The Electoral College

We're recording. Before we begin, I'm told there's a problem with the release form.

There is no problem with the form, sir. There is a problem with the third paragraph of the form.

Which is the paragraph that says you won't sue us.

It is the paragraph in which I am made to hold harmless the proprietors of this establishment against every claim "arising from or related to" my appearance, "whether known or unknown, foreseen or unforeseen." I have read a great many instruments of indemnity. I have drawn a great many. I have never seen one that undertook to bind a man against the unforeseen. That is not a contract. That is a prayer.

It's standard.

Standard is a description, not a defense. And the eleventh paragraph purports to convey to you my likeness, in perpetuity, throughout the universe.

The universe language is standard too.

Then I congratulate your profession on its ambition. I have struck the word and initialed the margin. You may have my likeness in the United States and its territories, which I think a generous grant, considering.

Considering what?

Considering that the last man to circulate my likeness widely put it on a ten-dollar note, and I understand you have since ceased to redeem those in specie.

We'll come to the money another time. General Hamilton, welcome.

Colonel will do. The other was late and honorary.

This is The Hitching Post. I'm Peter Corrigan. We're recording this week from the bell tower of the Old North Church in Boston, which is a hundred and ninety-one steps up, has no elevator, and was chosen for this episode by a producer who has since been spoken to. Our guest was born on the island of Nevis, wrote fifty-one of the eighty-five Federalist essays, founded the Treasury, the Coast Guard, and the first national bank, and was killed in a duel at Weehawken in 1804. He's on the ten. Colonel, you made the stairs.

I made the stairs. I was told at the bottom that this was the steeple from which the lanterns were hung in 1775. I was at King's College at the time, drilling in a churchyard with a company of boys, and we heard of it a week later. I confess I have never seen it. It is smaller than the story.

Most of them are.

And I should like it noted that I was put on the ten in 1928, when there was no longer a Federalist alive to object to the company. I am given to understand that Mr. Jackson is on the twenty.

He is.

Twice my value. I did not live to meet him and I am told I would not have cared to.

Noted.

I want to start where you started. March of 1788, the Independent Journal, the sixty-eighth of the essays you and Madison and Jay signed as Publius. You had eighty-five to write and you were writing four a week. How much thought went into the sixty-eighth?

Rather less than into the seventieth, if I am candid, and I see from the papers before you that candor is to be the order of the day. The mode of choosing the executive was the one part of the plan that nobody attacked. Even the Federal Farmer, who found fault with the position of the commas, allowed that the election of the President was pretty well guarded. So I wrote it quickly and I wrote it, I think, well. I have not changed my mind about the reasoning.

Give me the reasoning. Not the essay. What was the thing supposed to do?

Three things, and a fourth. It was to let the sense of the people operate in the choice, without letting the people, in the mass, make the choice directly. It was to place the immediate election in the hands of a small number of men, chosen for that single purpose and no other, who would possess the information and the discernment the business required. It was to guard against tumult, by dividing the electors among the states, so that they assembled in thirteen places on one day and not in one place, where the heats of the moment could pass from man to man like a fever. And it was to make cabal and corruption as nearly impossible as human contrivance could make them. The electors would exist for a few weeks only. Nobody could buy them beforehand because they were not there beforehand. No senator, no representative, no man holding a place of trust or profit under the United States could be among them.

Who were you afraid of?

Foreign powers, chiefly. A crown that wished to raise a creature of its own to the chief magistracy of the Union. And the domestic article, which is worse because it is native. I wrote, and I would write again, that talents for low intrigue and the little arts of popularity might raise a man to the first honors in a single state, but that they would not suffice to establish him in the esteem of the whole Union. The office would require a different kind of merit.

You said the process afforded "a moral certainty" that the office would never fall to a man not "in an eminent degree endowed with the requisite qualifications."

I did.

Moral certainty.

I am aware of the phrase, sir. You need not read it to me twice. I will observe only that in 1788 it was a phrase, and not yet a hostage.

Let me tell you how it works now, and stop me when something needs explaining.

I suspect that instruction will cost you the afternoon.

Every four years, on a Tuesday in November, about a hundred and fifty-five million people vote.

Stop.

That's the number.

That is not a number. That is a census of Christendom. When I wrote Publius the whole population of the thirteen states, counting every child and every soul in bondage, was under four millions. Of those, perhaps one in ten could vote for anything. You are telling me that one hundred and fifty-five millions of persons—

Cast ballots. Yes.

—cast ballots on a single day. In one place, in effect. The very thing the sixty-eighth number was written to prevent.

Not in one place. In about a hundred and seventy thousand places. But they all see the same things, hear the same things, at the same time.

How?

That's a long explanation. Put it down as: every citizen carries a device that shows them what every other citizen is saying.

Every citizen.

Nearly.

And the device is in the pocket. It is the size of the letter-case in yours. Your assistant showed me one in the corridor. It contained, she assured me, the whole of the Federalist and also a mechanism for summoning a coach. I had assumed she was making sport of a stranger.

She wasn't. Can I keep going?

I beg you would. I am now afraid of what comes next, which I take to be the intended effect.

The hundred and fifty-five million people are not voting for electors. Their ballots have the names of the candidates for President on them. But what they're legally doing, in each state, is choosing between slates of electors. Each party has a slate.

Each party.

There are two that matter.

And a party is—forgive me. In my day a party was the thing one accused the other side of being. Publius did not provide for parties.

A party today is a permanent national organization, with offices in every state, a treasury, lawyers, and a year-long process for picking its candidate. The candidates run against each other inside the party first, state by state; the winner becomes the nominee, and the nominee's party puts up a slate of electors in each state, and the electors on that slate have pledged in advance to vote for the nominee.

Pledged.

In most states they're required by law to vote as pledged. The Supreme Court upheld those laws six years ago. Unanimously.

Then let us be precise, because precision is the only revenge available to me. The electors are chosen by a preexisting body of men, which is exactly the thing I said they would not be chosen by. They are bound beforehand, which is exactly what I said could not be done to them. And they deliberate on nothing, because the deliberating was done by the party a year earlier in a process of which the Constitution knows nothing. Have I understood you?

You have.

Then they are not electors. They are clerks. A clerk with a pledge and a statute over him is a copying-machine that can be fined.

Most people couldn't name one of their electors.

Why would they? One does not learn the name of the man who carries the letter. And the candidates. You said they run. Do you mean that literally? That a man who wishes to be President goes about the country asking for it?

For about two years. Sometimes longer.

In my time a man who solicited the presidency would have disqualified himself by the solicitation. Washington had to be dragged to it, or to affect to be dragged, which comes to the same thing in politics. Even Jefferson, who wanted it as much as any man alive, sat on his mountain and let others want it for him. You are describing a system in which the little arts of popularity are not a danger to the office but the road to it.

I'm describing it. I'm not characterizing it.

No. You have been very careful about that. I have noticed.

There's one more piece. In forty-eight of the fifty states—

Fifty.

Fifty. We'll do the map another day.

I should like to see the map. Continue.

In forty-eight of the fifty, the slate that gets the most votes in the state gets all of that state's electors. If you win the state by one vote, you get every elector. The losing side gets none.

All of them. By one vote.

All of them.

That was never in the plan. The plan gave each state electors equal to its senators and representatives, and let the state say how they should be chosen. Some chose by the legislature, some by the people at large, some by districts. I never—

You never what?

I was going to say I never imagined the states would all settle on the mode most calculated to make the electors a bloc and the voters of the minority a cipher. But I did imagine it. It is why I—

We'll get there. Hold that thought. We need to go to Philadelphia.

Dr. Franklin. Are you there?

[on the line] I am here. Whether I am there is the question your machine has been putting to me for some minutes. It has told me twice that my call is important to it.

That was the office line. You're through now.

Then I have a question before you ask me yours. The young woman who installed this apparatus told me I could speak to you from anywhere in the house. I took her at her word and am at this moment in the garden. She did not say the thing would follow me. It is in my waistcoat. It appears to be listening.

It's supposed to be in your waistcoat.

I did not consent to be followed by my furniture. Ask your question.

I've got Colonel Hamilton here. I've just told him that in most states the winner of the popular vote gets every one of the state's electors.

Good afternoon, Colonel.

Doctor.

He's taking it badly, I expect. He always did dislike a thing he hadn't thought of first. Mr. Corrigan, I will tell you what strikes an old man about your arrangement. You have contrived to make a state that votes fifty-one to forty-nine indistinguishable from a state that votes ninety to ten. That is a great feat of compression, and I would admire it as an engineer. As a citizen it seems to me to throw away nearly half the information you went to the trouble of collecting.

That's the argument against it.

It is also the argument against a great many things. I make no recommendation. I am eighty-four years old and in a garden. Good day to you both. I am going to put this thing in the shed.

He does that.

He always did. A question, before we go on, since the Doctor has put me in mind of expense. Candidates who go about the country for two years must be maintained. What does one spend?

The two sides together, in 2024, something over five billion dollars.

I funded a national government on four millions a year. Whose money?

Donations. Some small, some very large.

Then the persons who might be tampered with beforehand are not the electors. They are the candidates, and they are tampered with in public, by subscription. That is at least an improvement in candor. Where were we?

You were about to tell me what you did when you imagined the states going to a bloc system.

I was. But you have a paper in your hand that you have been holding for some time, and I think you mean to read it to me first.

May 7th, 1800. You're in New York. The state legislative elections have just been counted and your side has lost the city, lost Long Island, lost Westchester. Under New York law the legislature chooses the presidential electors, so the new Republican legislature will choose Jefferson's. You write to the governor, John Jay, your friend and your co-author. I'll read it.

I know what it says.

"The moral certainty therefore is that there will be an Anti-federal Majority in the Ensuing Legislature, and the very high probability is that this will bring Jefferson into the Chief Magistracy; unless it be prevented by the measure which I shall now submit to your consideration, namely the immediate calling together of the existing Legislature." The existing legislature being the one your party controlled and which had just been voted out.

Continue.

"I am aware that there are weighty objections to the measure; but the reasons for it appear to me to outweigh the objections. And in times like these in which we live, it will not do to be overscrupulous. It is easy to sacrifice the substantial interests of society by a strict adherence to ordinary rules."

Yes.

You were asking the governor to call back the defeated legislature so it could change the rules for choosing electors before the winning legislature took its seats. Four days after the election.

I was asking him to have the electors chosen by the people, in districts, instead of by the legislature. Which is the mode I had always preferred. Which I had argued for at the convention and would argue for again. Which is the mode three states then used and which, if you had let me finish before Philadelphia, I was about to tell you I proposed to write into the Constitution itself.

Two years later.

Two years later.

After you'd lost.

After the country had seen what the other mode produced, which I will come to. You wish me to say that the timing was the offense. Very well: the timing was the offense. I said as much in the letter. I called it a proceeding out of the common course, and I said the motive ought to be frankly avowed and the reasons stated to the legislature in plain terms. I did not propose to do it in the dark.

You proposed to do it. Jay didn't answer you. He wrote on the back of your letter—I have it here—"Proposing a measure for party purposes which I think it would not become me to adopt." And he filed it.

John Jay was a better man than I was. I have had a long time to consider the question and that is the conclusion I have reached, and I do not reach it easily. But you must allow me the whole of my position or none of it. I believed, in May of 1800, that the party then coming into power was in correspondence with the French Directory, that its chief was a Jacobin in principle if not in practice, and that the safety of the government I had spent my life building was at stake. I was wrong about the degree of the danger. I was not wrong that I believed it. A man who believes the house is on fire and breaks a window is not the same as a man who breaks a window.

From outside the house, how does anyone tell the difference?

They cannot. That is the whole difficulty of republican government, and it is why the sixty-eighth number was written: to build a house in which the windows need not be broken, because the fire could not start. And I have spent the afternoon learning that the windows are gone and the walls are made of pledges.

You didn't answer the question.

I answered it. The answer is that they cannot tell, and therefore every man who breaks a window must be presumed to be the second kind, and punished as such, and the ones who were the first kind must bear it. I bore it. Jay saw to that. I would have you note that he did it by filing a letter, and not by calling out the militia, and that this is the difference between a republic and the alternative.

Six months later the fire you were afraid of came from a different direction. The electors met in December 1800. Jefferson and his running mate, Aaron Burr, got exactly the same number of votes.

Seventy-three each. Because the electors could not designate which man they intended for President and which for Vice. A defect in the original plan. Mine among others.

So the House of Representatives had to choose between them, and the House was still controlled by your party.

By the Federalists. I had ceased, by then, to think of it as my party in any sense that gave me the right to command it.

And the Federalists in the House wanted Burr.

They wanted to punish Jefferson. Burr was the instrument nearest to hand.

And you spent the winter writing letters begging your own party to elect Thomas Jefferson. Who you'd spent ten years calling a Jacobin and a dupe of France.

I did.

I want to read one of them. This is to James Bayard, the only congressman from Delaware, whose one vote could decide it. December 27th, 1800. "Be assured my dear Sir, that this man has no principle public or private."

Burr.

Burr. And a week later you sent Bayard a confidential memorandum. You called it Opinions on Aaron Burr. I'll read the substance. "He is in every sense a profligate; a voluptuary in the extreme, with uncommon habits of expense; in his profession extortionate to a proverb." That he was "insolvent for a large deficit," that "all his visible property is deeply mortgaged," that "his very friends do not insist upon his integrity." That "no man has trafficked more than he in the floating passions of the multitude." That he was "for or against nothing but as it suits his interest or ambition." And that any changes he made in government would be "such as to serve the turn of his own power."

Every word of which was true, and was the reason I am here in this chair rather than in Weehawken. Go on.

I'm going to ask you a question, and I'm going to ask you to take it as I put it. Does the system you designed have a mechanism, today, for stopping a man like that?

You have described the system to me for an hour with great care and no adjectives, and I have now understood why. The mechanism was the electors. You have told me they are clerks. The second mechanism was the House, choosing among the leading men when no majority centered on one. You have told me the House is composed of the parties, and that the parties are the very bodies that chose the clerks. The third mechanism was that a man whose only gifts were the little arts of popularity could not establish himself across so wide a Union. You have told me that the Union is now in every man's pocket, and that the arts of popularity are practiced there at a cost of five billions.

So?

So the answer to your question is no. There is no mechanism. There is only the thing there was in February of 1801, which is that some men in the House might be persuaded to prefer an enemy with principles to a friend with none. I persuaded Bayard. It took thirty-six ballots and he did it by abstaining. I would ask you whether the men now in that House can be so persuaded, and I observe that you are not going to tell me.

I'm not.

Then you have told me.

I've told you nothing. I've asked you about a document you wrote about a man who's been dead two hundred years.

Sir, I wrote the Report on Manufactures. I know what it is to be handed a set of facts and asked to draw no conclusion. I will draw only this one, which is historical and offends no one living: in 1801 the choice between Jefferson and Burr was still offered to the country. The choice, I mean, between a man I thought wrong in every principle and a man who had none. I preferred the first with my whole strength. What I should like to know, and what you will not say, is whether that choice is still offered, or whether the two have been combined into one candidate for the sake of efficiency.

We're going to take a minute for the mail. Colonel, you're welcome to listen or to look at the view.

I will listen. I have looked at the view. It is mostly roofs.

When Mr. Jay was here, on the Treaty of 1794, the one with his name on it, and on being burned in effigy in every port from Portsmouth to Charleston. A listener in Salem writes: "Jay told you he signed the best treaty he could get and that the country was in no condition to fight for a better one. Fine. But he also told you the mobs were 'ill-informed,' and you let it go. My family were Salem shipowners. The British had taken two hundred and fifty American ships the year before. The mob was informed. Ask him whether he'd have signed it if he'd owned a ship." We did reach out to Mr. Jay, and this is his response.

[recorded] The gentleman from Salem asks whether I would have signed had I owned a ship. I would have, and for the reason his family's ships gave me: they had taken two hundred and fifty of them, and would have taken five hundred more, and we had no navy, and a war would have taken all of them. I did not say the mobs were ill-informed about the ships. I said they were ill-informed about the alternative, which was not a better treaty but no treaty, and I have not met a man since who could tell me what a better treaty would have been that Lord Grenville would have signed. I was burned in effigy in Salem. I was told I could have walked the length of the coast by the light of it. I would ask the gentleman only this: his family's ships sailed for the next eighteen years under the peace I bought with my reputation, and I should like to know whether they made money.

Colonel, you defended the Treaty in the papers. Thirty-eight essays as Camillus, over five months.

Twenty-eight of them mine; Mr. King wrote the rest. I was also stoned for it, on Broad Street, in July of '95, while attempting to explain it to a crowd that had come to explain it to me. Mr. Jay has never mentioned the essays. I do not expect he will begin on this program.

He didn't.

No. He was in the country when I wrote them. He was in the country when I was stoned. Mr. Jay has spent a remarkable amount of his life in the country.

Let's talk about 1802.

By all means. It is a more comfortable year.

January 29th, 1802. You draft a resolution for the New York legislature asking Congress to amend the Constitution. Two amendments. The second one, that electors should designate which man they vote for as President and which as Vice President—

Became the Twelfth Amendment. Yes. In substance.

The first one didn't. Tell me what the first one was.

That Congress should divide each state into districts, as many as it had senators and representatives, of equal population as nearly as could be, made of contiguous counties, and that each district should choose one elector. No legislature choosing electors. No state casting its votes as a bloc. The elector of a district answerable to the people of that district and to no one else. It would have made the electors what Publius said they were and what, in 1788, I had been too sanguine to see they would not be without compulsion.

New York passed it. Both houses.

They did. DeWitt Clinton introduced it. It was not my party's legislature by then. I take some pride in that.

It went to Congress. The House passed the whole thing. The Senate took your second amendment and dropped the first.

They took the clerical repair and left the constitutional one. I know. I lived long enough to see the Twelfth ratified and not long enough to see the district plan revived, though I understand it was, several times.

Four times between 1813 and 1822 it passed the Senate. Never both houses at once. Two states use something like it today. Maine and Nebraska.

Nebraska.

We'll do the map.

Two of fifty. And the rest by bloc. Then let me ask you a question, since the instruments of indemnity permit it. If a state's districts were drawn as I proposed, of equal population and contiguous, what stops the party that draws them from drawing them to its own advantage?

Nothing. It's called gerrymandering.

It is called what?

Gerrymandering. After Elbridge Gerry.

Gerry. Elbridge Gerry of Massachusetts. Who refused to sign the Constitution. That Gerry.

1812. He was governor here. His party drew a state senate district that a newspaper said looked like a salamander. It's been called that ever since. It's a verb now.

He is a verb.

He's a verb.

Then I am obliged to him, because he has shown me the flaw in my own resolution, which I did not live to see. I wrote "contiguous." I did not write "compact." I assumed the one implied the other because in 1802 no man had yet thought to make a district in the shape of a reptile. It is a very great thing to have one's oversights named after other people. Madison never had that luck.

Would it have mattered? If the district plan had passed?

It would have mattered enormously, and I decline to say whether for good or ill, because I have been here an afternoon and you have been here your whole life and even you will not say. It would have meant that no state was a cipher. It would have meant that a man might lose a state and still carry six districts of it. It would also have meant, I now see, that the reptiles would have been drawn for the presidency as well as the Congress, and I do not know which evil is greater. I know only which one I proposed, and that nobody finished it.

Last question. I ask everyone one last question and I ask them to answer it in a sentence, which I'm aware is a hardship for you.

I have written sentences that would satisfy your condition and fill the page. Ask.

1788. "If the manner of it be not perfect, it is at least excellent." Is it?

The manner was excellent. What you have is not the manner; it is the shell of the manner with the reasoning removed, and you have kept the shell for two hundred years because it was written down and the reasoning was not, and I take it as a lesson, sir, that one should never again put the reasoning in a newspaper and the mechanism in the law. Put the reasoning in the law. It is the only place anyone is compelled to read it.

That was three sentences.

It was one sentence and a codicil. Colonel Hamilton thanks you for your hospitality and would like his horse.

About the horse.

What about the horse?

We'll talk after we stop recording.

That's The Hitching Post for this week. Our thanks to the Colonel, to Dr. Franklin, to the vestry of the Old North Church, and to whoever is responsible for the stairs. Next week we're back at street level. Letters to the usual address; if you want a reply from a guest, say so, and we'll ask.