(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 tol 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 gov ernment 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.] 66 * * 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.

a "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

legitimate aspect of the business. The newcomers were not immigrants, in that they had to make no change in sovereign allegiance, but were settlers or colonists, expanding the realm of their sovereign.

The English Kings reigned under the monarchical principle, which, at the time of the Separation of the Colonies from Great Britain, had developed into a hereditary right of the eldest son, the Crown Prince, to succeed to the throne. In a much closer way than many might admit, the title of king may be compared to the Constitutional powers of the office of President of the United States.

In the early Middle Ages, beginning with the Fifth Century, the monarchical principle among the Germanic peoples meant that the kin-right of families made the members eligible for election as king. Once elected, the king had a divine right to rule. He had the divine sanction by his birth and the peoples' sanction by election. Much, much later this hereditary right to be among those elegible for election to kingship became a hereditary right of a son to succeed. But this did not increase the powers of the king. For the king was under the law.

The purpose of this brief inquiry is to show that the Chief Executives, in our earliest heritage, more than fifteen centuries ago, were beneath the Law. What follows is from a magnificent work of Professor Fritz Kern, "Kingship and Law In the Middle Ages." This work was translated from the German by Professor S. B. Chrimes, of the University of Glasgow, who also contributed an Introduction.

994

Professor Chimes says, "We are encouraged to believe that the origins and foundations of our (English) Constitution were as peculiar to England as its later developments, which is not the case" (p. xiii).

The fuller view, which unfolds the relation of the powers of Germanic kings in the Middle Ages with those of our President in the Twentieth Century, is stated thus, by Professor Kern:

"A. The rights of the monarchy were derived not only from the king's independent, hereditary and divinely endowed title, but also from an act of the community-from kin-right and consecration on the one hand, and from popular election on the other.

"B. The monarch is above the community, but the law is above the monarch. In the language of the Germanic peoples, this means that, although the promulgation and enforcement of the law belongs to the king, the declaration of what the law is belongs to the community * * *

"C. If the theoretical limits of autocracy are clearly defined in this way, it is none the less true that the sovereignty of the people is excluded. The people participate in the appointment of the king, but the monarch's power is not simply a mandate conferred on him by the community. The people share in making the law, which is above the king * * whilst from the standpoint of Germanic law, the people lack the essential constituent of sovereign power to enforce the law *** Neither the rule of a monarch whose powers were limited by law, nor the active legislative cooperation of the community * was regarded as 'sovereign' in the modern sense. Sovereignty, if it existed at all, ruled over both king and community.”

The law which the Germanic kings promulgated and enforced existed long before they came to power, for "* * * medieval law must be 'old' law and must be 'good' law *** If law were not old and good law, it was not law at all, even though it were formally enacted by the State." Today, we would call such a law "unconstitutional."

But to go on with the medieval thought: "The fundamental idea remains the same: the old law is the true law. According to medieval ideas, therefore, the enactment of new law is not possible at all; and all legislation and legal reform is conceived of as the restoration of the good old law which has been violated.” * * * Right and law are restored as they had been in the good old days of King Eric (in Sweden), of Edward the Confessor (in Anglo-Norman England), of Charles the Great (among the French and Germans, or of some mythical law-giver.)

There were three degrees of popular participation in the medieval monarchies of the Germanic peoples: "The first is tacit consent, here the king acts formally alone, and so 'absolutely' in form but not in substance. The second degree is advice and consent; the third the judicial verdict."

"Kingship and Law." by Fritz Kern, professor in the University of Bonn. (Oxford, England: Basil Blackwell).

With us, the President acts "formally and alone" in executing the powers of his office; he acts with the "advice and consent" of the Senate in making appointments and in ratifying treaties. But our independent courts render the judicial verdict. All of these are functions of the delegated sovereign powers of the Constitution.

During the Sixteenth Century, Roman Law was "received" in the Germanic countries of continental Europe as the basic law of the land and gave strength to the doctrine of Divine Right of Kings and of "absolutism." Now that the kings have departed, these political ideas are the basis of the totalitarian state. Roman Law was not "received" in England. English lawyers and judges were able to withstand the invasion and keep their kings under the law.

The "old and good law" above is with us today as the "common law," unwritten but vital. It was brought to England by the Anglo-Saxons and brought to North America by English colonists, where it became the basis of the Constitution of the United States. With us, the functions of declaring the law and enforcing the law have been divided-as to objects-between the States and the Federal Government; and in each they have been sub-divided with appropriate powers among the Executive, Legislative and Judicial functions of declaring the law.

Although we have separated the Executive and Legislative powers (functions), they are closely related; for the President shares the Legislative Power to the extent of one-sixth of the Senators and one-sixth of the Representatives, when he disapproves an act of Congress. In fact, for a harmonious relationship, the Executive and the Legislative Powers should have the same political roots, the same base, the same constituency, as was intended when the Founding Fathers, in order to separate the Executive and Legislative Powers at the source, removed the election of the President from a joint session of the Senate and House of Representatives and lodged it in a body of Electors that was the exact counterpart of a joint session of the Congress.

My discussion of law and the ancient powers of the king to declare and enforce it is merely to show that these functions of sovereignty are naturally divisible and ought to be separated as we have separated them. And, also, to show that they are closely related and should derive their power of exercise, election to office, in exactly the same manner. This requires a closer relationship between the election of the President, through Presidential Electors, and the election of the whole Congress.

United States Senators are elected statewide, two in each State; the "Senatorial" Electors are and should be elected in exactly the same way. As for the 435 Electors, which correspond to the 435 members of the House of Representatives, they should be elected in Congressional Districts, or constituencies. This minor change from the present practice of statewide, en bloc election, would bring about the ideal way of electing the President of the United States.

If the "Representative" Electors are to continue to be elected statewide, as they now are, we should bring the elective basis of the Congress into alignment with that of the White House and elect all of each State's Representatives atlarge, or statewide, as Senators are elected. For here balance is essential to the ideal, because of the formal separation of two distinctly separate but intimately related functions in the declaration of the law.

The powers of the many established elective offices under the United States and the States have long been fixed. But, overwhelmingly, the persons who fill these offices come to them through the mill of politics, which is as it should be. For, politics is the noblest calling of mankind, even though many active participants do not quite measure up to the standard :

"To gain power, to keep it, and to govern-these are the special business of a politician, just as it is a working bee's business to make honeycomb and honey. But we are entitled to ask-how did he gain power? how did he keep it? what did he do with it when he had it? And the answers to these questions are always mixed up with morals." 5

Our party system is one of legally organized parties in the States and under state law. While our so-called national parties are lawful, they are extra-legal, in that they are not provided for by Federal law. National party conventions are but the coming together, under rules of their own making, of delegates from the legally constituted state parties. The State delegations, chosen in the States

Frederick Scott Oliver, "The Endless Adventure" (London: Macmillan and Co., Ltd., 1931), pp. 31-32.