Legal “scholar” Akil Reed Amar made waves recently by arguing that a single comment from James Madison proves that the Electoral College had an intrinsic pro-slavery bent and was designed to perpetuate the institution. According to Amar, Madison suggested that Virginia’s stature would be hindered by a national popular vote for president, an idea proposed in the Philadelphia Convention by nationalist delegate James Wilson of Pennsylvania. Madison’s position on this matter is not disputed by anyone; a national popular vote surely would have weakened Virginia’s influence in the federal system.

Amar’s argument, however, is a classic case of cherry picking. If Amar is correct, then he has to reconcile the fact that some of the most vocal opposition to a national popular vote came from delegates from states that had already abolished slavery. These men made it clear that Wilson’s proposal was unpopular not because of slavery but because it would have allowed small geographical regions and metropolitan areas to control presidential elections for a Union of states with differing regions, penchants, and dispositions.

For instance, Gouverneur Morris of Pennsylvania, whose state eliminated slavery in 1780, opined that “the great evil of cabal and corruption” could not be avoided under a direct popular vote. Elbridge Gerry of Massachusetts, a State which fully disposed of the institution even earlier, called a national referendum “radically vicious” for these same reasons. Roger Sherman and Oliver Ellsworth of Connecticut, a state that passed its gradual emancipation act of 1784, also raised explicit objections against a presidential election through the people at large. Would Amar thus suppose that these genuine apprehensions toward a national referendum were based on abolitionist tendencies?

In an apparent attempt to disparage the South, Amar also conveniently omits a multitude of actual reasons that delegates from slave states opposed Wilson’s proposal for a national popular vote. Fellow Virginian George Mason quipped that a national popular vote was akin to letting “a blind man choose colors” because voters would not be well acquainted with the positions/doings of candidates from other states. Though not a concern today, this was a real issue in 1787, where most people did not know what the candidates even looked like. Amar even cites the prevalence of this view in his article, correctly noting that several Founders believed Americans “would lack sufficient information to choose directly and intelligently among leading presidential candidates.” This, of course, had nothing to do with slavery, and effectively undermines Amar’s position.

Charles Pinckney of South Carolina noted that his misgivings against such a popular vote system were “obvious & striking,” declaring that one several of the most populous states would be led by a “few active & Designing men,” combining in favor of the same individual despite the chagrin of the rest of the country. John Rutledge of South Carolina opposed a national vote because he favored selection of the executive by Congress, never mentioning Amar’s supposed slavery rationale. This alternative matched James Madison’s original proposal for presidential appointment under a set of resolutions known as the Virginia Plan.

Additionally, Amar selectively omits other reasons Madison argued against such a system, such as when on July 25 he expressed that it would diminish the possibility of corruption and foreign influence, or the overarching fact that Madison did not believe the states should not be equal in the federal system – which influenced his views on a variety of subjects beyond the presidential election mechanism. For instance, Madison wished to preserve Virginia’s relative power in the union through a failed proposal for to apportion both houses of Congress by state population.

Amar also comically suggests that the early presidential elections were demonstrative proof of the Electoral College’s supposed pro-slavery bias, citing the sectional division between northern and southern states in the 1796 election. But the opposite case seems to have been made by the 1800 presidential election. Though it is true that Jefferson would not have won the election had there been no apportionment at all for slaves that year (as the northern delegates in Philadelphia wished), under a national popular vote system Jefferson’s Republican faction would have defeated Adams and the Federalists by an even wider margin. This was because Jefferson and his party coadjutor Aaron Burr reaped 61.4% of the popular vote while Adams and Charles Cotesworth Pinckney gained only 38.6%. In contrast, the Republican candidates obtained 146 electoral votes to while the Federalists received 130, demonstrating that the Electoral College actually made the contest much closer than it otherwise would have been. Besides that, in 1800 Jefferson and Burr won several northern states that had already passed emancipation acts, such as New York and Pennsylvania. Again, would Amar admit that these factors are evidence that a national popular vote would have helped the Jeffersonian Republicans achieve an even greater victory in 1800?

Also appearing to weaken Amar’s argument is his incorrect assumption that the Electoral College inherently benefitted other candidates from slaveholding states. This was certainly not true for candidate Charles Cotesworth Pinckney of South Carolina, a slaveholder who along with Adams failed to win the 1800 election for the Federalists. The supposed pro-slavery orientation of the Electoral College certainly did nothing to assist slaveholder Andrew Jackson, who in 1824 won a plurality of the popular vote but lost the election on account of the House of Representatives choosing an alternative under a deadlocked Electoral College. Instead, non-slaveholder John Quincy Adams was selected. Would Amar therefore admit that this election inversely proved the Electoral College was actually anti-slavery? Using his train of logic, one could persuasively make such an argument.

James Wilson’s proposal in Philadelphia was plainly perceived as radical and objectionable because of the potential to perpetuate mob rule and executive oppression over a large, federally-oriented country.  Despite Amar’s sweeping conclusion, it remains clear instead that all varieties of delegates, whether they came from slave states or states that had already abolished slavery, saw Wilson’s initial plan as undesirable for other obvious reasons, which convinced him to abandon it. Sitting on a committee of eleven delegates that developed the Electoral College system, Wilson agreed to scrap his own popular vote proposal in favor of the more popular alternative.

Sadly, Amar is not the first to reach such a drastic, fallacious conclusion on constitutional features based on faulty premises and selective reasoning. This has been a common tactic among many reactionaries to link any aspect of the Constitution they don’t like to deplorable causes. Cherry picking one Madison quote in an attempt to prove his position is a tragic mistake that undermines honest scholarship and thorough constitutional study. To come to Amar’s deductions on the Electoral College, one must actively ignore the entire breadth of the Philadelphia Convention debates, everything that was said about such a system in the state ratification campaigns, and a battery of contradictory evidence suggesting that slavery had nothing to do with the reasons such a mechanism came to be favored for presidential elections.

Dave Benner

Dave Benner speaks regularly in Minnesota on topics related to the United States Constitution, founding principles, and the early republic. He is a frequent guest speaker on local television and radio shows, and contributes writings to several local publications. Dave is the author of Compact of the Republic: The League of States and the Constitution

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