Uriah Tracy’s Speech – Dec 2, 1803

Senate Debate on 12th Amendment

Note: The majority of this speech is taken from Volume Five of The Founders Constitution and where this is the case as a new page begins, the page number will be shown in brackets in this fashion: [p. 463] The parts of the speech that are taken from The Founders’ Constitution appear in black while parts not available from this source are included in a different color and marked [Annals of Congress].*

* The Specific Citation for Uriah Tracy’s speech is Annals of Congress, 8th Congress, Senate Debates, 1st session pages 159-180 memory.loc.gov/ammem/amlaw/lwaclink.html#anchor8. Pages quoted from this source are also noted in brackets at the start and end of those quoted pages on this website. —Gary Alder 2-14-2017

Page numbers for the Annals of Congress are now included throughout the entire document. —Gary Alder 2-17-2017

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[p. 463][p. 159] Mr. Tracy. . . . The merits have never, until now, been before us, for, although considerable time has been consumed in debate, it has chiefly been directed to the subordinate amendments, and not to the main resolution. But, since the Senate have refused to adjourn, I will now offer some observations on the merits; in doing which, I will study brevity, as much as the importance of the subject will permit. [p. 463]

[Annals of Congress p. 159] I shall attempt to prove, sir, that the resolution before us contains principles which have a manifest tendency to deprive the small States of an important right, secured to them by a solemn and Constitutional compact, and to vest an overwhelming power in the great States. And, further, I shall attempt to show that, in many other points the resolution is objectionable, and, for a variety of causes, ought not to be adopted.

As I shall be obliged, in delineating the main features of this resolution to mention, the great States in the Union as objects of jealousy, I wish it to be understood, that no special stigma is intended. “Man is man,” was the maxim expressed in an early part of this debate, by the gentleman from South Carolina, (Mr. Butler,) and in application to the subject of government, the maxim is worthy to be written in letters of gold. Yes, sir, “man is man,” and the melancholy truth that he is always imperfect and frequently wicked, induces us to fear his power, and guard against his rapacity, by the establishment and preservation of laws, and well regulated constitutions of Government. Man, when connected with very many of his fellow men, in a great State, derives power from the circumstance of this numerous combination; and from every circumstance which clothes him with additional power, he will generally derive some additional force to his passions.

Having premised this, I shall not deem it requisite to make any apology when I attempt to excite the attention, the vigilance, and even the jealousy of the small, in reference to the conduct of the great States. The caution is meant to apply [p. 160] against the imperfections and passions of man, generally, and not against any State, or description of men, particularly.

It may be proper in this place, to explain my meaning, when I make use of the words “small” and “great,” as applicable to States.

Massachusetts has been usually called a great State; but, in respect to all the operations of this resolution, she must, I think, be ranked among the small States. The district of Maine is increasing rapidly, and must, in the nature of things, soon become a State. To which event, its location, being divided from what was the ancient colony of Massachusetts, by the intervention of New Hampshire, will very much contribute. I believe there is a Legislative provision of some years’ standing, authorizing a division at the option of Maine. When this event shall occur, Massachusetts, although, in comparison with Connecticut and Rhode Island, will not be a small State; yet, in comparison with many others, must be so considered. I think myself justifiable, then, for my present purposes, in calling Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, Vermont, New Jersey, Delaware, Maryland, and South Carolina, small States. They are limited in point of territory, and cannot reasonably expect any great increase of population for many years, not indeed, until the other States shall become so populous as to discourage emigration, with agricultural views; which may retain the population of the small States as seamen or manufacturers. This event, if it ever arrives, must be distant. A possible exception only, may exist in favor of Maine; but, when we consider its climate, and a variety of other circumstances, it is believed to form no solid exception to this statement.

By the same rule of deciding, the residue of the States, must be called great; for although Georgia and several others are not sufficiently populous, at this time, to be considered relatively great States, yet their prospect of increase, with other circumstances, fairly bring them within the description, in respect to the operation of the measure now under consideration.

It will be recollected, that, in the various turns which this debate has taken, gentlemen have repeatedly said that the Constitution was formed for the people; that the good of the whole was its object; that nothing was discernible in it like a contest of States, nothing like jealousy of small States against the great; and although such distinctions and jealousies might have existed under the first Confederation; yet they could have no existence under the last. And one gentleman, (Mr. Smith, of Maryland,) has said that he has been a member of this government ten years, and has heard nothing of great and small States, as in the least affecting the operations of government, or the feelings of those who administered it.[Annals of Congress p. 160]

— The Constitution Structured a Modified Federation —

[p. 463][p. 160] Propriety, therefore, requires that we attentively examine the Constitution itself, not only to obtain correct ideas upon these observations, so repeatedly urged, but to place in the proper light the operations and effects of the resolution in debate. [p. 161] If we attend to the Constitution, we shall immediately find evident marks of concession and compromise, and that the parties to these concessions were the great and small States. And the members of the Convention who formed the instrument have, in private information and public communications, united in the declaration, that the Constitution was the result of concession and compromise between the great and small States. In this examination of the Constitution it will be impossible to keep out of view our political relations under the first Confederation. We primarily united upon the footing of complete State equality—each State had one, and no State had more than one vote in the Federal Council or Congress. With such a Confederation we successfully waged war, and became an independent nation. When we were relieved from the pressure of war, that Confederation, both in structure and power, was found inadequate to the purposes for which it was established. Under these circumstances, the States, by their Convention, entered into a new agreement, upon principles better adapted to promote their mutual security and happiness. But this last agreement, or Constitution, under which we are now united, was manifestly carved out of the first Confederation. The small States adhered tenaciously to the principles of State equality; and gave up only a part of that federative principle, complete State equality, and that, with evident caution and reluctance. To this federative principle they were attached by habit; and their attachment was sanctioned and corroborated by the example of most if not all the ancient and the modern Confederacies. And when the great States claimed a weight in the Councils of the nation proportionate to their numbers and wealth, the novelty of the claim, as well as its obvious tendency to reduce the sovereignty of the small States, must have produced serious obstacles to its admission. Hence it is, that we find in the Constitution but one entire departure from the Federal principle. The House of Representatives is established upon the popular principle, and given to numbers and wealth, or to the great States, which, in this view of the subject. are synonymous. It was thought, by the Convention, that a consolidation of the states into one simple Republic, would be improper. And the local feelings and jealousies of all, but more especially of the small States, rendered a consolidation impracticable.

The Senate, who have the power of a legislative check upon the House of Representatives, and many other extensive and important powers, is preserved as an entire federative feature of Government as it was enjoyed by the small States, under the first Confederacy.

— States Jealous to Retain Equal Representation in the Senate —

In the article which obliges the Electors of President to vote for one person not an inhabitant of the same State with themselves, is discovered State jealousy. In the majorities required for many purposes by the Constitution, although there were other motives for the regulations, yet the jealousy of the small States is clearly discernible. Indeed, sir, if we peruse the Constitution [p. 162] with attention, we shall find the small States are perpetually guarding the federative principle that is, State equality. And this, in every part of it, except in the choice of the House of Representatives, and in their ordinary legislative proceedings. They go so far as to prohibit any amendment which may affect the equality of States in the Senate.

— Senators and Legislators of Small States Criminally Remiss to Allow this Alteration —

This is guarding against almost an impossibility, because the Senators of small States must be criminally remiss in their attendance, and the Legislatures extremely off their guard, if they permit such alterations, which aim at their own existence. But, lest some accident, some unaccountable blindness or perfidy should put in jeopardy the federative principle in the Senate, they totally and forever prohibit all attempts at such a measure. In the choice of President, the mutual caution and concession of the great and small States is, if possible, more conspicuous than in any other part of the Constitution.

–Selecting a President is Mixed Mode – Popular and Federative–

He is to be chosen by Electors appointed as the State Legislatures shall direct, not according to numbers entirely, but adding two Electors in each State as representatives of State sovereignty. Thus Delaware obtains three votes for President, whereas she could have but one in right of numbers. Yet, mixed as this mode of choice both popular and federative principles, we see the small States watching its motions and circumscribing it to one attempt only, and, on failure of an Electoral choice, they instantly seize upon the right of a Federal election, and select from the candidates a President by States and not by numbers. In confirmation of my assertion, that this part of the Constitution was peculiarly the effect of compromise between the great and small States, permit me to quote an authority which will certainly have great weight, not only in the Senate, but through the Union, I mean that of the present Secretary of State (Mr. Madison,) who was [p. 464] a leading member of the Federal Convention who formed, and of the Virginia Convention who adopted the Constitution.

In the Debates of the Virginia Convention, volume 3, page 77, Mr. Madison says, speaking of the mode of electing the President:

As to the eventual voting by States it has my approbation. The lesser States and some larger States will be generally pleased by that mode. The Deputies from the small States argued, and there is some force in their reasoning, that, when the people voted, the large Slates evidently had the advantage over the rest, and, without varying the mode, the interests of the little States might be neglected or sacrificed. Here is a compromise. For in the eventual election, the small States will have the advantage.

After this view of the Constitution, let us inquire, what is the direct object of the proposed alteration in the choice of President?

To render more practicable and certain the choice by Electors—and for this reason; that the people at large, or in other words, that the great States, ought to have more weight and influence in the choice. That it should be brought nearer to the popular and carried further from the federative principle. [p. 163] This claim we find was made at the formation of the Constitution. The great States naturally wished for a popular choice of First Magistrate. This mode was sanctioned by the example of many of the States in the choice of Governor. The small States claimed a choice on the federative principle, by the Legislatures, and to vote by States; analogies and examples were not wanting to sanction this mode of election. A consideration of the weight and influence of a President of this Union, must have multiplied the difficulties of agreeing upon the mode of choice. But, as I have before said, by mutual concession, they agreed upon the present mode, combining both principles and dividing between the two parties,[Large State/Small State – not political parties] thus mutually jealous, as they could, this important privilege of electing a Chief Magistrate.

This mode then became established, and the right of the small States to elect upon the federative principle, or by States, in case of contingency of electoral failure of choice, cannot with reason and fairness be taken from them, without their consent, and on a full understanding of its operation; since it was meant to be secured to them by the Constitution, and was one of the terms upon which they became members of the present Confederacy; and for which privilege they gave an equivalent to the great States, in sacrificing so much of the federative principle, or State equality.

— The Constitution Balances Federative and Popular Principles —

The Constitution is nicely balanced, with the federative and popular principles; the Senate are the guardians of the former, and the House of Representatives of the latter; and any attempts to destroy this balance, under whatever specious names or pretences they may be presented, should be watched with a jealous eye. Perhaps a fair definition of the Constitutional powers of amending is, that you may upon experiment so modify the Constitution in its practice and operation, as to give it, upon its own principles, a more complete effect. But this [the 12th Amendment] is an attack upon a fundamental principle established after a long deliberation, and by mutual concession, a principle of essential importance to the instrument itself, and an attempt to wrest from the small States a vested right, and, by it, to increase the power and influence of the large States. I shall not pretend, sir, that the parties to this Constitutional compact cannot alter its original essential principles, and that such alterations may not be effected under the name of amendment; but, let a proposal of that kind come forward in its own proper and undisguised shape; let it be fairly stated to Congress, to the State Legislatures, to the people at large, that the intention is to change an important federative feature in the Constitution, which change in itself and all its consequences, will tend to a consolidation of this Union into a simple Republic; let it be fairly stated, that the small States have too much agency in the important article of electing a Chief Magistrate, and that the great States claim the choice; and we shall then have a fair decision. If the Senators of the small States, and if their State Legislatures, will then quietly part with the right they have, no person can reasonably complain.

— Electors are to Nominate Two Individuals —

[p. 164] Nothing can be more obvious, than the intention of the plan adopted by our Constitution for choosing a President. The Electors are to nominate two persons,
of whom they cannot know which will be President;
this circumstance not only induces them to select both from the best men; but gives a direct advantage into the hands of the small States even in the electoral choice. For they can always select from the two candidates set up by the Electors of large States, by throwing their votes upon their favorite, and of course giving him a majority; or, if the Electors of the large States should, to prevent this effect, scatter their votes for one candidate, then the Electors of the small States would have it in their power to elect a Vice President. So that, in any event, the small States, will have a considerable agency in the election. But if the discriminating or designating principle is carried, as contained in this resolution, the whole or nearly the whole right and agency of the small States, in the electoral choice of Chief Magistrate, is destroyed, and their chance of obtaining a federative choice by States if not destroyed, is very much diminished.

For this identical purpose is the principle of electoral discrimination and designation introduced into the resolution before you; for the same purpose is the number of candidates reduced from five to three, from whom the House of Representatives may elect, in case of electoral failure of choice; that is, to destroy or diminish the agency of the small States, in the choice of President.

For what purpose else are we perpetually told and from all parts of the Senate, that the public will is opposed by the present mode, and public will cannot be gratified, without the introduction of the discriminating principle?

By the public will thus mentioned, the gentlemen mean the will of a popular majority, or, the will of the great States, which in this case, I repeat it, are the same. How is [p. 465] it possible for the gentlemen to increase the chances of gratifying this description of the public will; without decreasing the agency of the small States?

— The Public Will is Expressed either by a Majority of Electors or a Majority of States —

The whole power of election is now vested in the two parties;[not political parties] numbers and States, or, great and small States; and it is demonstration itself if you increase the power of the one, in just such proportion you diminish that of the other. Do the gentlemen suppose that the public will, when Constitutionally expressed by a majority of States, in pursuance of the federative principle of our Government, is of less validity, or less binding upon the community at large, than the public will expressed by a popular majority? The framers of your Constitution, the people who adopted it, meant, that the public will, in the choice of President, should be expressed by Electors, if they could agree, and if not, the public will should be expressed by a majority of the States, acting in their federative capacity, and that in both cases the expression of the public will should be equally binding.

— Other Ways that the Public Will is Expressed —

It is pretended that the public will can never, properly or Constitutionally, be expressed but by a majority of numbers of the people, or of the [p. 165] House of Representatives. This may be a pleasing doctrine enough to great States; but it is certainly incorrect. Our Constitution has given the expression of the public will, in a variety of instances, other than that of the choice of President, into very different hands from either the House of Representatives or the people at large. The President and Senate, and in many cases the President alone, can express the public will, in appointments of high trust and responsibility, and it cannot be forgotten that the President sometimes expresses the public will, by removals. Treaties, highly important expressions of the public will are made by the President and Senate; and they are the supreme law of the land. In the several States, many great offices are filled, and even the Chief Magistracy, by various modes of election. The public will is sometimes expressed by pluralities, instead of majorities, sometimes by both branches of the Legislatures, and sometimes by one, and in certain contingencies, elections are settled by lot. The people have adopted constitutions containing such regulations, and experience has proved that they are well calculated to preserve their liberties and promote their happiness. From what good or even pardonable motive, then, can it be urged that the present mode of electing our President has a tendency to counteract the public will? Do gentlemen intend to destroy every federal feature in this Constitution? And is this resolution a precursor to a complete consolidation of the Union, and to the establishment of a simple Republic? — Or will it suffice to break down every federative feature which secures to one portion of the Union, to the small States, their rights?

— This Amendment is the Beginning of Evils —

[Annals of Congress p. 165] I am not without my fears, Mr. President, that this is but the beginning of evils, and that this Constitution, the bulwark of the feeble members of the Confederacy; the protection of the weak against the strong; the security of the small against the great; the last, best hope of man, with a view to stability in a free Government, and to the preservation of liberty in a Republic; is destined to undergo changes, and suffer innovations, till there be no residue worth preserving, and nothing left, which ambition will condescend to overturn.

— The Small States’ Participation in the Election will Receive a Deadly Blow —

Time will not permit me to dwell any longer on this part of my argument. But I am deceived, sir, if the view I have now taken of the Constitution does not shew most obviously, that in its formation there was a struggle between the great and small States, with respect to many of its principles and leading features; and that the participation in the election of a Chief Magistrate, clearly secured to them by the Constitution, will receive a deadly blow by the adoption of the proposed amendment.

It can be no contradiction to my ideas upon the subject, if we have heard nothing of State conflicts, in the administration of this Government. The great States have never, till now, directly attempted to violate the sanctuary of the small, and despoil them of their rights; had this been earlier attempted, we should have heard and seen the same jealousy awakened, and the same opposition exerted.

[p. 166] The conflict could happen in no other way; than by an attack from the large States. We had neither the desire nor ability to injure them, and we now ask no favors, but their permission to enjoy, in peace and safety, the rights conceded to us by themselves, and secured by a solemn Constitutional compact.

We have been told by a gentleman from Virginia, that it would be impolitic in us to rouse the great States. I shall, at present, take no further notice of this warning, given to us, no doubt, in the full exercise of benevolence, but to request the small States to preserve it in constant recollection. It may induce them not hastily to part with Constitutional security.

There are some other points of light, in which I wish to place the subject before us. [Annals of Congress p. 166]

— The Constitution Should not be Modified Without Determining the Absolute Necessity —

[p. 465] The Constitution is of recent date; it was formed by the mutual concessions of conflicting parties, and balanced with a view to the securing of all. Experience, alone can test its utility, and time and practice discover its faults. It is a sound position that you should never attempt an alteration in an instrument so complicated, and calculated to serve so many various and opposite interests, without being able, by the test of experiment, to discern clearly the necessity of alteration, and without a moral certainty that the change shall not only remove an existing evil, but that it shall not produce any itself. The article in the Constitution establishing the mode of electing a Chief Magistrate, and which is now proposed to be altered, was undoubtedly one of the most difficult parts of the whole at its formation. I am convinced, sir, that the public mind is not sufficiently impressed with the difficulty of adopting, not only an unexceptionable but even a tolerable and practicable mode of electing a Chief Magistrate, possessing such important and extensive powers as are Constitutionally vested in the President of the United States. An attempt to detail the number and magnitude of his powers, to this Senate, would be impertinent. But it must and will be acknowledged by all, that the President is vested with powers vastly extensive and important, and that he will bring with him into the Government more or less of State politics and State prejudices, and these facts, to which may be added the probability that he will be taken from a large State, must have increased the difficulties of the Convention in fixing on a mode of choice.

How often have contests, wars, and bloodshed, the destruction of confederacies, of liberty and of vast portions of the human race, arisen from the election of Chief Magistrates? When we consider that the powers vested in the President of this Union are sufficiently important to excite the avarice and ambition of the human heart, its two most active principles, to gain possession of the office; when we consider the difference of sentiment, habit, and interest, in this country; State pride and State jealousy, which could never be laid asleep; the difficulties of fixing upon a proper mode of election must be also infinitely multiplied. And yet this article is now selected for alteration. All the amendments which have been hitherto [p. 167] adopted, went to some general explanation upon very general principles, not changing but rather expounding the Constitution.

— Proponents of the Amendment are in a Big Rush —

This, as I have before said, is taking up the most difficult and most important article in the Constitution, both in relation to rights and principles. But it is said that experience has shewn us the necessity of an alteration in this article; that an evil has been found in practice to grow out of the Constitutional provision, which calls imperiously for remedy.

At the last election of President two persons had an equal number of votes, and that number was a majority of the votes of all the Electors appointed, which circumstance gave the House of Representatives a Constitutional right to select one of them for President. In exercising this Constitutional right, they voted by States, and there was at first a division, no choice being made until the sixth day; when an election was effected, of the very man whom the great States, and the advocates of this resolution, wished.

It ought to be noted here, that although they voted by States, yet it happened, in this division, that a majority, in point of numbers, voted for the person as President, who eventually became Vice President. As to intrigue, by either of the candidates, or by their friends, I know of none; the [p. 466] sentiments and conduct of the Vice President, as published, were perfectly fair and honorable, containing a declaration of his wishes not to stand in the way of the other candidate.

— What Great Evil Occurred in the Election of 1800? —

After the view of the Constitution which we have taken, and comparing this fact, or set of facts, with the provisions for electing a President, we shall really be at a loss to find out the mighty evil, which the experience of this election has discovered, and which is said to call so imperiously for a remedy. But the advocates of this resolution have had the goodness to put their finger on the spot. They say, that in the certificates of the Electors, Mr. Jefferson’s name stood first; this is called a sort of record testimony, and in addition, some, if not all the Electors said they meant to elect Mr. Jefferson President, and Mr. Burr Vice President; and this is declared to be the public will, expressed by the Constitutional organ, the Electors. Notwithstanding this expression of the public will, say the gentlemen, a large portion of the House of Representatives withstood and opposed the public will, for the space of six days, and willfully voted for the man to be President, who, they knew by the evidence just mentioned, was meant to be Vice President. One gentleman (Mr. Wright) has said, that if he had been a member of that House, possessing such sentiments upon the subject as he now does, such voting would in him have amounted to the crime of perjury, or words to the same effect. I mean to quote his ideas, as expressed, and believe I have given nearly his very words. And, it is added, that thus there was imminent danger of a person being imposed upon the United States as Chief Magistrate, who was not originally intended for that high office, and that civil war must have been the consequence; and, as is common in such [p. 168] cases, the picture is filled—in the back ground, with brother raising his murderous hand against brother, father against son, and with an afflicting group of et ceteras; and to avoid a repetition of this tremendous crisis, as it is called, the present resolution, it is said, must pass.

Let this statement of facts be kept in view while we examine the duties assigned by the Constitution to the several agents concerned. The duty of the Electors is precisely defined. They are each to bring forward two candidates fully qualified for President, because they cannot know at the time of giving their ballots upon which the choice will fall. The circumstance of two having a majority, and both being equal in number of votes, is an expression of the public will, through the only Constitutional organ, by which, in this case, the public will can be expressed, that both had the requisite qualifications. The public will, then, was in this instance clearly and unequivocally expressed, by a Constitutional and numerous majority, that both candidates were worthy of the office; but here the expression of the public will ceased, and which of these two should be President, was now to be decided by another Constitutional organ, that is, by the House of Representatives, voting by States.

— The First Electors Had no right to Choose a Vice President —

The framers of the Constitution so intended, and the people who adopted it have so ordained, that their will in this case should be expressed by a majority of the States, acting by their representation in the House of Representatives. The right of selection is a right complete in itself, to be exercised by these second Electors, uninfluenced by any extraneous consideration, and governed only by their own sense of propriety and rectitude. The opinion of the people had been expressed by the Electors, but it only reached a certain point, and then was totally silent as to which of the two should be President, and their sense upon this point could only be collected through their Constitutional organ, the House of Representatives, voting by States. Any interference of the first Electors, or of an individual or individuals, must be informal and improper. The advice of sensible and candid men, as in every other case, might be useful; but could have no binding force whatever. The first Electors had no right to choose a Vice President. To claim it was overstepping their duty, and arrogating to themselves a power not given to them by the Constitution.

If there is any thing in this whole transaction which has the most distant appearance of a breach of duty, it was in the Electors, by attempting to designate, and by exercising the important office of an Elector, under the influence of improper motives; that is, by officiously attempting to decide the question, which of the two persons was proper for Vice President, which they were constitutionally incompetent to decide. By this conduct they attempted to break down an important guard provided by the Constitution, and improperly to release themselves from its obligations, which made it their duty to select two men qualified to be President. But if there can be a shadow [p. 169] of reason in this claim of the Electors to designate under the present Constitutional regulations, of which, to doubt, seems to be so heinous, what necessity can there be for this amendment? The object of the amendment, or certainly its chief object, is to establish the designating principle; but why this, if it can already be effected by the simple mode of placing one name first on the ballot, which is so easy to be done, that it can scarcely be avoided? And if done, by the doctrine of gentlemen, it is so far binding on the House of Representatives that if they even doubt, they are damned?

The fact certainly was, that at the last election, the great States brought forward the two candidates. They were both of the same political sentiments. This they had a Constitutional right to do. But it now seems that their language to the small States was: “because you will not give up your Constitutional rights to us, and let us go on and designate, we will stir up a civil war, and lay the blame to you; and of this improper conduct of ours we will take the advantage, and obtain an alteration of the Constitution, which will hereafter gratify us in every respect.” A gentleman from Maryland (Mr. Smith) had said, that he heard, though he could not prove it, that the Federal majority at the time of the last election, contemplated making a law authorizing or appointing some person as President, in case no choice had been made by the House of Representatives. I was then, sir, a member of the Government, and knew nothing of such a project; it might have been so; but supposing it was, what then? Why, says the gentleman, the person thus appointed could not have kept his head on his shoulders 24 hours; and this would have made a civil war. If the majority now should contemplate a measure [p. 467] which the Constitution does not authorize—as it clearly did not authorize the measure suspected by the gentleman, though he cannot prove it—the best thing in the world for them to do would be to give up, without any attempt to effect it, as it seems the Federal majority did. But what argument all this can afford in favor of the amendment, or why it was mentioned in this debate, is beyond my comprehension. In the result of the last election, the great States and the ruling political party, were certainly gratified, and there does not appear the least reasonable ground of complaint against the small States, in the use of their Constitutional rights on the occasion. All support, therefore, to the amendment, drawn from that transaction, must fail.

I have said that the article fixing the mode of electing a Chief Magistrate was, from its nature, attended with many difficulties. A more strict inquiry into the Constitutional mode, and a comparison of it in some other and more particular points with the proposed alteration, will be useful in forming an opinion of their relative merits.

— Writing Two Names on the Ballot is the Best Protection from Intrigue —

As the Constitution stands each Elector is to write the names of two persons on a piece of paper called a ballot. Either of the two persons thus voted for may be President, and the Elector cannot know which. This affords the most powerful [p. 170] inducement to vote for two, both of whom are qualified for the very important office. For it is not only uncertain upon whom the choice will fall at first, but the one remaining will certainly be President, upon any contingency which shall remove or incapacitate the first. The Convention seem to have selected a mode of proceeding the most simple, the least liable to accident, and the best calculated to insure the main object, that is, that both should be really worthy of the trust. If one candidate wishes to make interest with the Electors, as each must vote for two, it will be impossible for bribery or intrigue to succeed; for, without corrupting the whole, or certainly many more than half, he may be defeated by the other candidate on the ballot. This is, perhaps, the most effectual bar to intrigue, that was ever contrived; for, unless all, or a great proportion of the Electors are corrupted, an extreme case of depravity not probable in any country, intrigue can have no assurance of success. The danger and difficulty, which must always attend such an important election as that of Chief Magistrate of the United States, was meant to be avoided by diminishing the chances of its frequent recurrence. So two persons are placed in condition to act as President in succession, to prevent both the evils of vacancy and a recurrence of choice more frequently than once in four years; and it seems merely incidental to this second person to be called Vice President, and neither the first nor second description of Electors can have any right to vote for him as such. Indeed, he can have no existence till the first character is designated, and then seems to be discovered, not elected. The Senate, in case of an equal number of votes for two or more remaining persons, after the President is elected, are vested with authority to choose a Vice President, for as such he is to preside over this body, and this body therefore seems to be the only Constitutional organ to designate him. Both the other descriptions of Electors have nothing to do with such a character or office, but are confined to act with a single reference to the character and office of President, and are trusted with no power to give any opinion of the character or qualifications of a Vice President; and it is remarkable that there are no appropriate qualifications made necessary by the Constitution, for a Vice President; but every qualification has reference to President. There is another important feature in this part of the Constitution. It was known by the Convention that in this country, in common with all others where there is freedom of opinion, and of speech, there would be parties. They likewise knew, that the intolerance of the major or ruling sect and political party, was frequently exercised upon the minor party, and that the rights of the minority ought to be protected to them.

— The Spirit of the Constitution is Political Moderation —

As well then to secure the rights of the minority, as to check the intolerance of the majority, they placed the majority in jeopardy, if they should attempt at grasping all the benefits of a President and Vice President within themselves, to the total exclusion of the minority. This very case which [p. 171] happened at the last election was contemplated, in which the majority attempted totally to exclude the minority from any participation. The language of the Constitution to such majorities is, “take care that you aim not at too much, for if you do, it is put into the power of the minority to check you, and, by a judicious disposition of their few votes, determine the choice of President.” To avoid this event the majority will probably be cautious in the exercise of power; and thus the rights, the proper weight and influence of a minority, are secured against the conduct of the majority, which is certainly liable to be intolerant and oppressive. In this respect the spirit of the Constitution is, political moderation. And it is clear to my mind, that the experience of the last election has taught a lesson to all majorities, which will in future completely secure them from again incurring a similar risk. I recollect well that it was thought probable, when the electoral votes were given, that Mr. Burr would have a vote or two in some of the Eastern States. If he had received but one, he would have been by an electoral choice the Constitutional President. If the majority in future have powers of recollection, they will undoubtedly avoid the evil, if it is one, which happened at the last election, with such unfailing certainty, that there will be no need of the remedy proposed by the amendment. But the majority say, if their votes are so scattered for one candidate as to avoid this danger, that another will be incurred; and that is, the minority will elect a Vice President. The language of the Constitution to them, is again, “that this was meant as a security for the minority against the majority.” But the majority exclaim against both these provisions as very unreasonable indeed. “What!” say they, “are minorities to govern majorities?” The answer of the Constitution is, “no, but their due weight and influence shall be secured to them, and the danger of your intolerance guarded against.” For the security of small States and minorities, there is, in the Constitution a mixture of the federative with the popular principles. And as it is well known that, when popular majorities alone prevail, and exercise power uncontrolled by Constitutional checks, the minorities, who [p. 468] generally possess their proportion of integrity and virtue, are overwhelmed, and liberty itself, by the same means, destroyed; so it is in kindness to both parties, to the country and to humanity, that these wholesome checks are Constitutionally provided. Had the majority or the great States been willing fairly to have submitted to the Constitutional checks in the last election, no evil could have happened. And it is remarkable that the Constitution completely protects them, as long as they obey its precepts, in the creation of which they had an agency, and to which they have solemnly agreed. To prove that I am correct in these ideas, I not only refer to the Constitution but to the Secretary of State (Mr. Madison.) In the Virginia debates, volume 1, page 96, he says:

But on a candid examination of history, we shall find that turbulence, violence, and abuse of power, by [p. 172] the majority trampling on the rights of the minority, have produced factions and commotions which, in Republics, have more frequently than any other cause produced despotism. If we go over the whole history of ancient and modern Republics, we shall find their destructions to have generally resulted from those causes. If we consider the peculiar situation of the United States, and what are the resources of that diversity of sentiments which pervades its inhabitants, we shall find great danger that the same causes may terminate here in the same fatal effects which they produced in those Republics. This danger ought to be wisely guarded against. Perhaps, in the progress of this discussion it will appear that the only possible remedy for those evils, and means of preserving and protecting the principles of republicanism, will be found in that very system which is now exclaimed against as the parent of oppression.

Mr. President, it has often been said by the discerning and judicious of this and other countries, that our Constitution, for its brevity, its comprehensiveness, its perspicuity, and the political skill contained in it, was the best State paper extant. I believe all this and even more is a tribute justly due to its merits; and I am persuaded that the article which fixes a mode for the choice of a Chief Magistrate stands most prominent among its excellencies.

Let us now, sir, examine and compare the merits of the amendment with a special reference to this last view we have taken of the Constitutional provision.

— The Amendment Invites Intrigue and Corruption —

The amendment authorizes the Electors to vote for a President, and Vice President by a specific designation. Is ambition in your country? Here is a direct and inviting object for its operation.—Is the integrity of your Electors assailable? You place it here in the most encouraging attitude for an assault. A fear of detection, and a sense of shame, upon the exposure of an improper action, has been, perhaps, a better security against political errors or crimes, than all the moral virtues united, when the temptation has been attended with an impossibility of detection. An intrigue with an Elector can be carried on without much danger of detection; but when your election is carried into the House of Representatives, besides the ordinary weight of character in favor of the members of that House a detection of an intrigue with a candidate is almost certain. It will be recollected that at the last election, two or three members held the choice perfectly in their own hands. If I mistake not, three gentlemen, that is, a member from New Jersey, a member from Vermont, and one from either Maryland, Delaware, or Tennessee, could have given a President to the United States. The particular gentlemen mentioned were above suspicion of bribery; but, in addition to this circumstance, if they had in the contest gone over from improper motives, or under the influence of bribery, a detection was certain.

This will remain forever the criterion, as it respects the relative danger of intrigue and bribery, in the two modes of choice. And the amendment is avowedly intended to secure a choice by Electors, and to prevent a resort to the House; because [p. 173] says the gentleman from Virginia, (Mr. Taylor.) “If you permit the election to go into the House, there are small States, and minorities, and all the evils of a diet election;” meaning that corruption must be the consequence. But he says, “let there be a divided election by the Electors, meeting by States separately, and you lessen the tendency to corruption.” This may look plausible in theory, but I think practice will show its fallacy.

It may be better for the Electors to meet by States than for all to be together, but this can never prove that they are less liable to corruption than the House of Representatives; which is the only point in question.

— The Amendment Invites a Less Qualified Person for Vice-President —

The manner of electing the Vice President, as proposed by the amendment, not only invites ambition to an unchecked operation, but exposes us to the selection of a less important and more unfit person, than the Constitutional provision. In addition to his importance in the Government, arising from his incidental succession to the Chief Magistracy, the Vice President is ex officio President of the Senate, and gives a direct influence to the State from which he is chosen, of a third vote in this body, in all cases of equal division, which are usually the cases of most importance. Besides, his influence as presiding officer is, perhaps, more than equal to the right of a vote. It becomes therefore peculiarly important to the small States, and to minorities, whose security rests in this body, not only that their influence in the election of Vice President should not be diminished, but that no measure be adopted which may tend to bestow the office upon an unworthy character. By the proposed amendment, this character must necessarily become a sort of make-weight and stepping-stone for the Presidency. As in recruiting for an army, a man, active, and of a particular cast of character, but not very proper for a Commander-in-Chief, is employed to obtain recruits, and, upon condition that he obtains a given number, is to be rewarded with a sergeant’s warrant; so in this case, the man who can procure a given number of votes for President will be encouraged to hope for the Vice Presidency; and where will such characters be sought after? In Delaware or Rhode Island? No, sir, but in the great States; there the recruiting talents will be put in operation, because the number of recruits, or votes, will be sufficient to [p. 469] test his active and recruiting merits. And thus the office of Vice President will be sent to market with hardly a possible chance to meet an honest purchaser.

— Preventing a Choice by Electors Allows Vice-President to Run the Country —

I have already remarked upon the alteration made by the Senate, in the resolution passed by the House of Representatives, changing the number five to three. But, one addition, made this morning, deserves attention. I mean that which authorizes the Vice President to administer the Government, in case neither the first nor the second Constitutional Electors effect a choice of President. This is a new principle, and its operation is more uncertain than that of any other; art of the proposed amendment. Viewing it in one point of light, it may be thought to confer a new power [p. 174] upon the Senate, that of giving a President to the Union. And it is said, that this part will recompense the small States, who have the ascendency in the Senate, for the injury inflicted by the other parts of the amendment. If it be true that the last part restores all which the former parts have taken away from us, it is inconceivable why any man can wish to pass a resolution the parts of which thus mutually destroy each other. It is possible that, by the force of intrigue and faction, the Electors may be induced to scatter their votes for both President and Vice President, in such manner as to present several candidates to the House for President and two or more to the Senate for Vice President; in which case the senate might immediately choose or select a Vice President. In this state of things, there is an opportunity afforded for an intrigue of a very extensive and alarming nature. The Senate, I mean a majority of them, might wish that the man whom they had elected Vice President should administer the Government, and if the House could be prevented from agreeing, their wishes would be gratified. The facility of preventing over that of producing a choice is very obvious.

A bold address[suggestion] may be made to any member of the House, without wounding his pride or offending his morality, to adhere to his candidate, and not change his vote so as to effect a choice. He can be told that there is no danger of leaving the United States without a President, as there is one already chosen to his hand by the Senate; and this person may be more the object of his wishes than any of the other candidates, his favorite excepted. In this process the Senate may give a President to the United States. But if the probability of such a process and such an event is increased by the amendment of this morning, it cannot certainly greatly recommend it. For myself I wish for no alteration in the Constitution, not even if its operations were directly in favor of the small States, more especially if such a favor is to be derived through a sort of double conspiracy of intrigue; in the first place to operate on the Electors, and then on the House of Representatives. It seems to me, that the small States had better be contented to enjoy the rights now secured to them by the Constitution, which they can honestly do, rather than submit to a deprivation of their rights, for the sake of dishonestly obtaining a restoration of them. We may charitably and safely conclude that the majority do not intend, by this part of the amendment, to expose the country to such a scene of iniquity. And the uncertainty of its operations, alone, is, in my mind, a sufficient ground for rejection. However the operation of this part of the amendment may appear in theory, as to other points, it seems to me that, in one point, all must agree: and that is, when the House of Representatives know that the United States will be left without an Executive Magistrate, in case they do not agree; this awful responsibility, will speak in a voice too loud for the hardihood of party entirely to disregard. And may not I suggest, without giving offence, that the operation of this very responsibility, has [p. 175] been proved, at least in some degree, in the proceedings of the last Presidential election?

If this last mentioned security be worth preserving, it follows, of course, that the part of the amendment alluded to ought not to pass.

— The Amendment Process Requires Concurrence as a Caution Against Error —

There is another view of the Constitution which has a reference to the general subject before us; and that is, the caution exhibited with respect to the introduction of amendments. In an instrument so important, and containing many features new, if not to the world, at least to ourselves, although we might approve of its principles, yet experience might discover errors as to the mode devised for carrying those principles into effect. Hence it was the part of wisdom and caution to provide for such alterations in practice as would give the fairest operation to principles, without incurring the confusion and agitation incidental to a general Convention. But lest the daring and restive spirit of innovation should injure or destroy, under the specious name of amendment, that same wisdom and caution hath provided salutary checks.

“Two-thirds of both Houses of the Congress shall deem it necessary” to propose amendments; and three-fourths of the State Legislatures shall ratify such amendments, before they acquire validity. I speak now, sir, of the mode which has always been, and probably will be, put in practice to obtain amendments. The other Constitutional mode is equally guarded as to numbers, but, as it has no relation to the subject now in debate, may be laid aside. “Two-thirds of both Houses,” must, I think on every fair principle of construction, mean two-thirds of all the members. The number of Senators is thirty-four, two-thirds being twenty-three. And as there is no representation from New Jersey, the number of Representatives is one hundred thirty-six, two-thirds being ninety-one.

My impressions are, sir, that this amendment cannot constitutionally be proposed to the State Legislatures unless it is agreed to in the two Houses by those numbers twenty-three and ninety-one, respectively. This is a Constitutional point, which, I am told, has never been agitated, but is certainly worthy of attention. If the construction should prevail that two-thirds of the members present, at any time, might propose amendments, the consequence is, that twelve Senators, being two-thirds of a quorum, and forty-eight Representatives, being a similar two-thirds, might propose any and the most important amendments. I am aware sir, that it may be said such propositions are not final, they may yet be ratified or rejected by the State Legislatures. But the spirit of the Constitution seems to require two-thirds of the nation, acting by its proper organs, to propose amendments; and that, in so interesting [p. 470] a subject as a Constitutional alteration a less number should have no authority. [end of account in The Founders’ Constitution]

— House Must Mean All the Members —

[Annals of Congress p. 175] The letter of the Constitution will certainly justify this idea of its spirit. When two-thirds of the Senate are requisite to consent and advise to a treaty, the words are “two-thirds of the Senators present.” To convict on impeachment “two-thirds [p. 176] of the members present.” Yeas and nays are to be entered on the Journal “at the desire of one-fifth of those present.” In the two first cases it is requisite to act immediately, whether two-thirds of the whole are present or not; then we see, the expressions are clear, “two-thirds” refers to the numbers present. Why so? Because, without these expressions, the reference would have been understood to the whole number of members. In the last case, why add the word “present” to the one-fifth? Because, without that word, “one-fifth” of the whole would have been its meaning. In all other cases, when two-thirds are required, the spirit of the Constitution certainly is, and the words seem to carry the meaning, “two-thirds” of the whole numbers. It is said, “that a majority of each House shall constitute a quorum to do business.” “House,” in this case, must mean all the members. Two-thirds of both Houses must, on the same principles, mean two-thirds of all the members of both. There is, I acknowledge, some obscurity, in the Constitutional use of the word “House,” when either of the two branches of Congress is described by it; but if the intention and sense as well as words, are attended to, I am forcibly led to believe that two thirds of all the members of both Houses, are required to sanction propositions for amendments, and that this construction is most consistent with the wisdom and political skill of the Convention. The construction for which I contend is analogous to the caution manifest in other parts of the Constitution. It was well known to the Convention, that amendments, if recommended or proposed by Congress, would have an imposing influence with the State Legislatures; and that, in no possible instance, could more evil arise from indigested measures, than in the case of amendments, owing to the impossibility of clearly foreseeing their operation and effects on the general Constitutional system. It was made requisite, therefore, to wait for the uninfluenced movement of two thirds of the popular and Federative Representatives of the nation. Whatever may be our opinion on the point now discussed, the State Legislatures have a Constitutional right to judge of it for themselves, and to determine whether a proposition for an amendment is presented to them, with the sanction required, and, if, in their opinions, the requisite numbers have not agreed to the proposition, they will guard the Constitution, by refusing to ratify such amendment. My honorable friend from New Hampshire (Mr. Plumer) has done such ample justice to this part of the subject, as to place it out of the reach of my assistance and beyond the need of any.

— The Influence of Instructions —

I am convinced, Mr. President, that the amendment now under consideration could not, in the Senate, obtain a Constitutional majority, of two-thirds, or even a simple majority, were it not for the influence of instructions. Some gentlemen have ingeniously said, that, until they gave this amendment the present particular examination, they had not contemplated the extent of its probable effects, and, although they entertained doubts, yet they were induced, by the instructions given them, [p. 177] to make the proposition to the Legislatures, and let them decide for themselves.

Whatever may or can be said in favor of instructions generally, cannot be applicable to this case. For the purpose of obtaining amendments to the Constitution, Congress can only propose, and the State Legislatures ratify. The duties are appropriate and distinct, and the uninfluenced independent act of both, requisite. The Legislatures cannot ratify, till a proposal is made. This subject can be elucidated and enforced by familiar examples. The House of Representatives alone, can originate a bill for raising revenue, but it cannot become a law without a concurrence of the Senate. Would not the advice and instruction of the Senate to the House, intimating our desire that they would originate and send to us for concurrence, a revenue bill, be thought improper, indelicate, and even unconstitutional? the President and Senate can appoint certain officers, but they have distinct and appropriate agencies in the appointment. The President can nominate, but cannot appoint without the advice and consent of the Senate.

But the Senate cannot nominate, nor could their advice to the President, to make a nomination, be either binding or proper. The character of the several independent branches of our Government, forming Constitutional checks upon each other, cannot be exemplified more fully, than in the mode of producing amendments. And an interference of one independent body, upon the appropriate and distinct duties of another, can in no instance have a more prejudicial effect. Can it be thought then, either proper or Constitutional for the State Legislatures to assume the power of instructing to propose to them a measure when the power of proposing is not only not given to them but given exclusively to Congress? As well and with as much propriety might Congress make a law, attempting to bind the State Legislatures to ratify; as the Legislatures, by instructions, bind Congress to propose. In either case the check which, for obviously wise purposes, was introduced into the Constitution, is totally destroyed. And we have not as much security against improper amendments, as we should have if the power were exclusively vested in the State Legislatures, and for this obvious reason, that, in this mode of operation, the responsibility, for the adoption of an improper amendment, is divided and destroyed. Is the sentiment correct, sir, that we shall be justifiable in sending forth this proposition to be considered by the State Legislatures, if we believe it ought not to be ratified? What would be thought of the Senate, if they should pass a bill, and send it to the House of Representatives for concurrence, the provisions of which they disliked entirely, and wished not to be established? And can any sound distinction be made between such a measure, and the one now before us? In either case, the single act of the other body would be final, and in either case the people at large would be safer to have but one body in existence to legislate or make amendments; for all our agency, in both cases, would only tend to deceive and mislead, and, in [p. 178] addition, to diminish if not destroy, as has just been observed, the responsibility of the other body. It has been said sir, that the House of Representatives have twice given a sanction to this measure, and that their conduct, in this particular, adds weight to it. I wish to treat that honourable body with the highest respect; but I must deviate from the truth, were I to acknowledge that their conduct upon this amendment, has a tendency to convince me that they have a full understanding of the subject. Twice have they sent us a resolution, similar in its leading feature to that on your table, and made no provision that the person to be Vice President, should be qualified for the highly responsible office, either in age, or citizenship; and, for aught that they had guarded against, we might have had a man in the Chief Magistracy, from Morocco, a foreigner, who had not been in the country a month.

Mr. President, — it was suggested in a former part of the debate, by a gentleman from South Carolina, (Mr. Butler,) that the great States, or ruling party of the day, had brought forward this amendment, for the purpose of preventing the choice of a Federal Vice President at the next election. And we are now put beyond the power of doubt, that this is, at least, one motive, by the observations of several of the majority, but especially by those of the gentleman from Virginia. He informs us, and I appreciate his frankness, that if the friends of this measure do not seize the present opportunity to pass it, the opportunity will never recur. He tells us plainly, that a minor faction ought to be discouraged, that all hopes or prospect of rising into consequence, much more of rising into office, should be crushed, and that this amendment is to produce a part of these beneficial effects; which amendment he compares to the bill which was introduced into the British Parliament, to exclude a popish successor to the Crown, commonly called the exclusion bill. Have the minority then, no right left, but the right to be trampled upon by the majority? This is identically the conduct which is mentioned in the quotation which I have had the honor to make from the Secretary of State; to which I ask leave to recur; “the majority, by trampling on the rights of the minority, have produced factions and commotions, which in Republics, have more frequently than any other cause produced despotism.”

What avails it then, that this country has triumphed over the invasion and violence of one oppressor, if they must now be victims to the violence of thousands? Political death is denounced now; what denunciation will follow? It would be a useless affectation in us to pretend to close our eyes upon either the cause or consequences of this measure.

— The Spirit of Party is High —

The spirit of party has risen so high, at the present day, that it dares to attempt what in milder times would be beyond the reach of calculation. To this overwhelming torrent every consideration must give way.

The gentleman is perfectly correct, in supposing that now is the only time to pass this resolution; [p. 179] there is a tide in the affairs of party most emphatically, and unless its height is taken, its acme improved, the shallows soon appear, and the present demon of party give place to a successor. A hope is undoubtedly now indulged that one great and dominant passion will, like Aaron’s rod, swallow up every other, and that the favorable moment can now be seized to crush the small States, and to obtain their own agency in the transaction.[get them to go along with it.] And when we recur to the history of former confederacies, and find the small States arrayed in conflict against each other, to fight, to suffer, and to die, for the transient gratification of the great States; have we not some reason to fear the success of this measure?

In the Senate is the security of the small States; their feeble voice in the House of Representatives is lost in the potent magic of numbers and wealth. Never until now has the force of the small States, which was provided by the Constitution, and lodged in this federative body, as a weapon of self-defence, been able to bear upon this question. And will the small States, instead of defending their own interest, their existence, sacrifice them to a gust of momentary passion? to the short lived gratification of party prejudice?

This resolution, if circumstances shall unequivocally demand it, can pass at the next, or any future session of Congress. But once passed, and its passage will operate like the grave; the sacrificed rights of the small States will be gone for ever. Is it possible, sir, that any small State can submit to be a satellite in the State system, and revolve in a secondary orbit around a great State? Act in humble devotion to her will till her purposes are gratified, and then content herself to be thrown aside like a cast garment, an object of her own unceasing regret, and fit only for the hand of scorn to point its slow and moving finger at? Can the members of the Senate who represent the small States, quietly cross their hands and request the great States to bind them fast and to draw the ligature?

I am aware, sir, that I shall be accused of an attempt to excite the jealousy of the small States. Mr. President, I represent a small state, I feel the danger, and claim the constitutional right to sound the alarm. From the same altar on which the small states shall be immolated, will rise the smoke of sacrificed liberty: and despotism must be the dreadful successor.

It is the cause of my country and of humanity which I plead. And when one vast, overwhelming passion is in exercise, full well I know, sir, that no warning voice, no excitement but jealousy, has been found sufficiently active and energetic in its operation to dissolve the wizard spell, and force mankind to listen to argument. Jealousy, hateful in private life, has perhaps done more in the preservation of political rights than all the virtues united.

I have made the stand, sir, in the Senate, which I thought the importance of the subject demanded. If I fail here, there is hope of success with the State Legislatures. If nothing can withstand the torrent there, I shall experience the satisfaction which is derived from a consciousness of [p.180] having raised my feeble voice in defence of that Constitution, which is not only the security of the small States, but the palladium of my country’s rights, and shall console myself with the reflection that I have done my duty.[Annals of Congress p. 180]