Rufus King to C. King (September 29, 1823)

Monday Evening, Sept. 29, 1823.

To prove that your construction of the Constitution respecting the appointment of Electors is correct, it may be observed that according to the printed Journal of the Convention, it is evident that the choice of the President was a subject of great difficulty; and the more so, as the practice of the States was at that period dissimilar in the elections of Governor, or the state executive. In all the States except N. Jersey, east of Maryland, the choice of Govr. was made by the people; in New Jersey and the five southern States, the Gov. was chosen by the several State Legislatures. The members of the Convention in settling the manner of electing the Executive of the U. S. seem to have been prejudiced in favor of the manner, to which they were accustomed, in the election of the Governor of their respective States.

According to the Journal, on the 19th. of July, the Convention resolved that the Pr. shd. be chosen by Electors appointed "by the Legislatures of the States": on the 23. of July, they reconsidered this vote, and on the next day resolved that the President should be chosen "by the national Legislature."

This appears to have been unsatisfactory, and to have given occasion to much discussion and to different projects; the subject was referred to a large Committee, which rejected the choice by the national legislature, and reported the provision which is contained in the Constitution, viz that the President shall be chosen by Electors to be appointed "in such manner as the Legislature of each State may direct."

Comparing this established mode of choosing the Pr. with that which was adopted on the 19th. of July, recollecting the immediate reconsideration of that mode, and the deliberate adoption of the mode of choosing wh. is provided by the Constitution, it is reasonable to infer, that the power to direct the manner in which Electors may be chosen, does not give to the Legislature of each State, the power by which they themselves may make such appointment of the Electors.

Again the Constitution provides that Representatives shall be chosen by the People; Senators by the Legislature of each State and Electors in such manner as the Legislature of each State may direct. The Legislature may direct that Electors may be chosen by the people, by a genl. ticket in each State, or by districts; they may authorize the persons qualified to vote for the most numerous branch of the State Legislature, to vote for the Electors; or they may confine the choice to free-holders, as is the case in Virginia; or they may direct that the people shall in the several States, by ballot, or vivâ voce, choose Electors, with power to appoint the Electors of the President;2 in this way the Senate of Maryland is appointed; and it appears by the printed Journal of the Convention, that General Hamilton proposed this very mode of choosing the Electors of the President. As the language of the Constitution on this subject differs from the language of the first Resolution, wh. gave the appointment of Electors to the State Legislatures, in like manner as the Constitution gives the power to appoint Senators, it is not only reasonable, but almost necessary to give the provision of the Constitution a different interpretation, and to limit the same, so that the State Legislature may by law designate those who may appoint the Electors altho' they themselves may not appoint them.

This course of thinking has occurred to me, I suggest it to you; the facts are correct as I state them.