I repeat, Mr. President, that under the Lodge-Gossett system, as now proposed, eight elections, and possibly nine, would have been decided by the Congress since the election of 1880.

The proponents will say that we are not to use history if it helps us to show what a ridiculous and senseless proposal we have before us, although I must say that the proponents have not hesitated to call upon the past when discussing what they regard as the faults in the present election system. What is sauce for the goose is certainly sauce for the gander.

PROPOSED SYSTEM A BOON TO THIRD PARTY

But I would say that if this system had been in effect, and knowing that any candidate would have had difficulty in getting a majority of the electoral vote, and knowing especially that the Republican vote would consistently be underrepresented by the Lodge-Gossett method, there would have been a field day for third party or States-rights parties or States-righters running under a Democratic label in the South. This effect of the 50 percent proposal may, in fact, be the reason why some have insisted upon raising the requirement from 40 percent to 50 percent. It would give a third party, especially in one-party States and States where a very small electorate has disproportionate power, the opportunity to throw almost any presidential election into Congress, for decision. When this compromise was brought forward, one of two things happened: either, the full implications of this 50 percent provision were not realized by its proponents-in which case the Senate should vote overwhelmingly to reject this dangerous and ridiculous substitute amendment; or the advocates of this amendment knew full well the implication of this provision in their substitute, in which case the substitute should be defeated overwhelmingly by the Senate as unworkable, unreasonable, and a greater threat to our Presidential election system than any which has yet occurred in the history of our Republic.

PROPOSAL WOULD PROMOTE UNPLEDGED ELECTORS

There is yet another provision of the substitute amendment which should be examined closely. It is the provision which states that—

"Any candidate for elector who before the election has pledged his vote for President or Vice President to a specific person shall, if elected, cast his vote for such person."

On first reading, Mr. President, this provision appears to be an improvement over our present system, under which, as we know, electors can, and have, failed to vote for the presidential candidate of their party, although that has happened on only rare occasions.

However, when reviewed in the context of the Lodge-Gossett, Mundt-Coudert arrangement, this is, in fact a very dangerous provision.

Third parties and regional parties, under the substitute proposal, would have a controlling influence in every election. Knowing this, there is nothing in this language to prevent-and indeed the substitute amendment would encourage electors running unpledged. This would give them an influence over the electoral vote which unpledged delegations now have in closely contested national party conventions, with which I think the Senator from Pennsylvania, Mr. Duff, is somewhat familiar.

I think we should not suppress, as Senators, what as men we know to be true; namely, if either Democratic or Republican Party platforms or party candidates, took stands on issues such as civil rights, labor legislation, or progressive social legislation, groups in both parties who disagree with such issues not only could, but probably would, keep electors in their States unpledged, thus giving them controlling influence over an election and throwing it into the Congress.

This would also be true, but somewhat less true, of dissident groups on the left as well as on the right. I say this because the Lodge-Gossett or proportional system gives much greater influence to third parties in one-party States than to third parties in the large two-party States. For example, even though the proponents of Lodge-Gossett claim that it would fairly distribute the ectoral vote in proportion to the popular vote, this is not true. In 1948, the two thirdparty candidates received almost precisely the same popular vote. Thurmond got 1,169,021 votes and Wallace got 1,157,172 votes. In that election Thurmond received 39 electoral votes and Wallace none. Under the Lodge-Gossett proportional method, which is supposed to remedy such situations, Thurmond

would have received 38.6 electoral votes, or 7.3 percent of the total number, and Wallace 9.4 electoral votes or 1.8 percent of the total. Thus, even this proportional system gives much greater weight to a third party in one-party States than to third parties in large two-party States. Of course this is true, also of the vote of the two major parties-i.e., the one-party States would have the whip-hand.

PROPOSAL WOULD PROMOTE PARLIAMENTARY SYSTEM

There is yet another consequence which follows from the Lodge-Gossett proposal. I have shown that 8 and possibly 9 of the last 19 presidential elections would have been decided by Congress under its 50 percent provision. This means that congressional candidates would be running not only as representatives of their districts, but as presidential electors. In this respect this provision would change, completely, the American system and make it far more like the parliamentary system where the personalities of the local candidates and the local issues they represent, are much less important than the national party label. This might be good or bad, depending on one's point of view, but it would be a logical consequence of the substitutes now before us.

Now, Mr. President, if we are going to have a parliamentary system, let us debate that and decide that on its merits, but let us not drag it in by the back door as it would be dragged in under the provisions of this substitute amendment.

PROPOSAL RISKS DISASTER

Let us look further as to the consequences of throwing almost all elections into Congress for decision.

First of all, the will of the people would be frustrated. Many, and in fact most, of the presidential candidates who received a majority of the popular vote, would find that notwithstanding their popular majority Congress itself would have to determine the election. That is a much greater evil than any supposed evil which now exists in the electoral system.

Second, there would always be an 8 weeks delay before the public knew the outcome of our Presidential elections-that is from the election date in November until the Congress met in January. This type of delay and uncertainty, which would occur every 4 years, would strain our presidential election system beyond the breaking point. The budget would be delayed, there would be no time for the candidates to determine the personnel they desired to serve with them, there would be trades and bargains for every conceivable post, position, and benefit desired by this or that powerful group in Congress, and all three candidates would be operating in a vacuum, not knowing whether they or their opponents were to be the President. We would have a Hayes-Tilden circus in every election. This general indecisiveness could bring down the system. Third, it is quite clear that in any election, the man with the third highest popular vote would continue to remain in a strong position even after his clear defeat at the polls. With stalemates between the two front runners, the third party candidate would be in a position not unlike that now held in party conventions by the dark horse candidate when the two front runners are deadlocked. If not chosen as President, he would dictate who would be Presi dent.

Fourth, and perhaps the most dangerous implication is that this process would, as the Senator from Pennsylvania has observed, weaken the presidential leadership which is imperative at this stage in our history. In almost any election, the winning candidate would be dependent on Congress for his election. Think of the concessions he would have to make to group after group. Think what effect this would have on the general concept of division of power between three equal institutions the Presidency, the Congress, and the judiciary. Congress would dominate. The President would be in its control and power. And given the groups and regions which would have the decisive and controlling influence in the Congress, this could only mean a weakening of the progress at home and a return to isolationism abroad.

Mr. President, under this amendment and its clear implications and consequences, our Nation would be courting internal disaster in a time of external peril, if we were to be so foolish as to pass it with a two-thirds vote of the Senate.

(The following is reprinted from "Selecting the President: The Twenty-Seventh Discussion and Debate Manual" (1953–54), vol. 1, edited by Bower Aly :)

THE IDEAL METHOD OF SELECTING THE PRESIDENT OF THE UNITED STATES

(By Frederic R. Coudert, Jr.†)

There can be few more fascinating subjects for consideration than the ideal method of selecting the President of the United States, without regard for any purely practical situations. There is, of course, an ideal way of selecting the President. That is the basis of a proposed amendment to the Constitution of the United States, which I first introduced in the House of Representatives in March, 1949, and in each succeeding Congress. It is sponsored in the Senate by Senator Karl Mundt of South Dakota.

The ideal is the archetype, the most perfect in all of the circumstances concerned. It is not mere fancy, or imagery, rooted in the gossamer of illusion, or in wishful thinking. Rather, the ideal is rooted firmly in the rich soil of the Wisdom of the Ages, which has nourished all of the earthly blessings men have been able to earn for themselves.

Selecting the President, in the context of subject, and for this article, means the steps of nominating and of electing the President.

In particular, the office of President of the United States, developed out of our own political heritage, is rooted in the heritage of ideas, principles and practices that came to culmination in the Constitution. It is no reflection on the Founding Fathers, the authors of the Constitution, to say that they merely re-arranged familiar things in a new light. The new light was their genius; and true genius was required to take the familiar things apart, re-erect them on a new foundation and, at the same time, build a structure at once so perfectly proportioned and balanced that, in a half-dozen generations, their handiwork grew into the most powerful Nation mankind has known. The Founding Fathers were political architects and builders. But they did not make the material with which they worked. They did understand it.

In this light, to consider the ideal way of selecting the President is, indeed, a fascinating undertaking.

To begin at the beginning, we must consider, in proper perspective, "all of the circumstances concerned" out of which the ideal method of selecting the President will naturally flow. This involves a brief description of the American Political System, a brief outline of its origins and development, the place of the office of President in the larger scheme, and some comments on the party system. From this the ideal way of selecting the President of the United States will stand out in bold relief.

At the outset, let us exclude, as inapplicable to the subject, the concepts, principles and practices of those European political systems founded on the Roman Law. For, as Roscoe Pound, then Dean of the Harvard Law School, observed in his introduction to "Americans on Guard":

"There are two traditions of adjusting relations and ordering conduct in the World of today, the Roman and the English. *** The one is solicitous for efficiency of official action and subordinates thereto the securing of individual interest. The other is solicitous for the individual and imposes checks and limitations upon officials to safeguard individual interests. *

"It is no accident that where one tradition obtains there are autocracies while in the domain of the other there are democracies. Nor is it an accident that the great English-speaking lands, deriving their political ideas from England, are federally organized. A federal polity cannot be an autocracy. * * *

"We inherited the idea of government according to law from the struggle between courts and crown which established the supremacy of the law against the Stuart Kings. * Thus far our whole political and legal development has con

formed to it.

The Honorable Frederic R. Coudert, Jr., is Member of Congress from the Seventeenth District of New York. The article here presented was written in response to the editor's invitation for Mr. Coudert to address himself to the question, "Neglecting all purely practical considerations, what would be the ideal method of selecting the President of the United States?"

"Today ideas of public law imported from Continental Europe are being taught and urged against our American legal-constitutional polity. *** We are told that the separation of powers *** are not more than an eighteenth-century political fashion. * * * In the rise of absolutism throughout the World, we, too, show signs of becoming infected." [Emphasis supplied.]1

The American Political System is unique among all others in history. In part, it may be likened to a Tree of Liberty-root, trunk and branch, blossom and fruit. The fruits are the Blessings of Liberty and the roots are the People of the United States. Equally important-perhaps more important is the soil into which the roots are sunk. For this soil is the body of ideas fundamental to the very existence of American institutions and their upholding traditions.

The Constitution of the United States is the capstone of the American Political System. It is the instrument by which the people in the States created a government for the United States, deriving its just powers from the consent of the governed. Its primary purpose is the protection of personal Liberty," the sum total of human rights-from the beginning to the end. No other government was ever formally dedicated to this purpose.

The political structure or form of government in the United States can be described as a limited dual-sovereignty in a federal-union of States, with a separation therein of the delegated powers of sovereignty, Executive, Legislative and Judicial. Here it should be noted that while the powers delegated to governments by the people are sovereign powers, the whole sovereign power of the people is not delegated. They have kept for themselves full sovereignty in the moral realm of personal Liberty.

Sovereignty is the power to declare, and enforce, the law. In unitary governments, like those of Continental Europe, which are founded in the Roman Law, there is only one sovereign government in a country and its sovereignty is complete, unlimited and undivided. It is very easy to see and to understand. The legislative body is the sovereign. It chooses the executives (cabinet) from its own membership; and courts are administrative rather than independent judicial bodies. In practice, Europan governments exercise the powers of sovereignty to declare the law in advance, as a guide to human conduct (legislative); administratively, in the daily conduct of the public business (executive); and in cases in court (judicial). For these are the functions of government, to the extent of the objects of government. With them the objects of government are all-inclusive, extending to every person and every thing. As I said above, such a governmental structure is easy to comprehend. The legislative power is dominant; and it derives its authority (office) from the voters.

Against the stark simplicity of the structure of European governments, the structure of our Federal Government is somewhat complex. Let me offer an extract from "The Federalist No. 39" by James Madison. Madison was describing the elements of the new government proposed in the Constitution, then under consideration; and in the very terms used by the anti-Federalists in their campaign of opposition. It is most helpful in understanding the ideal way of electing the President. Madison wrote:

"In order to ascertain the real character of the government, it may be considered in relation to the foundations on which it is to be established; to the sources from which its ordinary powers are to be drawn; to the operation of those powers, to the extent of them; and to the authority by which future changes in the government are to be introduced. [Constitutional amendments.] "*** the Constitution is to be founded on the assent and ratification of the people. ** Not as individuals composing one entire nation, but as composing the independent states to which they belong. *** The act, therefore, establishing the Constitution will not be a national, but a federal act * it is to result neither from a majority of the people of the Union, nor from that of a majority of the States. It must result from the unanimous assent of the several States that are parties to it. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority. *** Each State, in ratifying the Constitution, is considered as a sovereign body. *** In this relation, then, the new Constitution will, if established, be a federal, and not a national constitution.

1 "Americans on Guard," by O. R. McGuire, A.M., S.J.D., LL.D. (Washington, D.C.: American Good Government Society, 1943).

2 Liberty, as seen here, is endowed by God in His creation of man and thus is within the realm of the moral law. The field of license is outside the moral realm. Liberty is used exclusively in both the Declaration of Independence and the Constitution.

8 "The Federalist," Modern Library Edition (New York: Random House).

The House of Representatives will derive its powers from the people of America; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State. So far the government is national, not federal. The Senate, on the other hand will derive its powers from the State, as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is federal, not national. The executive power will be derived from a very compound source. The immediate election of the President (by Electors) is to be made by the States in their political characters. The votes allotted to them are in a compound ratio, which considers them partly as distinct coequal societies, partly as unequal members of the same society. From this aspect of the government, it appears to be of a mixed character, presenting at least as many federal as national features.

as it relates to the operation of government * *the Constitution falls under the national, not the federal character *** the operation of the government on the people, in their individual capacities, in its ordinary and most essential proceedings, may, on the whole, designate it, in this relation, a national government.

**** it changes its aspect again *** in relation to the extent of its powers. The idea of a national government involves in it *** an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature. * * * In this relation, then, the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. ***"

If the sole basis of choice between a complex Federal government and a simple unitary national government were simplicity and ease of understanding, the thoughtless would always choose the simpler one. Fortunately, the less thoughtful make their choice on the basis of results. On this basis, the Blessings of Liberty, under our seemingly complex governmental system, have so far exceeded the promises even the hopes of the Founding Fathers, that there can be but few, even today, who would consolidate us into one government, and reduce the State governments to the status of provincial satrapies. If this, then, is to be the choice, the ideal way of selecting the President is beginning to take shape. It must fit in with, and be in balance with, the different parts of our complex federal-national system.

Before advancing that thought farther at this point, let us go back to the roots of the ideas and the practices that came to fulfillment in the Constitution of the United States, the materials with which the Founding Fathers built such a remarkable political edifice.

Here we meet two views. The first one is that the thirteen Colonies rebelled, threw out King George III's royal governors, voluntarily came together in the Continental Congress as sovereign states, won the War of Independence, perfected the Union by adoption of the Constitution, and went on from then to now. This is an heroic view and, in the main, is true. However, in Law, especially

in the Law of Nations, there is a different picture.

The Colonial governments in rebellion were de facto (of fact) governments but not governments de jure (of law). The War of Independence was not concluded with the surrender of Lord Cornwallis at Yorktown. It was concluded by the Treaty of Paris in 1783, by which King George III of Great Britain transferred his lawful rights in and over the thirteen colonies in North America to the Thirteen States of the United States of America. The Treaty of Paris made the thirteen de facto governments into thirteen governments de jure. Article 1st of the Treaty of Paris reads:

"His Britannic Majesty acknowledges the United States, viz. New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states; that he treats them as such; and for himself, his heirs and successors relinquishes all claims to the government, proprietary and territorial rights of same, and every part thereof. * * *”

But where did the King of England get his rights to govern the Colonies? The answer in part is that the colonists came to North America under the sponsorship of the English King, brought English Law and political ideas with them, and settled on land which had been claimed for England. That is the