The Framers at the Constitutional Convention were initially uncertain regarding how the President should be elected. For most of the convention, they favored appointment by Congress, but fears that the President would become too dependent on Congress persuaded them to entrust his selection to an independent body of electors – the Electoral College. In the Framers’ expectation, however, the Electoral College would just identify and nominate potential candidates; the House of Representatives would do the actual electing, selecting the winner from among the top candidates nominated by the College. Moreover, the Framers envisioned that the choice of President would be made on meritocratic, not partisan, grounds. After the Washington administration, however, national political parties emerged, transforming the Presidential election into a partisan contest. In this newly partisan environment, each party assumed the responsibility for selecting its nominee, and they initially did so through informal discussions among prominent party leaders.

For present purposes, I take “America’s Unwritten Constitution” to refer (at least in some measure) to the norms, conventions, and practices that have developed in America to give meaning to, and fill in the gaps of, the constitutional text that was penned in 1787, ratified by a requisite number of states shortly thereafter, and formally amended by the Bill of Rights in 1791 and seventeen times during the two-and-a-quarter centuries since. One important constraint on the nation’s Unwritten Constitution is that is must, at some acceptable level, accommodate itself to the written document. A related feature of the Unwritten Constitution is that, as with the formal text, abiding aspects of the unwritten version need to be anchored in some kind of political foundation. These two features of the Unwritten Constitution – a fidelity to the document itself and a grounding in democratic processes – can be helpfully appreciated by examining another crucial component of today’s Unwritten Constitution, and one as to which federal courts have generally been much less central in determining the meaning and operation of the written Constitution’s provisions: the way we select Presidents in America.