KINGS ARE BORN; presidents are elected. But how? In Philadelphia in 1787, James Wilson explained, the delegates had been “perplexed with no part of this plan so much as with the mode of choosing the President.” At the convention, Wilson had proposed that the people elect the president directly. But James Madison had pointed out that since “the right of suffrage was much more diffusive in the Northern than the Southern States . . . the latter could have no influence in the election on the score of the Negroes.” That is, in a direct election, the North, which had more voters, would have more votes. Wilson’s proposal was defeated, 12 states to 1. Some delegates to the convention had believed Congress should elect the president. This method, known as indirect election, allowed for popular participation in elections while steering clear of the “excesses of democracy”; it filtered the will of the many through the judgment of the few. The Senate, for instance, was elected indirectly: U.S. senators were chosen not by the people but by state legislatures (direct election of senators was not instituted until the ratification of the Seventeenth Amendment, in 1913). But, for the office of the presidency, indirect election presented a problem: having Congress choose the president violated the principle of the separation of powers.
Wilson had come up with another idea. If the people couldn't elect the president, and Congress couldn’t elect the president, maybe some other body could elect the president. Wilson suggested that the people elect delegates to an Electoral College, a body of worthy men of means and reputation who would do the actual electing. This measure passed. But Wilson's compromise stood on the back of yet another compromise: the slave ratio. The number of delegates to the Electoral College would be determined not by a state’s population but by the number of its representatives in the House. That is, the size of a state’s representation in the Electoral College was determined by the rule of representation—one member of Congress for every forty thousand people, with people who were enslaved counting as three-fifths of other people. The Electoral College was a concession to slave owners, an affair of both mathematical and political calculation.
These calculations required a census, which depended on the very new science of demography (a founding work, the first edition of Thomas Malthus’s Essay on the Principle of Population, appeared in 1798). Article I, Section 2, of the Constitution calls for the population of the United States to be counted every ten years. Census takers were to count “the whole number of free Persons” and “all other Persons” but to exclude “Indians not taxed,” meaning Indians who lived as independent peoples, even if they lived within territory claimed by the United States. This first federal census, conducted in 1790, counted 3.9 million people, including 700,000 slaves. The three-fifths clause not only granted slave-owning states a disproportionate representation in Congress but amplified their votes in the Electoral College. Virginia and Pennsylvania, for instance, had roughly equivalent free populations but, because of its slave population, Virginia had three more seats in the house and therefore six more electors in the Electoral College, with the result that, for thirty-two of the first thirty-six years of the Republic, the office of the president of the United States was occupied by a slave-owning Virginian, with John Adams the only exception.
There remained still more contentious calculations. How delegates to the Electoral College would be chosen had been left to the states. In 1796, in seven out of sixteen states the people elected delegates; in the rest, state legislatures elected delegates. The original idea had been for delegates to use their own judgment in deciding how to cast their votes in the Electoral College, although they hadn't had to make much of a decision in 1788 and 1792, since Washington ran unopposed. But by 1796, two political parties having emerged and a decision needing to be made, party leaders had come to believe that delegates ought to do the bidding of the men who elected them. One Federalist complained that he hadn’t chosen his elector “to determine for me whether John Adams or Thomas Jefferson is the fittest man for President of these United States . . . No, I chose him to act, not to think.”
This ambiguity had resulted in a botched election. Under the Constitution, the candidate with the most Electoral College votes becomes president; the candidate who comes in second becomes vice president. In 1796, Federalists wanted Adams as president and Thomas Pinckney as vice president. But in the Electoral College, Adams got seventy-one votes, Jefferson sixty-eight, and Pinckney only fifty-nine. Federalist electors had been instructed to cast the second of their two votes for Pinckney; this many had failed to do. Jefferson therefore became Adams's vice president, to the disappointment of everyone.
During Adams’s stormy administration, the distance between the two parties widened. Weakened by the weight of his own pride and not content with issuing warnings about the danger of parties, Adams attempted to outlaw the opposition. In 1798, while the United States was engaged in an undeclared war with France, Congress passed the Alien and Sedition Acts, granting to the president the power to imprison noncitizens he deemed dangerous and to punish printers who opposed his administration: twenty-five people were arrested for sedition, fifteen indicted, and ten convicted; that ten included seven Republican printers who supported Jefferson. Jefferson and Madison believed that the Alien and Sedition laws violated the Constitution. If a president overreaches his authority, if Congress passes unconstitutional laws, what can states do? The Constitution does not grant the Supreme Court the authority to decide on the constitutionality of laws passed by Congress; that’s a power that the court decided to exercise on its own, but, in 1798, it hadn't tried yet. Meanwhile, Jefferson and Madison and other Republicans came up with another form of judicial review: they argued that the states could decide on the constitutionality of federal laws. They wrote resolutions objecting to the Alien and Sedition Acts. Madison wrote a resolution for Virginia; Jefferson wrote one for Kentucky. “Unless arrested on the threshold,” Jefferson warned, the Alien and Sedition laws would drive the states “into revolution and blood, and will furnish new calumnies against republican government, and new pretexts for those who wish it to be believed that man cannot be governed but by a rod of iron.”
From These Truths pages 156-8