THE ELECTORAL COLLEGE HAS NO PLACE IN MODERN DEMOCRACY

constitution

The electoral college is in the news again, thanks to the outcome of the recent presidential race.  The latest count–now that the final tally is in from Michigan–shows Trump winning the electoral college handily, 306-232, while losing the popular vote by more than two million ballots, or about 1.7 percentage points.  President-elect Trump thus joins a short list of individuals to win the presidency while losing the popular vote–the others being John Quincy Adams (1824), Rutherford B. Hayes (1876), and George W. Bush (2000).

Predictably, Republicans have rediscovered a deep appreciation of the Founding Fathers for instituting such a wise mechanism for selecting the chief executive.  Most notably, Donald Trump–who as late as 2012 declared the electoral college a “disaster for democracy–now thinks it a “genius” system.  Democrats, for their part, are incensed that the popular will has been thwarted and respond in one of two ways.  Some, like Nancy Pelosi, are calling for a constitutional amendment to abolish the institution entirely.  Others are encouraging electors to disregard the vote of their states and cast their ballots for the candidate who actually won the popular vote.

Clearly, partisan self-interest is driving supposed principles on both sides, and most Americans will recognize that and respond in kind, i.e., according to their partisan leanings.  This is unfortunate, because the problems with the electoral college are real, and need to addressed.  Partisan convictions will insure that this never happens, however.  According to the Constitution, the electoral college cannot be eliminated without a constitutional amendment, and that would require, not only that two-thirds of both houses of Congress agree to a proposed amendment, but also that three-quarters of the states then go on to ratify the proposed change.  In sum, there is absolutely no way to eliminate the electoral college without sustained and extensive bipartisan support, which is another way of saying that it ain’t happening any time soon.

So for now, all we can do is point out that the electoral college doesn’t remotely function as it was intended to by the Framers of the Constitution, and that neither the defenders or the critics of the institution are interested in seeing that happen.

Precious few of the delegates to the Philadelphia Constitutional Convention of 1787 were eager to see the executive of the new government chosen by the direct election of the people.  There were a few lone voices for this alternative, but most deemed it either unwise or unfeasible.  Whatever they thought about the intellectual faculties of the common man, few believed that the rank and file of Americans would have enough knowledge of national affairs and distant statesmen to choose wisely.

Most of the delegates favored one of two alternatives to direct election.  One camp advocated that the president be chosen by the state legislatures.  The other proposed that he be elected by Congress, much like the prime minister in the British parliamentary system.  The electoral college was a compromise between these options in that the state legislatures were to chose electors who would vote for president, and then when no candidate received a majority of the electoral votes–as the Framers fully expected to be the norm once George Washington had left the scene–the House of Representatives would make the final decision in a run-off.  The result was that, in a “normal” election year, both the state legislatures and the Congress would play a role in the election of the president.

Alexander Hamilton

Alexander Hamilton

But what role would the people play?  The best explanation of how the Framers would have answered this question comes from the pen of Alexander Hamilton.  During the debate over ratification in 1787-1788, Hamilton, James Madison, and John Jay penned a series of eighty-five essays in support of the Constitution that became known as the Federalist Papers.  In Federalist no. 68, Hamilton offered the fullest discussion of the way that the electoral college would function and the part that popular opinion would play in regard to it.

In explaining the structure of the electoral college, Hamilton began by observing that the Framers thought it desirable “that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided.”  He then went on immediately to describe the electoral college as a body of individuals who were to apply “a judicious combination of all the reasons and inducements which were proper to govern their choice.”

In an editorial in this morning’s Washington Post, Harvard law professor Lawrence Lessig quotes Hamilton’s statements as grounds for three conclusions: 1) Barring extraordinary circumstances, the Framers intended that the popular preference should determine the choice of the president.  2) They intended the electoral college to serve as a “safety valve on the people’s choice” that would either affirm or (on rare occasions) overturn the decision of the voters.  3) Given that Hillary Clinton is clearly qualified to serve as president, there is no good reason for electors to overturn the people’s choice.  Ergo (I imagine that’s what they say at Harvard), the electoral college would be acting consistently with the intentions of the Constitution’s Framers by electing Hillary Clinton over Donald Trump.

Needless to say, Lessig is a Democrat.  (He actually briefly sought the Democratic nomination for president last fall.)  I don’t take issue with his editorial on partisan grounds, however, but on historical ones.  Lessig’s training is in economics and philosophy, not history, and so he may actually believe that his interpretation of Federalist no. 68 is accurate.  It’s not.  Whether intentionally or accidentally, he grossly misrepresents what Hamilton was arguing.

When Hamilton observed that the Framers believed that “the sense of the people should operate in the choice” of the president, he did not have a direct election in mind.  Read in context, it is clear that, to Hamilton’s mind, the public’s role was to have a voice in the selection of electors.  That role might be very indirect.  The Constitution does not specify how the states are to choose electors, and in the early years of the republic the vast majority were simply appointed by the state legislatures.  This means that, to the degree that the average voter had a voice in the selection of electors, it was by voting for candidates to the state legislature, who would at a later time appoint electors.

It is hardly the case that the Framers then charged the electoral college with the job of quality control, overturning the people’s choice when the masses had chosen poorly.  Rather, there was no expectation that the electors would pay any attention to the popular vote for the presidency, or even that there would be a popular vote for president.  Although states gradually began to institute popular elections for the president, this was not immediately the norm, and we do not even have a recorded popular vote for president for the first nine presidential elections in American history.

It is important to remember that the Framers of the Constitution did not anticipate the rise of formal political parties (and would have been distressed by the prospect).  The “sense of the people” was not to be registered by voters supporting state legislators of one political party over its rival, nor were electors to be chosen because of their public identification with one party or its opposite.  The people’s role was simply to choose electors (or state legislators, who would choose electors) who were known for wisdom and integrity.  The electoral college that resulted would not refer to the popular vote at all.  Instead, Hamilton explained, it was hoped that they would “possess the information and discernment requisite” to selecting the next president.

Lessig’s contention that the Framers would have wanted the electoral college to be guided in any way by the people’s choice shows a basic misunderstanding of the historical context.  He is right, however, that the Framers wanted members of the electoral college to be “citizens exercising judgment, not cogs turning a wheel.”  On those grounds, it would be entirely in keeping with the values of the Framers of the Constitution if electors from red states cast their ballots for Hillary Clinton on the grounds that Donald Trump lacks the experience, the temperament, the discernment, and the integrity that the office of president demands.

The majority of Americans, would see Clinton’s election by this means as illegitimate, however.  Americans in 2016 share few values in common with the Framers of the Constitution we claim to revere.  Generally, the Framers held to a world view that scholars term “republican” (no relation to the Republican Party): they held a skeptical view of human nature and maintained that the proper function of government office holders was to rule virtuously on behalf of the people’s welfare but not necessarily constrained by the people’s preferences in every matter.  For nearly two centuries, Americans have ascribed to a democratic worldview that rests on a positive view of humans as morally good and insists that the role of elected officials is to serve as a mouthpiece for majority preferences.

Not all of us will celebrate this repudiation of the values of the Framers.  I certainly don’t.  But this doesn’t change the fundamental reality: the electoral college doesn’t belong in our world.  It originated from a set of assumptions that the majority of Americans no longer affirm, and many would now roundly denounce.  It survives because of the difficulty of convincing both major parties, simultaneously, that neither stands to gain from its anachronistic presence.

 

 

13 responses to “THE ELECTORAL COLLEGE HAS NO PLACE IN MODERN DEMOCRACY

  1. Pingback: MORE ON THE ELECTORAL COLLEGE | Faith and History

  2. States started out with legislatures appointing electors and then went to a popular vote for one faction’s electors. If they got there by an act of state legislature, couldn’t they go back to the original mode the same way?

    Or was there a federal law requiring states to do things as they are now done?

  3. “On those grounds, it would be entirely in keeping with the values of the Framers of the Constitution if electors from red states cast their ballots for Hillary Clinton on the grounds that Donald Trump lacks the experience, the temperament, the discernment, and the integrity that the office of president demands.”

    This statement is true if, and only if, the red state electors exercised “a judicious combination of all the reasons and inducements which were proper to govern their choice” and determined that Clinton does have the experience, the temperament, the discernment, and the integrity that the office of president demands. I would argue that none of these things is true about her. Rejecting one candidate does not imply that his opponent is qualified.

    But maybe the electors could select another able, honest person. Could the electors “draft” someone who wasn’t even a candidate?

    • ” But maybe the electors could select another able, honest person. Could the electors “draft” someone who wasn’t even a candidate?”

      I could think of any number of able and honest persons for the job and some even ran in the primaries. Just think of what the electors could do if they thought they were wiser and more discerning than the voters. I suspect they would never be able to go home again it they did choose someone else.

    • George: The Constitution would not prohibit the electors voting for someone who wasn’t a candidate (as long as he or she was a U. S. citizen by birth and at least 35 years old), but I am sure that state law in numerous states would prohibit that.

  4. Good, balanced article. My question is “When did the America first start thinking of itself as a democracy?”

    • Good question, John. This is something that historians don’t necessarily agree about, but I would place it in the half-century or so after the creation of the Constitution. Certainly, by the 1820s there were numerous public figures who were speaking of the U. S. in those terms.

      • Thank you for that. In other words, within the lifetime of Jefferson and Adams, and very much within the lifetime of Madison. Interesting.

      • by the 1820s there were numerous public figures who were speaking of the U. S. in those terms

        But we’ve had 200 years since then to change the Constitution and abolish the Electoral College–which we have not. That we “think of ourselves as a democracy” is an untestable assertion, and rebutted by the facts on the ground.

        Instead of using “democratic” principles to undermine the republic, we should be using republican principles to fight off majoritarianism!

  5. In response to Gary, Yes! Perhaps this was a holdover from the British class system which ascribed to the ruling class a superior moral ethic. They were assumed to be more honest and responsible than the lower classes.After all, that is why they are in the ruling class to start with!

  6. Re:
    “Generally, the Framers held to a world view that scholars term “republican” (no relation to the Republican Party): they held a skeptical view of human nature and maintained that the proper function of government office holders was to rule virtuously on behalf of the people’s welfare but not necessarily constrained by the people’s preferences in every matter.”

    So the Framers didn’t have the same skeptical view of the human nature of government office holders?

    • Hi, Gary: The answer to your question is “yes” and no.” On the one hand, they thought that the best political system would be one that channeled “enlightened,” “virtuous” statesmen into positions of leadership (with “virtue” here defined as a willingness to deny self for the good of the larger political community). But as James Madison acknowledged in the Federalist, “enlightened statesmen will not always be at the helm.” This is why the Framers instituted checks on power in TWO ways in designing the new framework of government: checks on the popular power over government, and checks on the government itself. Madison put this succinctly in Federalist 51: “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

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