important moment in the history of the Electoral College. In spite of the partisan competition over state Electoral College selection law that was then animating local party organizations from Maine to Georgia, and the Federalists’ stinging loss in the New York state elections of 1800, and the apparent advantage enjoyed by the Republicans, and the strategic allure that winner-take-all and legislative appointment each possessed, New York’s partisans somehow found themselves agreeing that the status quo was untenable. Rather than continue to bludgeon each other every Election Day over who would write the electoral laws, or appoint the Electors themselves, Federalists and Republicans, for however brief an instant, turned from competition to conversation. Hamilton began the parlay with his draft amendment, Clinton countered with his alterations, the modified resolution was presented to the assembled lawmakers, and the majority voted in favor. The end product was not what Hamilton originally envisioned – having swapped federal for state authority. Still, his core objective – consistency, and in a form more closely approximating what the Framers originally intended – remained intact. At the price of compromise, he had largely achieved what he set out to achieve. Even if Clinton’s adjustments took place without Hamilton’s knowledge – if he sent the updated draft to the Senate without consulting his supposed partner – their ratification by the Federalist-majority Senate still speaks to the proposed amendment’s bipartisan support, the willingness of American partisans at the turn of the 19^th century to actively discuss particularly divisive subjects, and the status of the contemporary Electoral College as a largely unsettled question. 

Federalist No. 68, et al, Part V: The Losing Battle

As discussed in the previous post, the Twelfth Amendment represents perhaps the most significant turning point in the history of the Electoral College. Prior to its adoption in the summer of 1804, presidential elections in the United States possessed both partisan and non-partisan elements. The rules set by the states legislatures, by which Electors were chosen, were hotly contested by the emerging Federalist and Republican party organizations, while the rules set by the Constitution, by which the Electors cast their votes, remained as the Founders had left them in 1787. In consequence, while party establishments succeeded in shaping the procedures surrounding the appointment of presidential Electors in order to suit their desired objectives, they were still forced to work within the confines of a larger system – i.e. the Electoral College itself – that neither recognized nor made allowance for the existence of permanent political factions. The Twelfth Amendment altered this status quo by effectively writing recognition of party objectives into the section of the Constitution that described the election of the President of the United States. Whereas the Framers had intended for the chief executive and their deputy to be the first and second most acclaimed candidates for the former office, the authors of the Twelfth Amendment evidently believed that the outcomes that this method produced – however reflective of the popular will – were not acceptable to either the formal parties that had cohered since the middle of the 1790s or to their respective partisans.

And yet, though the Twelfth Amendment has arguably made possible over two hundred years of (largely) peaceful transfers of power from one party to another, its adoption in the summer of 1804 was not solely responsible for the transformation of the Electoral College into the form currently in operation. In spite of the apparent victory of factional interest over the intentions of the Framers that the selfsame amendment effectively represents, Electors continued to exercise some measure of individual discretion into at least the 1820s and state party establishments continued to seek strategic advantage by altering the laws that governed their selection through at least the 1830s. Prominent members of both the Founding Generation and their immediate successors offered varying degrees of resistance to this mounting tide of partisan monopolization – on the basis of principle and pragmatism alike – and their repeated failures likewise speaks to the uncertain and ad hoc path that the Electoral College has taken on the way to its present state. Furthermore, the metamorphosis of the role and responsibilities of presidential Electors has also been aided by the lingering effects of a fundamentally mistaken assumption on the part of the Framers themselves. As Federalist No. 68 makes note, the men responsible for designing the Electoral College were keen on crafting a system that would effectively screen out and counter individual or group biases in favor of promoting the rational best interest of the American people. By ascribing such inclinations mainly to the educated and informed elite, however, the Framers failed to provide any safeguard against the assumptions and prejudices of the general population. Political parties have since become especially adept at shaping popular attitudes to suit their various agendas, and have exploited the associated weaknesses of the Electoral College with tremendous success.         

Returning, for the moment, to the early 19^th century, the prolonged malleability of the contemporary Electoral College can been seen most clearly in the continually shifting ratio of selection methods in use by the various states from one election year to another. In 1800, prior to the adoption of the Twelfth Amendment, two states (Virginia and Rhode Island) assigned their Electors by a winner-take-all vote, three (Kentucky, Maryland, and North Carolina) practiced the district election method, and the remaining eleven (South Carolina, Georgia, Pennsylvania, New York, New Jersey, Delaware, Massachusetts, Vermont, Connecticut, New Hampshire, and Tennessee) left the task to their respective legislatures. By 1804, Massachusetts and Tennessee had shifted to state legislature to district election, and Pennsylvania, New Hampshire, and New Jersey were joined by new state Ohio in taking up the winner-take-all method. All other states retained the systems they had practiced in 1800, creating a balance of six states following the legislature model, six recognizing winner-take-all, and five awarding Electors by congressional district. Recalling that the practice of assigning Electors by a popular vote in specific districts was the closest to the Framers’ stated intent of the three methods in use, 1804 showed the more party-friendly systems already in the majority. And yet, 1804 also marked a high-point for the district method – never before had as many as five states appointed their Electors that way, and  only 1820 would see a sixth state follow suit. Consequently, while there was indeed a trend taking shape as of 1804 in favor of state-defined electoral laws that favored political party objectives, the overall character of the Electoral College remained notably in flux.

Between 1804 and 1820, the body of state laws governing the selection of presidential Electors continued to fluctuate, in some cases with what might now appear to be alarming frequency. While Kentucky, Maryland, and Tennessee continued to practice the district election method throughout this period, and the majority of their fellow states stuck steadfastly to either the winner-take-all or legislature methods, Massachusetts and North Carolina demonstrated an apparent inability to settle upon any one procedure of appointment. The latter proceeded along a more-or-less linear path from district elections in 1808 to the legislature method in 1812 before finally settling on winner-take-all in 1816, were it has since remained. The Bay State meanwhile shifted from district to legislature between 1804 and 1808, and then to district again in 1812, and then legislature once more in 1816, and then district a third time in 1820. Without being able to say for certain why Massachusetts in particular proved incapable of reconciling itself to a selection method for longer than a single election cycle, or why it continually shifted back and forth between only two specific methods, the most likely reason has everything to do with the seesawing fortunes of the state’s major political parties.

In the years from 1800 to 1820, the Massachusetts wings of the Federalist and Republican parties traded control of the state House of Representatives with a regularity that borders on clockwork. The Republicans began the period in question in possession of the chamber, lost control of it to the Federalists in 1802, and then held it again from 1806 to 1808 and 1810 to 1812. Juxtaposed against the aforementioned record of shifting electoral laws, the most obvious conclusion would seem to be that the Republicans in Massachusetts preferred to allow the state legislature to appoint Electors – the Election of 1800, which occurred right in the middle of their longest period of control, saw the use of this method – while the Federalists favored the district election model – the shift in 1804 corresponds to their majority between 1802 and 1806. In truth, this kind of intense partisan competition – with state electoral laws as the battlefield and the Presidency as the prize – was entirely in keeping with the trends that first set in motion the transformation of the Electoral College in the 1790s. Nevertheless, it remains remarkable that state parties continued to strive for the best possible result from Electoral College appointments for so many years after the ratification of the Twelfth Amendment. In spite of having essentially turned over control of the system to the state parties, large numbers of Federalist and Republican partisans evidently remained in disagreement as to which method of appointing Electors suited their common objective of assembling a victory for their organizations’ chosen candidate for President.

This manifest uncertainty began to dissipate in earnest after the Election of 1820. That specific year effectively marked the last moment in which it could honestly be said that the method favored by the states for choosing Electors remained an open question. Nine states preferred to let their legislatures make the relevant appointments (Alabama, Delaware, Georgia, Indiana, Louisiana, Missouri, New York, South Carolina, and Vermont), nine states followed the winner-take-all model (Connecticut, Mississippi, New Hampshire, New Jersey, North Carolina, Ohio, Pennsylvania, Rhode Island, and Virginia), and six states assigned Electors based on district elections (Illinois, Kentucky, Maine, Maryland, Massachusetts, and Tennessee). While the district election method was still in the minority, it enjoyed more support in 1820 than at any prior point in American history. Furthermore, only three more states preferred legislature or winner-take-all, and there remained no clear consensus as to which system produced the best end result – i.e. the clear and incontestable election of a given party’s declared candidate. While the presidential election that followed in 1824 demonstrated a similar degree of diversity in terms of how Electors were chosen, a tipping point had clearly been reached. Alabama and Indiana had shifted from legislature to winner-take-all, Massachusetts changed from district to winner-take-all, and Missouri moved from legislature to district. While this might not seem like a particularly drastic change, the end result was undeniably profound: six states each supported legislature and district while twice as many practiced winner-take-all. For whatever reason, in answer to whatever impulse, the state parties had begun to coalesce around the method of election that would forevermore define the Electoral College.       

   This development accelerated rapidly through the elections of 1828 and 1832. The former year saw only six states recognize methods other than winner-take-all (four to two in favor of district elections), and the latter year could boast only two (Maryland, which continued to favor district elections, and South Carolina, which stuck stubbornly to legislative appointment). By 1836, South Carolina was the sole exemption to what had clearly become the rule for selecting members of the Electoral College. Thereafter, winner-take-all would be the default method for every state, established or incoming, with only a handful of exceptions. Nevada (admitted in 1864) and Colorado (admitted in 1876), both acceded to the federal union too late in an election years to hold a popular vote under the winner-take-all model and were thereby forced to resort to the legislative appointment method. In 1868, Florida was similarly unable to schedule a state-wide vote quickly enough following its re-admission to the United States following the Civil War. It was therefore also obliged to allow its legislature to appoint a slate of Electors. Since 1876, only two states have ever practiced anything other than the winner-take-all method. Maine switched from winner-take-all to district elections in 1976 and Nebraska followed suite twenty years later. Both still practice the district election method as of 2016, while their forty-eight brethren unanimously favor winner-take-all.