Defender in Chief: Donald Trump's Fight for Presidential Power

By John Yoo

In Defender in Chief, celebrated constitutional scholar John Yoo makes a provocative case against Donald Trump's alleged disruption of constitutional rules and norms.

Donald Trump isn't shredding the Constitution—he's its greatest defender.

Ask any liberal—and many moderate conservatives—and they'll tell you that Donald Trump is a threat to the rule of law and the U.S. Constitution. Mainstream media outlets have reported fresh examples of alleged executive overreach or authoritarian White House decisions nearly every day of his presidency. In the 2020 primaries, the candidates have rushed to accuse Trump of destroying our democracy and jeopardizing our nation's very existence.

Yoo argues that this charge has things exactly backwards. Far from considering Trump an inherent threat to our nation's founding principles, Yoo convincingly argues that Washington, Jefferson, Madison and Hamilton would have seen Trump as returning to their vision of presidential power, even at his most controversial. It is instead liberal opponents who would overthrow existing constitutional understanding in order to unseat Trump, but in getting their man would inflict permanent damage on the office of the presidency, the most important office in our constitutional system and the world.

This provocative and engaging work is a compelling defense of an embattled president's ideas and actions.

• Language: English
• Publisher: Macmillan Publishers
• Release date: Jul 28, 2020
• ISBN: 9781250269614

John Yoo

JOHN YOO is Emanuel S. Heller Professor of Law at the University of California at Berkeley and a fellow of the American Enterprise Institute and the Hoover Institution He has served as Deputy Assistant Attorney General and General Counsel for the U.S. Senate Judiciary Committee. He holds an A.B. from Harvard University and a J.D. from Yale Law School.

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INTRODUCTION

The Constitution has become the sword for Democrats who want Donald Trump removed from office. In her December 5, 2019, speech formally calling for articles of impeachment, House Speaker Nancy Pelosi declared, The president’s actions have seriously violated the constitution, especially when he says and acts upon the belief ‘Article 2 says I can do whatever I want.’ No. She portrayed Trump’s actions as a fundamental threat. His wrongdoing strikes at the very heart of our constitution. A separation of powers, three co-equal branches, each a check and balance on the other. A republic, if we can keep it, said Benjamin Franklin.¹ Senate Minority Leader Chuck Schumer agreed: If we don’t reckon with President Trump’s persistent transgressions, the very foundation of this great republic is at risk. The president kept pushing and pushing and pushing the constitutional envelope. Finally, the president’s conduct made an impeachment inquiry unavoidable.²

Democratic critics have made violations of the Constitution a regular part of their litany attacking the Trump presidency for breaking the law. Hillary Clinton took to the airwaves in September 2019 to dismiss President Trump as an illegitimate president and a corrupt human tornado, and to declare that he knows he stole the 2016 election."³ Her 2016 vice presidential candidate shared the view of Trump’s unconstitutional conduct. President Trump’s decision to launch airstrikes against Syria without Congress’s approval is illegal and—absent a broader strategy—it’s reckless, Senator Tim Kaine said in 2018 after U.S. missile strikes against the Assad regime.⁴ Liberal Harvard Law professor Laurence Tribe, perhaps the most distinguished constitutional law scholar of his generation, barely gave Trump time to adjust his desk chair before declaring the Constitution violated. I wouldn’t say he’s bumping into the Constitution, he’s crashing through it, Tribe said on January 31, 2017. Tribe, who joined a lawsuit against Trump over, of all things, the Emoluments Clause, declared, I’ve never seen anything like this in my lifetime.⁵

This book will explain why Trump has not become the Constitution’s destroyer, but instead its most unlikely defender. Rather than a sword, the Constitution has become Trump’s shield. Even though he had not had any previous government or military office or public policy experience, Trump has defended the constitutional text, structure, and design for an independent, vigorous executive. Trump has fought off the efforts of progressives who have wanted to revolutionize our constitutional order by vesting ever more power in a permanent bureaucracy of virtually limitless authority and to undermine institutions designed to channel and balance pure majority rule. Whether consciously or by following his own political incentives (which the Constitution itself creates, as we will see), Trump has become a far more stout defender of our original governing document than his critics have. Should he win a second term, Trump’s exercise of presidential power to protect the nation’s security, slim the federal government, and appoint originalist judges may engineer a radical return of our constitutional system to its founding roots.

If friends had told me on January 21, 2017, that I would write a book on Donald Trump as a defender of the Constitution, I would have questioned their sanity. I had not voted for Trump in the 2016 primary or general elections. His many personal and professional flaws, including his bankruptcies, sexual scandals, crude and cruel language, repelled me. I saw him as a populist, even a demagogue, who had not prepared for the heavy responsibilities of the presidency. My study of the separation of powers, and my time in the three branches of government, led me to worry that Trump would test, evade, or even violate the Constitution. And let us just say that the University of California at Berkeley, my place of work for nearly three decades, did not foster an environment for Trump supporters.

Boy was I wrong. Trump campaigns like a populist but governs like a constitutional conservative. Throughout American history, presidents who believe they represent a popular movement have sought to overturn established constitutional practices. Thomas Jefferson, Andrew Jackson, Abraham Lincoln, Franklin Roosevelt, and Ronald Reagan did not just win the presidency with broad support; they sparked revolutions in constitutional understandings. They aggressively wielded presidential power to advance their political agendas against a resistant establishment.⁶ But these greatest American presidents succeeded because their circumstances demanded the vigorous exercise of executive power. I worried that Trump would draw upon the great reservoir of presidential power during times that did not need it.

After Trump won the Republican primaries, he gave traditional Republicans a lot to like. Tax cuts and deregulation would jump-start the economy, which had recovered listlessly after the Great Recession. Appointing conservative judges would end the cultural wars in the courts and return social questions to the democratic, federal, political process. Recognizing the rising threat of China, he would rebuild a military hollowed out by years of sequesters and spending caps, one that had played defense on the new battlefields of cyber, drones, and space. But he also broke with Republican orthodoxies on generous immigration and international trade, where union-led Democrats had the longer record of hostility toward the free movement of people, goods, and capital. While I never signed the Never Trumper letters that freely circulated among former Bush national security officials, I could not bring myself to support the nominee of my party because I felt that his rashness could lead to a foreign policy disaster, even if he were to appoint a conservative Supreme Court or cut taxes.

In the first few months of the Trump presidency, I even wrote an op-ed in the New York Times to warn about executive power run amok.⁷ I have consistently defended the presidential power, such as the right to wage war unilaterally, of George W. Bush, in whose administration I served, but of Barack Obama and Bill Clinton too. But President Trump’s first moves gave even me pause. During the campaign, he had displayed little knowledge of the Constitution—recall that he thought the Constitution had 11 or 12 articles. It only has 7. He claimed the unilateral right to build a wall along the Mexican border without congressional funding or authorization. His first executive order banning travel from Muslim nations violated the Religion Clauses of the First Amendment. He threatened to terminate the North American Free Trade Agreement, which takes the form of a law passed by Congress rather than a treaty. Even Alexander Hamilton, our nation’s most ardent proponent of executive power, would be worried by now, I suggested.

Trump is disrupting the political system, perhaps for good. He has transformed presidential speeches, for example, from formal addresses into stream-of-consciousness rallies. He speaks directly to the American people through social media, randomly calls in to Fox News shows, and engages the press in off-the-cuff, spontaneous arguments. Trump’s direct talk to the American people has banished the formal Oval Office address and press conference to the dustbin of history—thankfully. Trump has brought the combative politics that he brandished on the campaign trail into the Oval Office. He boasted about the size of his inauguration crowds, refused to release his tax returns, attacked so-called federal judges who ruled against him, and labeled a range of news stories and media organizations as FAKE NEWS. He attacked opponents with a variety of nicknames, such as Pocahontas for Senator Elizabeth Warren, Crooked Hillary for Clinton, and Shifty Schiff for Representative Adam Schiff of California. He threatened to inflict fire and fury on Little Rocket Man North Korean leader Kim Jong Un. Trump seemed to delight in violating the rules of political correctness whenever he could.

We could explain much of Trump’s political brashness and destructiveness by referring to the American people’s desire to disrupt the country’s ossified political system, which he called the Swamp. No doubt he had the good fortune in 2016 to run against Hillary Clinton. Despite her sterling résumé as first lady, senator, and secretary of state, Clinton campaigned terribly and made elemental mistakes, such as taking the Midwestern states of Pennsylvania, Michigan, and Wisconsin for granted. If Trump had a past dogged by scandal, ethical controversies, and shady business deals, he could have found no better opponent to run against than Hillary Clinton.

But Trump represented more than an anyone-but-Clinton impulse. Any of the establishment Republicans on the 2016 primary debate stage could have filled that role nicely. Wisconsin governor Scott Walker or Texas senator Ted Cruz would have ably carried the Republican flag into battle against Clinton. But as Victor Davis Hanson has argued, the American people wanted more. They wanted a president whose speech, mannerisms, and policies came from so far outside the political system that he might even bring down the existing political order. Trump echoes no one less than Andrew Jackson. Jackson had fought duels, owned slaves, killed Native Americans, hanged spies, and carried a lifelong hatred of both the British (because of his service as a boy soldier during the Revolutionary War) and the east coast cultural elite. He had no famous, learned, or wealthy ancestors, did not attend college, and raised himself up by the bootstraps to become the nation’s savior at the Battle of New Orleans and the first president who could claim to head a popular movement. Like Jackson, Trump promised to attack the governing elites of both parties with a no-holds-barred style rather than polite debate. Populists like these usually strain at the Constitution’s limits to fulfill their electoral mandates.

But a funny thing happened—or didn’t happen—during the Trump storm. The new president did not brandish any novel assaults on the Constitution. His opponents did. Democratic presidential candidates, such as Senators Elizabeth Warren and Kamala Harris and South Bend, Indiana, mayor Pete Buttigieg, among others, called for expanding the size of the Supreme Court from 9 to 15 justices so that the next Democratic president could pack it with liberals. They have threatened to impeach Justice Brett Kavanaugh for sexual harassment claims that the Senate fully aired before voting to confirm him in 2018. In spring 2019, Democratic senators Brian Schatz, Dick Durbin, Dianne Feinstein, and Kirsten Gillibrand introduced a constitutional amendment to abolish the Electoral College. Democratic representative Alexandria Ocasio-Cortez explained that the Electoral College is a shadow of slavery’s power on America today that undermines our nation as a democratic republic.⁸ Progressive intellectual leaders and retiring representative John Dingell, the longest-serving member of the House, want to abolish the Senate too.⁹

Democrats would do even more damage to the constitutional order if they were to win the 2020 elections. They plan to implement proposals for a Medicare-for-all healthcare system that would abolish private insurance, impose federal wealth or sales taxes that violate the income tax amendment, and nationalize areas of state competence ranging from criminal justice to consumer contracts to property. Trump protected the Constitution merely by winning the 2016 election through the Electoral College, governing with the Senate, and stopping Democratic efforts to bestow vast new powers on a permanent, unaccountable bureaucracy in Washington, D.C.

But Trump’s defense of the constitutional order went beyond simply stopping bad ideas. His battle for the Constitution took three basic forms. First, he fought Robert Mueller’s special counsel investigation and the Ukraine impeachment, which challenged the president’s authority to govern the executive branch and to fulfill his constitutional duty to take care that the laws be faithfully executed. By prevailing, Trump obeyed the Constitution’s command for an energetic unitary executive who would participate in a separation of powers where each branch remains independent of the other. Second, he stood up for traditional executive leadership in foreign affairs and war. While Congress may seek to advance different policies through spending or legislation, the Constitution designed the executive branch to have the advantages of unity, speed, and decision, specifically so that it could protect the national security and pursue our interests abroad. Third, Trump appointed a Supreme Court that could return the Constitution to its original understanding on questions ranging from governmental power to individual liberties.

This book will explain how Trump’s political battles have become part of a larger struggle to defend the original Constitution from progressives who would transform it. chapter 1 argues that Trump’s election fulfilled the Framers’ purposes behind the Electoral College and rejects accusations that the Constitution’s method of presidential selection is racist. chapter 2 presents the heart of this book’s theory by describing the nature of executive power and the Founders’ design of the presidency. chapter 3 reveals the special counsel and impeachment investigations to be challenges to the presidency’s independence and energy by the permanent law enforcement and national security bureaucracies. chapter 4 shows how Trump has used his executive power to replace the Obama administration’s efforts to expand the federal government with a deregulatory agenda that has sparked the economy.

To defend Trump’s constitutional positions is not to agree with his policy views. In particular, I do not share Trump’s restrictionist approach to immigration or his suspicion of free trade and the American-led postwar order. Nevertheless, as president he has the legal right to devise and carry out most of those policies. chapter 5 addresses his immigration policies, in particular his border wall, the travel ban, and birthright citizenship. Chapters 6 and 7 argue that Trump can draw upon the executive powers over foreign affairs and war to introduce a new doctrine that reorders America’s grand strategy abroad. If the Trump presidency ends up pulling back America’s global commitments, I would regret the moves and question whether they serve our national interests, but they would represent another Trump campaign promise kept.

Trump’s exercise of executive power may not even represent his greatest impact on the Constitution. chapter 8 discusses the battle over his Supreme Court nominees, Neil Gorsuch and Kavanaugh, and the broader effort to place conservatives on the lower courts. Trump may exceed all other presidents not just in the youth and number but also in the ideological commitment of his judicial picks, who will interpret the Constitution for decades after he leaves office. chapter 9 takes up impeachment. As we will see, the Framers designed impeachment to be a rare tool for extraordinary circumstances that go beyond partisan fighting. By vigorously contesting the process of his impeachment, Trump has defended the Constitution’s design of a presidency against any Congress all too willing to convert impeachment into a tool of everyday political combat.

At the end of this book, I consider the larger lessons of the Trump presidency. He is a contradiction that scrambles many of the traditional assumptions of the presidency. Even though he did not represent the choice of the majority of the population, he has governed as a populist who rejects moderation and accommodation. He has acted as a political bad boy, in Hanson’s terms, who has sought to overturn the established political order. Yet, Trump has not followed in the constitutional footsteps of past populists. While he has broken political norms, he did not seek to break constitutional understandings. In part, Trump did not need to seize new powers because the presidency already provides them. We have already delegated great authority to our chief executives as our world has become more complex and the challenges abroad have become more dire. But Trump could also achieve his political agenda because he has returned to the Framers’ original vision of the presidency as an office of unity, vigor, and independence. In securing the benefits of an energetic executive for his successors, Trump may have done the nation his greatest service.

CHAPTER 1

YOU’RE HIRED!: TRUMP AND THE ELECTORAL COLLEGE

For a populist, Donald Trump ironically owes his presidency to a Constitution that limits democracy.

On Election Day, 65,853,514 Americans voted for the Hillary Clinton/Tim Kaine ticket. Only 62,984,828 chose Donald Trump and Mike Pence.

But thanks to the Constitution, Trump won. The Founders rejected the direct popular election of the president. Instead, they required in the Constitution that voters choose electors, who meet to select a president and vice president. Each state receives electoral votes equal to their representation in the House and the Senate. Because it grants each state two extra votes for their senators, the Constitution gives an advantage to smaller states. The smallest state in the Union by population, Wyoming (563,626 residents in 2010), receives three electoral votes, while the largest, California (37,253,956 residents), receives 55.¹

Trump won the vote of the electors 304–227. While Clinton won the popular vote by 48 to 46 percent, Trump won by a comfortable 57 percent of the electors.² Even though Trump did not fulfill the Framers’ original purpose behind the Electoral College, he won fair and square under the rules.

Critics immediately attacked Trump’s legitimacy. The New York Times declared the Constitution’s system for selecting the president antiquated and called for replacing it with a direct national vote.³ The Electoral College, it argued, is more than just a vestige of the founding era; it is a living symbol of America’s original sin because it originally advantaged slave states in the electoral count. Hillary Clinton agreed that the Electoral College needs to be eliminated, and 2000 presidential candidate Al Gore argued that adopting a popular vote for president will stimulate public participation in the democratic process like nothing else we could possibly do. Senator Barbara Boxer filed a lawsuit to overturn the results of the electoral vote and declared, [t]he Electoral College is an outdated, undemocratic system that does not reflect our modern society, and it needs to change immediately.⁴

These critics could appeal to an unlikely ally: the winner of the 2016 contest. Four years earlier, Trump had declared that the Electoral College was a disaster for democracy.⁵ Shortly after his 2016 victory, he even conceded that he would rather see it where you went with simple votes. You know, you get 100 million votes, and somebody else gets 90 million votes, and you win.⁶ He recognized that winning a direct popular election would require a different strategy. As he said in April 2018, I would rather have a popular election, but it’s a totally different campaign. If you’re a runner, you’re practicing for the hundred-yard dash as opposed to the mile.⁷

Attacks on the Electoral College after the 2016 elections echoed the controversy surrounding the 2000 contest. While Democratic candidate Al Gore barely won the popular vote, 50,999,897 to 50,456,002, George W. Bush won the Electoral College vote 271 to 266. Only a monthlong dispute, and the intervention of the U.S. Supreme Court in Bush v. Gore, awarded Florida (by a 537-vote margin)—and the Electoral College majority—to Bush. Critics then argued that Bush too lacked legitimacy because he had lost the popular vote. But while the 2000 election ended up in a virtual dead heat, the 2016 election decisively awarded the popular vote to Hillary Clinton. Trump became only the fifth president—along with John Quincy Adams (1824), Rutherford Hayes (1876), Benjamin Harrison (1888), and George W. Bush (2000)—to lose the popular vote.

Trump’s victory prompted critics to attribute an even more nefarious purpose to the Electoral College than simply moderating democracy. In addition to Ocasio-Cortez and the New York Times, serious legal scholars made similar charges that tied the Electoral College to slavery. Of Trump’s victory, law professor Akhil Amar declared, [s]tandard civics-class accounts of the Electoral College rarely mention the real demon dooming direct national election in 1787 and 1803: slavery.⁸

Accusations of racism follow Trump wherever he goes, but they miss the mark here. Instead of a white supremacy device, the Electoral College imperfectly balances nationalism with federalism and leavens democracy’s passions with deliberation. It may seem ramshackle today, but the Electoral College advances the people’s voice over the centrifugal forces of states and local interests.

I.

The Electoral College remains vulnerable to attack because it can select presidents who lack majority support. A number of candidates have done exactly that. This includes not just presidents who lost the majority vote, such as Donald Trump and George W. Bush, but also those who only won a plurality, such as Clinton, Nixon, Kennedy, and Truman. Abraham Lincoln in 1860 and Woodrow Wilson in 1912 did not win a majority of the vote. Pure democracy does not always produce the best outcomes.

The system gives candidates an incentive to ignore large parts of the country and focus their efforts on states where elections are close. States choose to award all of their electoral votes to the winner, rather than dividing them proportionally. Therefore, candidates rationally will not campaign in states where they have little chance to prevail. Trump did not challenge Clinton in California, where Democrats had majorities in the millions, while Clinton did not contest Texas. Most campaigns will invest their energies on competitive states with rich elector hauls. These battleground states may have little similarity or importance to the nation as a whole, while states with large populations can go uncontested.

The winner-take-all rule in almost all states creates the possibility of a president who wins the most electoral votes while simultaneously losing the national popular vote. A strategic candidate could win bare popular majorities in enough states to carry the Electoral College, even while losing the most populous states by large margins. While about half of America lives in California, Texas, Florida, New York, Pennsylvania, Illinois, Ohio, and Georgia, those eight states have only 226 out of the 270 electoral votes needed to win. A candidate could assemble the electoral votes of the smallest states, essentially concede the largest states, and still prevail. Whether by intention or luck, Trump won with this strategy. Though he took Texas and Florida, Trump did not compete for California, New York, or Illinois. The Constitution’s allocation of electors, with its extra two votes per state, allowed him to win the election while losing the popular vote.

The Constitution’s protections for federalism explain this feature of the Electoral College. Article II establishes: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors. In the earliest American elections, states used a variety of methods for choosing electors. While the South Carolina legislature would continue to choose electors until the Civil War, most states soon adopted the popular vote. But the states also adopted a rule that reinforced the federalist nature of the electoral system. Most states follow a winner-take-all rule that awards all of a state’s electoral votes to the winner of the statewide popular vote. Win a plurality of the popular vote within enough states that hold 270 electoral votes, and a candidate wins the election, even without a national majority.

States could prevent Donald Trump from winning reelection. They need only to allocate their electoral votes proportionally. If Trump were to win Pennsylvania by a margin of 60 to 40 percent, the state would award 12 votes to him and 8 to his challenger. Only Maine and Nebraska, however, divide their votes. States realize that under the current system, candidates will concentrate their time and resources in states where they have a chance to win all of the electoral votes. It is the states (both big and small), rather than the Constitution, that allow a candidate to win without a majority of the popular vote.

The Constitution pays more solicitude toward the states. If no candidate gains a majority of the Electoral College, the Constitution throws the election to the House of Representatives. There, each state delegation has one vote—giving Delaware the same weight as California. If a third-party candidate can block an Electoral College majority, the selection of the president does not just fall to the states, it also becomes subject to legislative deal-making. In 1824, Andrew Jackson won the most electoral votes, but he fell short of a majority. When the election went to the House, it chose John Quincy Adams instead, with Henry Clay allegedly exchanging his support for appointment as secretary of state.

In the wake of the 2000 and 2016 elections, a new criticism has arisen: racism. The records of the Convention show that in fact the connection between slavery and the college was deliberate, and very much on the minds of many delegates, including James Madison, argues professor Paul Finkelman.⁹ Because the Electoral College awards electors chiefly on the number of House representatives, Amar notes, it originally incorporated the Constitution’s count of slaves as three-fifths of a person for allocating House seats among the states. This gave the slaveholding states a crucial advantage in the selection of both the House of Representatives and the president. By 1800, Pennsylvania had 10 percent more free people than Virginia, but it had 20 percent fewer electoral votes.¹⁰ Finkelman observes that John Adams would have won the 1800 election over Thomas Jefferson if the Constitution had only counted free citizens for Electoral College purposes.¹¹ Jefferson metaphorically rode into the executive mansion on the backs of slaves, writes Amar.¹²

This new claim attacks not only Trump, but also the system we have used to choose presidents for more than two centuries. It adds to efforts to replace the Electoral College with a direct national election of the president. But, as the next section will show, race had little to do with the adoption of the Electoral College. While a stray comment in the Constitutional Convention may have pointed out its benefits to the southern states, this argument did not come to public attention during the ratification debate. Any benefit disappeared with the erasure of the Constitution’s protection for slavery during the Civil War and Reconstruction.

II.

The Electoral College provoked little debate during the Constitution’s ratification by the states. The mode of appointment of the Chief Executive, Alexander Hamilton observed in Federalist No. 68, is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents.¹³ He even declared, I venture somewhat further, and hesitate not to affirm that if the manner of it be not perfect, it is at least excellent.

Hamilton may have accurately described the discussion in the state conventions that approved the Constitution. Opponents there—the Anti-Federalists—devoted most of their energies to attacking the expansion of federal power, the Senate’s strange mixture of roles, and the lack of a Bill of Rights. If the Electoral College held a racist purpose to defend slavery, it did not appear obvious to those who ratified the Constitution.

But Hamilton’s words could not fairly describe the Constitutional Convention, which first drafted our founding document. It invented the Electoral College to balance the same competing values that determined the Constitution’s overall design: big states versus little states, nationalism versus federalism, North versus South, free states versus slave states.¹⁴ The first draft of the Constitution, the Virginia Plan, proposed an executive chosen by the National Legislature.¹⁵ When debate opened on June 1, 1787, Pennsylvanian James Wilson argued that in theory he was for an election by the people.¹⁶ The experience in Massachusetts and New York showed that an election of the first magistrate by the people at large, was both a convenient and successful mode. Roger Sherman of Connecticut took immediate exception. He was for the appointment by the Legislature, and for making him absolutely dependent on that body.¹⁷

If the Virginia Plan had prevailed, our chief executive would look similar to that of a European democracy. In these parliamentary systems, the majority party of the legislature chooses a prime minister to lead the executive branch. No true separation of powers exists between the two branches. Many Framers, however, believed that legislative control in the revolutionary states had produced unstable and unfair laws, government favoritism and partisanship, and flagrant abuse of property and contract rights.¹⁸ To reduce congressional influence over the president, Wilson persuaded the Convention to limit the executive to a single seven-year term, without possibility of reelection.¹⁹ But he could not persuade the delegates to discard legislative selection of the president.²⁰

Small states had even greater objections to the Virginia Plan. Their alternate draft, the New Jersey Plan, gave each state equal representation in Congress regardless of population. The conflict between large and small states paralyzed the Constitutional Convention. It ended in the Great Compromise, which divided Congress into the popularly elected House and the state-representing Senate. The Senate became the central institution in the legislature: legislation could not pass without its cooperation; presidents could not make treaties or appoint judges or cabinet officers without its advice and consent; constitutional amendments could not go to the states without its agreement; it acted as the judge and jury in impeachment trials. With legislative selection still in the draft, the states held an effective veto over the president.

Large states reacted by fighting to shift authority from the Senate to the president and to break presidential dependence on Congress.²¹ Reopening debate over presidential selection on July 17, Gouverneur Morris demanded that the president ought to be elected by the people at large, by the freeholders of the Country, who would never fail to prefer some man of distinguished character, or services, some man, if he might so speak, of continental reputation.²² If Congress selected him, on the other hand, he will be the mere creature of the Legisl[ature], and the choice would be the work of intrigue, of cabal, and of faction. Wilson proposed that only deadlocks in the election would go to Congress.

Supporters of congressional selection stressed concerns that have returned in the Trump years. Sherman argued that the people would never be sufficiently informed and would tend to choose candidates from their own states, which would give larger states the advantage. Charles Pinckney of South Carolina feared a few active & designing men would manipulate the people, or that the most populous States by combining in favor of the same individual will be able to carry their points.²³ Even though he was from a large state, Virginian George Mason agreed that the extent of the Country made it nearly impossible for the people to have the requisite capacity to judge the candidates.²⁴ It would be as unnatural to refer the choice of a proper character for a Chief Magistrate to the people, Mason declared, as it would, to refer a trial of colours to a blind man. Mason’s statement often supplies the evidence for those who believe that the Electoral College advanced an anti-democratic agenda. While Mason may well have held such views, he arguably did not influence the Constitution, as he refused to sign the final product and became one of its leading opponents during the ratification.²⁵

It was only at this point that race first arose. Hugh Williamson of North Carolina compared popular election to legislative choice as the difference between app[ointment] by lot, and by choice.²⁶ But this will not be Virg[ini]a however. Her slaves will have no suffrage, Williamson then said.²⁷ He was pointing out a loss of power for the slave states under direct election of the president. Infamously, the Constitution included three-fifths of slaves in a state’s population for allocating seats in the House, even though the South did not allow them to vote. If the Constitution replaced legislative choice with direct election by the people, the southern states would lose their advantage. After Williamson spoke, the Convention rejected direct election.

The delegates soon backtracked. In late July, the Convention made the choices that led to the Electoral College. Nationalists first succeeded in lifting the single-term limit on the president. They then argued that a president eligible for reelection would become too dependent on Congress. Reopening the battle he had just lost, Morris again moved for the direct popular election. If he is to be the Guardian of the people, let him be appointed by the people.²⁸ Like many of the delegates, Morris believed that unrestrained legislatures posed the greater threat to the people’s liberties. The Executive Magistrate should be the guardian of the people, even of the lower classes, a[gainst] Legislative tyranny. With the president eligible for reelection, a majority of the delegates agreed that Congress should no longer hold the power to choose the executive. A dependence of the Executive on the Legislature would render it the Executive as well as the maker of laws, Madison observed. [T]hen according to the observation of Montesquieu, tyrannical laws may be made that they may be executed in a tyrannical manner.²⁹

Madison joined Wilson in successfully replacing Congress with a vote by the people. But in so doing he also brought race back to the surface. Because legislative selection would introduce intrigues and contentions that would produce an improper connection between the two departments, Madison concluded that the people at large were as likely as any that could be devised to produce an Executive Magistrate of distinguished Character.³⁰ But popular election created an important difficulty. The northern states had granted the right to vote more broadly than the southern states, and the latter could have no influence in the election on the score of the Negroes. To maintain the South’s advantage under the three-fifths rule, Madison declared that the substitution of electors obviated this difficulty and seemed on the whole to be liable to the fewest objections. By a 6–3 vote on July 19, 1787, the Convention approved a motion to adopt the Electoral College system.³¹

Critics believe that this vote revealed a desire to protect slavery and introduced racism into the Constitution. This conclusion, however, does not comport with the vote in the Convention. In the July 19 vote adopting the Electoral College, the states did not vote along slavery lines. William Paterson, who first proposed the system, was a New Jersey abolitionist. The Articles of Confederation had been ashamed to use the term ‘Slaves’ & had substituted a description, he told the Convention.³² Connecticut, Delaware, Maryland, New Jersey, Pennsylvania, and Virginia approved the elector system. Georgia, North Carolina, and South Carolina voted against it. The free states voted unanimously for the electoral system, but so did Virginia, the leading slave state. Only three states—all slave—voted against an Electoral