E.U. States and US Economies Compared Economically

Even in reporting and analyzing seemingly-objective economic data for comparative purposes, political ideology can creep in if that instinctual urge is powerful enough. Even in comparisons of political entities that are on the same level (e.g., city, region/province, kingdom, empire), “word-games” can be used to suggest that the republics being compared are on different political levels. The use of linguistic subterfuge is, I submit, underhanded and based on a stubborn refusal to admit to oneself that the two or more political entities being compared are indeed on the same level, rather than one being higher than the other. In the case of comparing GDP and GDP per capita between E.U. and U.S. states, the very fact that the states are being compared to each other, rather than a state in one union to another union (as if a state in one political union were equivalent to another union of states—a category mistake to be sure!), means that the respective states are in fact equivalent even though different labels are used according to whether a given state is in one union or another. In arguing these points, I shall juxtaposition the respective labels to highlight the absurdity of using different labels for ideological purposes.

In mid-April, 2026, Euronews, which reflects Euroskeptic language in order to appease critics of the E.U., reported that top E.U. states and U.S. republics were roughly similar in “economic size rankings.”[1] Even though E.U. states, like U.S. states, were (and had been) semi-sovereign states, Euronews belied its own economic likeness of the respective economic sizes of big states in both unions by erroneously inventing the label, “EU countries” just before “US states.” Then, in the next paragraph, the journalist used the label, “European economies” for the E.U. states yet retained US states. In English, the expression, “Something funny is going on here” is a way of applying suspicion to another person’s underlying motives. In other words, something more is going on in the writing of the article than merely comparing economic numbers. This is the idea.

The “word games” bent on subtly overlaying differentials are undercut when we turn to the numbers themselves. In terms of GDP, the list from highest to lowest shows E.U. states and U.S. states clustered: Germany, California, France, Texas, Italy, New York, Spain, and Florida. That big states in one union of states are economically equivalent to big states in the other union is good evidence that the respective states in the two unions are equivalent more generally. To take one example, the GDP of Spain in 2025 was €1.687 trillion and that of Florida was €1.624 trillion.[2] To be sure, in making more general comparisons between the two semi-sovereign states, Spain’s greater size, 3.6 times the territorial size of Florida, is significant. However, that Spain’s 505,990 square kilometers falls between the 423,970 of California and the 695,662 of Texas strongly suggests that in terms of territory, the large (and small) states of the respective unions cluster together, rather than it being the case that a large state in one union clusters with the other union overall. To be sure, the exception to this is Alaska being larger than the E.U. itself, but otherwise, the large states in the two unions cluster not only in terms of economic output, but also geographical size.

The article’s report of GDP per capita even puts some large U.S. states above even large E.U. states because New York, California, Illinois, Texas, and Florida have higher numbers than do the Netherlands, Germany, France and Italy. The bar-graph in the article even has all of the states in blue whereas the U.S. and E.U. are in other colors so those two unions could be compared to each other. Even though the graph is labeled as “EU’s top 5 economies vs. top 5 U.S. states” (notice, too, the subtle, selective use of periods in “U.S.” but not “EU” as if this means that the latter is an organization rather than a union of states!), that all of the states are shown with blue bars indicates that the states of the respective unions are equivalent (and that the unions can be compared with each other, rather than to a state).

In making the argument of state-equivalence, out of which I derived union-equivalence, I once read the ten volumes of George Bancroft’s History of the United States of America, From the Discovery of the American Continent after having taken Joanne Freeman’s Yale course on the American Revolutionary War. In writing British Colonies Forge an American Empire: A Basis for Trans-Atlantic Comparisons, I wanted to highlight that according to Bancroft’s studies, people on both sides of the Atlantic viewed the British colonies as being on the scale of the countries in Europe at the time. Bancroft reports in his texts that both the political elite in the colonies and in the British Empire’s host kingdom (i.e., Britain) tended to view the United Colonies as being on the empire- rather than kingdom-level.[3] In fact, even New England, the Mid-Atlantic, and Southern (informal) sub-groups of colonies were viewed as empires in themselves by some people! Not just a few British politicians were nervous about there being an empire (or empires!) within the empire; an empire consists of kingdom-level political entities. That both Virginia and Ireland were regarded as members of the British Empire is strong evidence that the British colonies in North America were regarded from the start in the Greek rather than the Roman sense of a colonialization (i.e., a colony constructed to be equivalent to the host country rather than as a part thereof; for example, a city-state in Greece creating another city-state). This is the historical underpinning for my conclusion that the U.S. states, rather than the U.S. itself, are equivalent to E.U. states, and therefore I submit that the claim that a state of the E.U. is equivalent to the U.S. is a political category mistake. In historical terms, no one would have claimed that a kingdom and an empire are equivalent because empires consisted of kingdoms. That both a free-standing, or free, kingdom and an empire were both sovereign does not make the two equivalent because sovereignty is merely an attribute rather than definitive.  

Comparative politics can extend beyond comparing types of political systems (e.g., democracy, autocracy) to consider the matter of equivalence in terms of city-states, regions, kingdoms, and empires. Early in the seventeenth century, the European jurisprud Althusius wrote Political Digest on federalism based on the Holy Roman Empire. In his text, he clearly distinguished between the different levels in a federation: the guilds, the cities, the regions, the kingdoms, and the empire. His theory of federalism has the next-lower being members (and thus represented) in the next-higher, with individuals being members only of the guilds. His isomorphic federalism is more the case in the E.U. than the U.S. because none of the American states have federal systems. By viewing the E.U. and the U.S. as equivalent, Althusius’s theory could be seen to be applicable to the U.S., especially in regard to that union’s large, internally heterogenous states like California, Illinois, and New York. Comparing apples with apples, and oranges with oranges in comparative politics can indeed have such significant practical benefits, but not if Europeans and Americans go on treating individual states in one union as being equivalent to the other union rather than to states thereof.

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1. Servet Yanatma, “E.U.’s Largest Economies vs. Top US States: How Do They Compare in GDP?”  Euronews.com, 12 April, 2026.
2. Ibid.
3. Skip Worden, British Colonies Forge an American Empire: A Basis for Trans-Atlantic Comparisons.

Is the E.U. in the U.S.'s Strategic Interest?

Is a more perfect Union in Europe in America’s national interest? On the American holiday in 2026 that principally honors George Washington, whose eight-year commitment as the military commander-in-chief to the cause of freedom for the 13 new sovereign republics that had been members of the British Empire (and would forge a comparable political Union[1]) was decisive, U.S. Secretary of State Marco Rubio visited the E.U. state of Hungary to deliver “a message of support from the Trump administration to Hungarian Prime Minister Viktor Orbán,” who was behind in the polls in his re-election campaign.[2] At their press conference, Orbán and Rubio “signed an agreement on energy cooperation and hailed what they described as a ‘golden age’ of bilateral relations.”[3] E.U. officials were nowhere in sight; it was as if Hungary were still a sovereign state rather than a semi-sovereign E.U. state. An implicit question untreated by the media in the E.U. or U.S. is whether bilateral relations between the U.S. and individual E.U. states, as if the E.U. were nonexistent, was still in the U.S. national interest, especially in the context of Russia’s ongoing invasion of Ukraine.

The full essay is at "Is the E.U. in the U.S.'s Strategic Interest?"

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1. Skip Worden, British Colonies Forge an American Empire: A Basis for Trans-Atlantic Comparisons (Seattle: Amazon Books, 2017).
2. Sandor Zsiros, “’We Want You to Continue’: Rubio Delivers Trump’s Campaign Message to Orbán in Budapest,” Euronews.com, 16 February, 2026.
3. Ibid.

Bulgaria: From the Lion to the Euro

Just weeks after the government of the E.U. state of Bulgaria resigned amid protests against the rampant corruption, the state traded in its currency, the levs, which means lion, for the federal currency, the euro. In the new year, 2026, Bulgaria stood to relieve holders of the state’s debt and to tame the endemic inflation that has plagued the state’s economy. In November, 2025, for example, food prices had risen by 5% year-on-year, “more than double the eurozone average.”[1] The term “eurozone” is actually problematic, as it, like the application of the jargon, “bloc,” to the E.U. itself is meant to obfuscate readers regarding the genre of the political, federal union. To claim that Bulgaria joined a currency zone is inferior stating that the state adopted the federal currency. Stated properly, the currencies in the E.U. can be compared with those that were in the early U.S., and all of those combinations of state and federal currencies can be held to be compatible with federalism.

When the U.S. “bloc” began in 1776, the members were sovereign countries and therefore they had their own currencies. The federal dollar commenced in 1785. The member-states had their own currencies until 1788, so those currencies were concurrent with the federal dollar for three years. The E.U.’s model has been that state governments can choose whether to retain their own currency or adopt the euro, so no state can have both its own currency and the euro as legal tender at the same time. The E.U. and U.S. provide us with various combinations regarding currencies in a federal system, none of those combinations being at variance with federalism itself. In fact, the salient feature of dual-sovereignty that characterizes early-modern federalism—which is distinct from confederalism, wherein the states hold all rather than just some of governmental sovereignty—is arguably most consistent with two currencies being legal tender. This is not to say that the U.S. got this right for three years when both state and federal currencies were legal tender in their respective jurisdictions. The American “bloc” was a confederation until 1989, after which the federal governmental institutions and the states both had at least some portion of the governmental sovereignty in the system. When dual-sovereignty came into effect, only the federal currency was legal tender throughout the union.

Of course, like the U.S. in its first several decades, the E.U. in 2025 still suffered from being dominated by its states at the expense of collective action at the federal level. Because one of the chief benefits of a federal system of dual sovereignty is that the states can operate as a check against excessive federal encroachment and the federal institutions can operate as a check against excesses, such as corruption and anti-democratic tyranny, in state governments. The latter check has been severely hampered in the E.U. because the state governments dominate even at the federal level. The adoption of the federal currency by Bulgaria can be viewed as a step in the direction of achieving federal-state balance of power because, as Christine Legarde, president of the E.U.’s central bank, said at the time, the euro is a “powerful symbol” of “shared values and collective strength.”[2] Such strength has been the big loser as the heads of the state governments have resisted, as per their political self-interest, proposing and voting for additional transfers of governmental sovereignty to the federal governmental institutions (i.e., government) in the executive and legislative branches.

So perhaps it can be said that dual currencies fits best with dual sovereignty, at least theoretically, but that this presupposes a balance of power between the state and federal governmental institutions. In the case of a “bottom-heavy” federal system, such as the U.S. was through the nineteenth century, and as the E.U. has been through at least its first three decades, as many states as possible should replace their respective currencies with the euro. Admittedly, even if the 27 rather than just 21 E.U. states would adopt the euro, this would not in itself mean that the E.U.’s hand would be strengthened in defense and foreign policy to push Russia back from Ukraine and Israel out of Gaza and the West Bank. Given the tremendous imbalance of power, however, such that the E.U. has had trouble in asserting collective action for the benefit of the whole union rather than just a few states, a powerful symbol of collective strength could help to dispel the allure of the anti-federalist, or Euroskeptic, ideology.

That intangible benefit is irreducibly political, and as such, it can be easily dismissed by E.U. citizens who are in denial regarding the distinctively political genre of their union. For such people, the adoption of the federal currency by more states is viewed primarily as potentially strengthening weak state economies and bad monetary policies. This applies especially to the adoption by small, corrupt states—Bulgaria being roughly equivalent to Maryland in population in 2025. After being turned out of office by mass protests against the systemic governmental corruption, the state government of Bulgaria certainly could not be relied upon to resist the temptation to inflate its currency given the public debt there. Generally speaking, corrupt people lack the self-discipline necessary to govern anything. The E.U.’s central bank was much more reliable, especially with Lagarde having been at the helm for many years, than the government of the E.U. state of Bulgaria. As salient as this benefit is in the state’s adoption of the euro, the impact, although subtle and largely symbolic, on European political integration, already under way, is worthy enough not to be relegated or ignored outright. The power of symbol can be louder in the long run that a lion’s roar. After all, as Leo well knows, the lion comes only late in the summer, when the heat of those dog-days can be unbearable. 

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1. Aleksandar Brezar, “Bulgaria Switches to the Euro Amid Mixed Reactions from Its Citizens,” Euronews.com, 1 January, 2026.
2. Ibid.

A Drone Wall for the E.U.: Russian Aggression Assuages Euroskeptic States

Speaking after his meeting with U.S. President Trump in Alaska during the summer of 2025, Russia’s President Putin said that if no agreement is reached with Ukraine, the force of arms would decide the matter. In other words, might makes right, or at least military incursion is a legitimate way to decide political disputes between countries. I would have hoped that such a primitive mentality would be antiquated in the twentieth century, but, alas, human nature evolves only at a glacial pace undetected within the lifespan of a human being. In September, 2025, the United Nations was under attack from within the General Assembly because of the continuance of the veto held by five countries in the Security Council; the U.S. had just vetoed a resolution for an immediate cession of Israeli destruction in Gaza. As a former deputy secretary of the UN had admitted to me during the fall of 2024, the veto itself renders the UN unreformable; a new international organization would have to be established sans vetoes for efficacy to be possible. Even so, absent a real enforcement mechanism, such as a military force, a resolution even of a vetoless organization would merely be parchment. The impotence of the UN is one reason why NATO, a defensive military transatlantic alliance, has been valuable in the face of military threats by Russia. Yet in September 2025, after Russian drones had flown into four E.U. states, E.U. President Von der Leyen felt the need to take the lead by again stressing her proposal for a drone wall along the E.U.’s eastern border; she was not deferring to any international alliance, much less to the United Nations. I submit that Von der Leyen’s initiative is yet another means by which the E.U. can be distinguished from international “blocs,” alliances, and organizations. Unlike the latter three, the E.U. has exclusive competencies and is thus semi-sovereign (and the same goes for the state governments).

The full essay is at "A Drone Wall for the E.U."

E.U. Flag Day

Both the E.U. and U.S. have their respective flag days during the month of June—on the 29^th and 14^th, respectively. This isn’t the only thing that the flags have in common, and what sets both off from the flags of the states. I contend that these similarities and difference regarding political symbols can function as markers for what both unions are as complex polities of polities even as ideologies seek to obfuscate and dissimilate, even dismissing or ignoring the history of both unions. In other words, flags don’t lie; people do.

The first flags of the E.U. and U.S. were both used by their predecessors, rather than being created in 1993 and 1789, respectively. These dates mark when the states gave some of their governmental sovereignty to the union-level judicial, legislative, and executive branches. The first E.U. flag had been used by the European Communities since 1986, and the first U.S. flag had been used beginning in 1777 by the alliance’s Second Continental Congress, and, moreover, under the Articles of Confederation, under which each of the 13 member countries was sovereign after having been colonies in the British Empire until 1776. Crucially, the Declaration of Independence declared the independence each of the 13 colonies, which even while colonies had been in a military alliance like modern-day NATO.

The original E.U. and U.S. flags. The sheer paralellism is astonding, especially given how differently the two unions are perceived today by the general public on both sides of the Atlantic Ocean. 

The E.U. flag contains stars representing its 12 original states and the U.S. flag contains stars representing its 13 original states because all of those states had been sovereign countries and still retained some governmental sovereignty. In fact, in 1993 and 1789, respectively, the states still held most of the governmental sovereignty, with the federal governmental institutions, or branches, being much restricted in their respective exclusive competencies and enumerated powers.

The parallelism itself is astounding, especially given the tendency in Europe to perceive the E.U. incorrectly as a “bloc” or international organization like NATO and NAFTA, and in America to perceive the U.S. like France with a large back-yard rather than an empire-scale union of semi-sovereign polities. This is precisely why the history of the two flags is so important to know, for treating the U.S. as if it would be a state in the E.U. rather than on the same level and scale as the E.U., and treating the E.U. as if it were a temporary “bloc” of sovereign countries for a single purpose like trade or defense as if a trade agreement of military alliance incur rather basic yet invisible category mistakes.

The basic, or qualitative difference between the unions and their respective states can be grasped by the fact that the E.U. flag’s twelve golden stars, “explicitly, and in contrast to” the flags of the states, represent the states and “the ideals of unity, solidarity and harmony,”[1] which are especially important at the union, empire-level because empires are inherently heterogenous (i.e., interstate differences in culture, norms, and values as well as dominant ideologies) whereas the states themselves are relatively homogenous. Rather than a difference in degree, the difference is that of a leap, given that there is a leap in geographical scale between that of a state and a union of many such states. 

That the stars in the E.U. flag are in a circle better stands for unity than does the arrangement of the 13 stars in the original Star-Spangled U.S. flag, but the circle configuration was in the Betsy Ross version, which although not the official flag, was consistent with the specifications in the Flag Act of 1777. The parallelism between the stars in the Ross flag and in the E.U. flag is very strong.

The Betsy Ross Flag, a close up of part of that flag, and the E.U. flag. The close up and the E.U. flag are directly parallel, with only the color of the stars differing. The stars on both flags stand for states.

The value being placed on unity and solidarity at the federal level is more crucial than at the state level, and this is reflected in the fact that the state flags not only do not have stars representing sovereign and then semi-sovereign polities therein, but also do not symbolically highlight unity or solidarity. 

In short, unity and solidarity, which by the way are put at risk by relying too much on the principle of unanimity in having state vetos at the union level, are more valuable at the federal level in an empire-scale union of states than at the state level. Therefore, empire-scale governance contains, or should contain, dynamics that do not exist at the state, or (early-modern, rather than medieval) “kingdom” level, such as in managing diversity of state preferences at the union level.  Interstate differences are more salient in union-level governance than regional differences are in state-level governance, and early-modern federalism, as distinct from confederalism, treats the two levels as qualitiatively different as a result. To conflate them is thus one hell of a category mistake, and yet people on both sides of the Atlantic Ocean do it much too often, given the reasoning potential of the human brain. Yes, ouch! Just for added fun, let's put corrective braces on the crooked teeth of "Brexit" and add some disinfectant mouth-wash to extirpate the bad odor from former British Prime Minister David Cameron's erroneous statement that the E.U. was just one of the international networks that Britain had been in. 

Before the United Kingdom seceded from the E.U., it could be said that the ideological and cultural differences throughout the empire-scale union bearing on political decisions needed to be managed in the European Council, the Council of the E.U., the European Parliament, and the European Commission dwarfed the differences between the four regions or provinces of the United Kingdom that had to be managed at the state level there. Put another way, whereas the original E.U. flag has stars representing the states, the state flag of the United Kingdom does not have stars representing its regions. Nor, for that matter, does the flag of Germany have stars representing its 15 regions. 

The governmental dynamics at the scale of former and existing E.U. states are in crucial respects qualitatively different than the unique dynamics that empire-scale unions of such states must have in order not to fall apart due to pressure from state differences seeking their own expressions yet while there is unity at the union level. This is the balance that renders federalism itself an unstable form of government, yet the best suited form to empire-scale unions of states. Contrasting union from state flags warns us not to conflate state with union-level governance, and thus states with unions of such states.

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1. Andreas Rogal, “European Flag Celebrates 40 Years as Symbol for EU and Predecessor,” Euronews.com, June 29, 2025.

Exfoliating a Hero: On Lincoln's Unconstitutional Overreaching

Lest we get carried away and inadvertantly enshrine our leaders with mythic laurals, it is worthwhile to peel back our societal "remembering" of past figures, such as Abraham Lincoln, who have become larger than life.

Lincoln was a moderate, promising merely not to spread slavery. In his address after being sworn in, he promised not to go after slavery where it existed. Accordingly, radical abolitionists complained. Even so, the 1860 campaign had been viewed, at least in the south, as a referendum on the southern way of life. Lincoln received only 40% of the vote; he was not even on the ballot in ten states.  There were just 33 states in the union at the time. Lincoln's victory suffered from a deficit of legitimacy in some quarters. In fact,he was burned in effigy at a state capitol in the south. With free Kansas becoming a state, the slave states felt that their respective abilities to defend their way of life in the general councils of the union would become even more truncated or dilute. Berift of a sense of influence on general matters that concerned themselves, the confederating republics felt they had no alternative other than secession.

On Feb 18, 1861, Jefferson Davis became President of the Confederate States of America. At his swearing in, Dixie, which had been composed by a northerner, was played. The two sides in the continental dispute were closer than they perhaps realized. Both Lincoln and Davis, for example, were from Kentucky originally.  According to the Confederate constitution, Davis had a line item veto and would have had a six year term had the confederacy lasted that long. Astonishingly, international slave trading was outlawed. Even so, there were fundamental differences involved in the dispute. Ironically, had the southern states freed the slaves before firing on Fort Sumpter--depriving Lincoln of his motivational tactic midway through the way--perhaps something resembling the southern way of life in a loose confederacy would have prevailed. The United States would have been left to consolidate to its heart's content.

On the way to his inauguration, Lincoln declared that he would rather be assassinated than to see even one star removed from the flag. Such a stance reflects the "all or none" mentality that accompanies political consolidation. In spite of Lincoln's line in the sand, the War between the Confederated States and the United States began at 4:30am on April 12, 1861.  Technically, it was a war between a federated alliance and a federal government. The opening act was bloodless, even as the war to come was the bloodiest in American history. Siloh alone matched the casualties at Waterloo, and there would be 27 more to come. 51,000 men lost their lives in the three days at Gettysburg alone. The contest between the old and new federal forms exacted a heavy toll in human loss and suffering. Who would have thought that contending distinctions in political theory could be so bloody. Of course, might does not in itself make right, although the passion of the unjustly oppressed can bring about victories disproportionate to the relative lack in number. Furthermore, in this particular case, the respective populations in the federations and the industrialization of several of the union's states gave the forces of modern federalism an advantage not necessarily sourced in the nature of the type.

At the time, the union states had a combined population of 21 million while the confederacy had only 9 million, 4 million of which were slaves and thus not in the fight. In spite of the fact that so many southerners volunteered to enlist that a third of them had to be sent back home, the confederacy was perhaps destined to lose the bellum given the tremendous disadvantage in terms of population. That the conflict lasted until 1865 may point to the extent of resentment that had been allowed to build up throughout the slave states against what was viewed there as an “intrusive” federal government. For example, the devisive tarriff that had nearly caused South Carolina to secede in 1832 was reimposed by the U.S. Government in 1858. As in 1832, the tax was to finance northern industrialization. The states producing cotton and/or rice were left not being able to defend their interests in Washington. Accordingly, that distant government was viewed as encroaching and increasingly foreign. The root of the festering dispute went far beyond the issue of slavery.

To the confederate citizens, the cause involved the rights of their republics as well as their property rights. Slaves, being viewed as property by their "masters"--a decadent conception of slavery unknown to ancient understandings--were thus in play as part of the wider and deeper southern concern with self-determination, which the southerners identified with their respective countries and associated ways of life. Even Lincoln's Emancipation Proclamation, which took effect on January 1, 1863 (almost two years into the war), applied only to slaves in the states that had already left the union (rather than to the five slave states that had remained).

The confederate states were not subject to U.S. law as long as they were part of the confederacy rather than the union. Lincoln's proclamation was thus extra-constitutional, and thus without immediate effect other than to motivate an increasingly weary northern citizenry and armed forces. To be sure, Sherman freed slaves as he blazed a trail to the sea. However, even without the proclamation, he would have deprived the confederates of their "property" along with their other means until they surrendered. Slavery was not outlawed in the United States until 1865, when the thirteenth amendment was ratified by the states (the former confederate states excluded even though they had been re-afixed to the union).  There was some duplicity involved in, "Welcome back to the union! But unfortunately your vote doesn't count yet because you don't agree."

Fundamentally, the "north" and "south" interpreted the United States differently. This is what the war was really about, and the issue went all the way back to the contentious debates in the constitutional convention in 1787. The delegates had hotly debated whether the proposed General Government would consolidate power via "general welfare" spending and the potentially unlimited taxation, irrespective of the question of slavery. The people who wanted to secede viewed the U.S. as more like a confederation than a modern federal government. That is, confederates viewed their states as countries and the U.S. more as an alliance having only strictly defined enumerated powers that a national government. Robert E. Lee, for example, was offered command of the union army. He refused and went with Virginia. He could not draw his sword, he said, against his native country. Virginia had to come first; there was never any question about that. Such a view of Virginia and the other republics was to fade even as they still retained residual sovereignty at least into the twenty-first century.

In general, the southerners feared that the federal government would usurp more and more power from their countries; as things turned out, the fear was not without foundation. Even then, Lincoln declared war against the confederated states even though the U.S. constitution clearly stipulates that Congress is the governmental body in the U.S. Government that declares war.  As the president is the commander in chief, there is a conflict of interest in that office also declaring war. So technically speaking, the war was not constitutional, and thus legal.  Lincoln also suspended habeus corpus, though the constitution allows for this in time of rebellion.  To keep the Maryland from seceding, he locked up thirteen of the state's legislators without trial. 

Chief Justice Taney, who had four years earlier concurred with the Dred Scott decision, said that Lincoln had gone too far beyond the constitution in the powers he was exercising. Taney was on firm ground on the declaration of war. Even so, astonishingly, the president simply ignored the chief justice. From the standpoint of an independent judiciary with teeth, Lincoln was laying a precedent very dangerous to the republic.

Because the judiciary has no means of enforcing its decisions by force, the branch depends on the other branches, and, indeed, the people, resisting the temptation to contravene a judicial decision. The basis of the resisted temptation rests on the court's legitimacy, for the judiciary has no troops of its own. In fact, Bickel refers to the court as the “least dangerous branch” for this reason. Lincoln’s precedent in simply ignoring the court put at risk the system of checks and balances that resides in the separation of powers in the federal government. Fortunately for us, Lincoln’s treatment of the Chief Justice's effort to hold the executive branch within its proper constitutional sphere, as though Taney were a mere bystander, has largely been forgotten.  Yet the expediency of an imperial presidency has indeed been on display since Lincoln as Congress has gradually lost power to the commander in chief. The danger is real, and Lincoln's precedent could yet be used by an ambitious commander in chief who has his or her eye on another country to invade. 

Ironically, Lincoln’s unconstitutional actions at the beginning of the war ironically to save the union could be viewed as confirming the charges made by the confederates against the encroaching nature of the federal government.  Lest we miss the lesson as we remember the bloody war 150 years later in 2011-2015 from the standpoint of the victors, we might take note of the susceptibility of power itself to consolidate, ultimately in one person—indeed, even in a hero. The consolidating proclivity is as much a danger in the modern American empire today as it was in ancient Rome.  

Source: Ken Burns’ The Civil War (PBS)

The Electoral College: Beyond the Conventional Wisdom

The matter of how the U.S. President is to be selected was a tough nut for the delegates in the Constitutional Convention in 1787 to crack. Mason observed the following in convention, “In every Stage of the Question relative to the Executive, the difficulty of the subject and the diversity of the opinions concerning it have appeared.”[1] The alternative proposals centered around the Congress, State legislatures, the governors, the people, and electors designated for the specific purpose as the possible determiners. Although the delegates were men of considerable experience, their best judgments about how the alternatives would play out were subject to error as well as the confines of their times. In re-assessing the Electoral College, we could do worse than adjust those judgments and rid them of circumstances pertaining to them that no longer apply. For example, the Southern States no longer have slaves, so the question of whether those States would be disadvantaged by going with a popular vote no longer applies; the alternative of going with the popular vote nationwide no longer suffers from that once-intractable pickle. Yet lest we rush headlong into a popular vote without respect to the States, we are well advised not to dismiss the points made by the convention delegates, for we too are constrained by our times, and we may thus not be fully able to take into account points that have been forgotten. Before turning to the views expressed at the convention, I briefly touch on the Electoral College. I discuss the apparent dichotomy between the College and popular vote, after which I discuss the relevance of federalism.

 

American citizens vote for slates of electors by state, and those electors then meet, again by state, to cast votes for the U.S. President. Because the electors are elected by popular vote, the dichotomy between the Electoral College and the popular vote is misleading. The question regarding the false dichotomy is actually whether to go with the popular vote by state or nationally. To be sure, electors in four states do not have to vote according to the popular vote in the state, and electors in the other states can vote contrary to that vote in those respective states but must pay a fine. The point lost on most Americans by the twenty-first century is that one of the original selling points of the Electoral College was that the electors could be a check on the momentary passions of the masses precisely by being able to vote contrary to the popular vote in electors’ respective states. Should the U.S. be attacked and the citizens have an emotional reaction to go to war, electors could say, in effect, “well, I’m not so sure we should go with the war hawk.” In short, the Electoral College is geared to protecting the best interests of the people even if they are blinded to it.

 

The Electoral College also gives some heed to the sovereignty retained by the States as members of the U.S. The U.S. Senate is the federal institution that represents the republics. In the College, the number of electors a State has equals the number of its U.S. senators and House representatives. Because this number is not by population and each State has two federal senators, less populated States have disproportionately more electors than the big States do. Besides the fear at the convention that the “big” States might pick the president either by electors or if by a national-level popular vote, the sovereignty retained even by the “small” (i.e., less populous) States warrants some role in the selection of the executive of the Union. To dismiss this point is to ignore what the U.S. is as a Union composed of semi-sovereign States. What I’m getting at here is that to dismiss these ongoing reasons for the Electoral College is to forget what the U.S. is (or are). When you no longer know what you are, you can be in real trouble when you act. Hence, it behooves us to take seriously the various points (and alternatives) discussed and debated in the convention. The answer may not be the Electoral College. In this case, the status quo is broken. In fact, the Electoral College has never performed as intended—most significantly in this regard as a check on “excess democracy” that can come with direct democracy even at the voting booth. Yet this does not necessarily mean that shifting from state popular votes to a national popular vote is wise. Considering the points raised by delegates in the federal convention, hidden downsides to a national popular vote can be seen, and this in turn may precipitate new ideas that are optimal. I turn now to the delegates in hopes that their wisdom might inform our public discourse on the topic.

 

Franklin, being quite elderly by the time of the convention, could afford to sit back above the debate and see the “big picture” in terms of democratic theory. “It seems to have been imagined by some that the returning to the mass of the people was degrading the magistrate. This he thought contrary to republican principles. In free Governments the rulers are the servants, and the people their superiors & sovereigns.”[2] The question of whether or not the people have what it takes to select a capable person of good character and standing for the presidency was debated at several points during the Convention. Referring to the federal executive, Morris urge, “He ought to be elected by the people at large. If the people should elect, there will never fail to prefer some man of distinguished character, or services; some man, if he might so speak, of continental reputation.”[3] Similarly, Madison said: “The people at large was . . . as likely as any that could be devised to produce an Executive Magistrate of distinguished Character. The people generally could only know & vote for some Citizen whose merits had rendered him an object of general attention & esteem.”[4] Already, these delegates were anticipating the expansion westward of the then-Thirteen-State Union. Morris and Madison were assuming that anyone attracting enough votes across a continent to win must be renowned, and thus distinguished of character or significant accomplishment.

 

Yet given the vast number of voters spread over a vast territory, or country, the sheer distance between the electorate and the candidates would mean the former could not really size up the latter. Mason “conceived it would be as unnatural to refer the choice of a proper character for chief Magistrate to the people, as it would, to refer a trial of colours to a blind man. The extent of the Country renders it impossible that the people can have the requisite capacity to judge of the respective pretensions of the Candidates.”[5] Lest it contended that the modern media closes in the distance, the media companies and their journalists and commentators have their own agendas and ideological biases, and the concentration of the media has enabled “groupthink,” wherein the public “airwaves” are unanimous in a judgment, even if very wrong as in the prediction of a near-certain Clinton landslide in 2016. Democracy at the empire-scale is not at all optimal.

 

Unfortunately, a relatively few “designing” men—or associations thereof—could take advantage of the sub-optimality. Gerry suggested that private associations not confined by State could take advantage of the problem. “A popular election in this case is radically vicious. The ignorance of the people would put it in the power of some one set of men dispersed through the Union & acting in Concert to delude them into any appointment.”[6] Such a “set of men” might in modern terms be a large corporation, or even an oligarchy. That is to say, large concentrations of private wealth could profit politically from the electorate being so large and dispersed.

 

That the U.S. was and is an empire not only in scale, but also in that it is made up of (early modern) “kingdom-level” polities (i.e., States) that differ culturally, just as the E.U.’s States do, presents additional problems for the popular election of the federal president. Sherman got at this when he said that “the people at large . . . will never be sufficiently informed of characters, and besides will never give a majority of votes to any one man. They will generally vote for some man in their own State, and the largest State will have the best chance for the appointment.”[7] The people cannot really get a sense of a candidate’s real character through the media—and almost the entire electorate could not possibly meet the candidates in person. Furthermore, the expanse of territory and the difficult cultures mitigate against a candidate being of such a reputation as to be acceptable in all of the States. In fact, the largest States in population could dominate the elections. To wit, Williamson claimed, “The principal objection [against] an election by the people seemed to be, the disadvantage under which it would place the smaller States.”[8] Pinkney got at the both points—that such a large, extended electorate could be easily manipulated and the electorates in the large States could dominate.  “An Election by the people being liable to the most obvious & striking objections. They will be led by a few active & designing men. The most populous States by combining in favor of the same individual will be able to carry their points.”[9] Williamson combined the “large State” problem with the extent of territory mitigating the chances of there arising a reputation of sufficient reach. “There are at present distinguished characters, who are known perhaps to almost every man. This will not always be the case. The people will be sure to vote for some man in their own State, and the largest State will be sure to succeed.”[10] In modern America, candidates would need only campaign along the crowded Northeast coast, the Bay Area in California, Southern California, and Chicago to get a majority of the popular vote. People in the rest of the States would be left out except for cases in which the election is close.

Dickenson had an interesting idea. Although he “leaned towards an election by the people which he regarded as the best & purest source” he surmised the greatest difficulty was “the partiality of the States to their respective Citizens. But, might not this very partiality be turned to a useful purpose. Let the people of each State chuse its best Citizen. The people will know the most eminent characters of their own States, and the people of different States will feel an emulation in selecting those of which they will have the greatest reason to be proud. Out of the thirteen names thus selected, an Executive Magistrate may be chosen either by the [National] Legislature, or by Electors appointed by it.”[11] What would keep the candidates from the largest States from winning election after election? 

Of all of those objections, I submit that the sheer size of the voting electorate—around 120 million in 2016—is the largest drawback of popular election. The problem is reflected in the extraordinarily long “campaign seasons”—16 months in the case of the 2016 presidential election—as candidates must campaign in what in Europe would be “country after country.” Even so, so very few voters can possibly have first-hand knowledge of even just one of the candidates that the electorate as a whole is left at the mercy of the concentrated media and the marketing-driven campaigns. The electorate in 1920 did not knew that Warren Harding had been a patient in a mental hospital five times, and Richard Nixon’s rather severe pathology only came to light after the Watergate scandal. For all the electorate knows, a candidate could be acting—even, as in Ronald Reagan’s case, be a professional actor.

 

We can expect the inordinate, self-invested influence of giant corporations and, moreover, the infamous “1 percent” because they know how (and have the means) to use the media to “steer” the public discourse and finance the candidates launching empire-scale campaigns. That the concentrated media companies are also large corporations does not reduce the risk of the onslaught of plutocracy by taking advantage of what the delegates sometimes called “excess democracy.” That the electorate can be so easily manipulated gets scant attention.

 

Thomas Jefferson and John Adams agreed in retirement that an educated and virtuous citizenry is essential for an ongoing republic. We the American electorate better educated at the very least in civics, the people could better fend for themselves against designing corporations and demagogues. Hence, Gerry pointed to a real problem: “The people are uninformed, and would be misled by a few designing men.”[12] He felt the problem so grave that the “popular mode of electing the chief Magistrate would certainly be the worst of all.”[13] We are dependent on the media and the candidates’ marketing campaigns. By in large, we see what the candidates and journalists want us to see. Hence, Mason observed, “It has been proposed that the election should be made by the people at large; that is that an act which ought to be performed by those who know most of Eminent characters, & qualifications, should be performed by those who know least.”[14] Mercer insisted that the “people can not [sic] know & judge of the characters of Candidates. The worst possible choice will be made.”[15] Doubtless this opinion would resonate with a considerable number of the electorate in 2016 of both parties.

 

Unfortunately, rarely do advocates of a nationwide popular vote take into account how grave those concerns were in the convention, and thus how many (but not all!) of the delegates felt about an empire-wide popular vote. It’s much more convenient to feel a sense of entitlement that throws caution to the wind. Hence the shared advice from Jefferson and Adams. So I think Morris got it backwards in saying, “It is said the people will be led by a few designed men. This might happen in a small district. It can never happen throughout the continent.”[16] In a small district (i.e., a small electorate), a larger proportional of the electorate have direct knowledge of the candidates, and so can dodge the “designing” ones. It follows that the relatively small number of electors in the Electoral College is within range of being able to “meet and greet” the candidates and their close friends (and detractors). Yet this assumes that the electors are independent not only of the majority of voters in the respective States, but also the political parties, and this has not been so since the College’s first day on the job.

 

The delegates at the convention considered other ways in which a relatively small number of people could select the federal president. Certainly having the Congress select would eliminate the problem of the selectors not being able to know (or get to know) the candidates. Additionally, the members of Congress could see to it that the candidate selected can execute the laws that the Congress legislates. After all, the delegates understood the purpose of the U.S. president to be “to carry into execution the [national] laws.”[17] According to Pinkney, “The Nat’l Legislature being most immediately interested in the laws made by themselves, will be most attentive to the choice of a fit man to carry them properly into execution.”[18] This could mean, however, that the legislature would be able to exercise control over the executive.

Hence Morris warned the other delegates, “If the Executive be chosen by the Nat’l Legislature, he will not be independent [of] it; and if not independent, usurpation & tyranny on the part of the Legislature will be the consequence.”[19] The check and balance that the separation of powers affords would be lost. As Morris explained, “the checking branch must have a personal interest in checking the other branch, one interest must be opposed to another interest. Vices as they exist, must be turned [against] each other.”[20] Hoping to be re-elected, or having to honor deals made with particular members of Congress in order to get elected in the first place, the president would not have a personal interest in checking the federal legislature even were it to over-reach at the expense of the liberties of the people. Hence, “A particular objection with [Wilson] against an absolute election by the [legislature] was that the [executive] in that case would be too dependent to stand the mediator between the intrigues & sinister views of the Representatives and the general liberties & interests of the people.”[21] Maintaining the liberties is of course the aim of the checks and balances in the separation of powers. Madison put the matter well. “If it be essential to the preservation of liberty that the [Legislative, Executive and] Judiciary powers be separate, it is essential to a maintenance of the separation, that they should be independent of each other. The Executive could not be independent of the Legislature, if dependent on the pleasure of that branch for a reappointment . . . a dependence of the Executive on the Legislature, would rending it the Executor as well as the maker of laws . . . then according to the observation of Montesquieu, tyrannical laws may be made that they may be executed in a tyrannical manner.”[22]

A second major problem with having Congress select the federal executive is that the choice could invite corruption. Morris predicted, “If the Legislature [i.e., the Congress] elect, it will be the work of intrigue, of cabal, and of faction; it will be like the election of a pope by a conclave of cardinals; real merit will rarely be the title to the appointment.”[23] According to Madison, “the candidate would intrigue with the Legislature, would derive his appointment from the predominant faction, and be apt to render his administration subservient to its views.”[24] Ingenuously, Morris flipped the argument back to the people deciding:  “The people of [the most populous] States cannot combine. If their [sic] be any combination it must be among their representatives in the Legislature.”[25]  Furthermore, “It is said the multitude will be uninformed. It is true they would be uninformed of what passed in the Legislative Conclave, if the election were to be made there; but they will not be uninformed of those great & illustrious characters which have merited their esteem & confidence.”[26] Morris could be right about a legislative conclave and yet wrong on the popular election if he did not take into account the future westward expansion of the Union across (and beyond!) the continent.

A third problem with having Congress select the president can be labeled an opportunity cost. Simply put, all the divisiveness of the contest for the high office could compromise the ability of legislators to work together on legislation. Of the “insuperable objections” to the Chief Magistrate being elected by the National Legislature,” Madison claimed that “the election of the Chief Magistrate would agitate & divide the legislature so much that the public interest would materially suffer by it. Public bodies are always apt to be thrown into contentions, but into more violent ones by such occasions than by any others.”[27] Just imagine the 2016 general election campaigns of Hillary Clinton and Donald Trump infecting Congress—what that would have done to the members of that institution!

 

Besides the popular vote and Congress, the delegates also debated whether state legislatures or governors should select the federal president. Such an approach enjoys the support of federal theory, especially as it was known at the time of the convention when federalism applied to international alliances such as the Netherlands, Switzerland, and Germany, which were had been considered empires in the Middle Ages. By the time of the convention, those polities had become nation-states equivalent to the Early Modern kingdoms such as the UK and France, and this might have been why the delegates believed putting a national government at the federal level would be workable.

 

Yet federal theory still maintained that the first level of polities in a federation selects the officials at the federal level. In the case of the U.S., this would mean that the State legislatures or executives would select the federal president, whereas the people would of course elect the State-level officials. So democracy itself would be maintained; elected State officials would select the federal president. Bringing in the bit about smaller electorates being closer to candidates for public office (i.e., at the local and State levels), the federal theory’s rationale can be understood to be the following: The people are more likely to get good people into the State-level offices, so the people can have confidence in those officials as selectors of the federal president. That the number of state officials—especially governors—is much less than the American electorate as a whole means that the problem of the large electorate is also avoided. To continue to have a federal system yet dismiss federal theory is like a person who acts as if she no longer knows who she is. Such a person is likely to get into trouble.

 

To be sure, leaving the decision to State legislatures or governors is not without pitfalls. Also, complicating the traditional federal theory is the delegates’ decision to add a directly-elected body of representatives to the federal level: The U.S. House of Representatives. The federal government would represent the people and the States—the latter being the members of the U.S. Senate, a body founded on international-law principles. As Elseworth explained, “We were partly national; partly federal. The proportional representation in the [U.S. House of Representatives] was conformable to the national principle & would secure the large States [against] the small. An equality of voices [in the U.S. Senate] was conformable to the federal principle and was necessary to secure the Small States [against] the large.”[28] By “federal” here is meant international. Hence, the equality of votes for each State in the U.S. Senate comes out of international law (e.g., alliances, and international organizations including the United Nations). This “partly national; partly federal” applied to the federal level is how the convention advanced federal theory. This advancement complicated matters in the convention. A State’s number of electors voting in the Electoral College, for example, equals the number of U.S. House representatives whose districts are within the State plus the number of federal senators, so the Electoral College was designed to take into account both bases of the federal legislature: the people and the States—or, in other words, the “partly national, partly federal” nature of the U.S. Government. Reducing the Electoral College to the nationwide popular vote would ignore the ongoing federal element. This could certainly happen if few voters are aware of the international component of the U.S. Government (e.g., a Union of semi-sovereign republics), and, moreover, of the balance therein.

 

Regarding the appointment of the National Executive by the States’ legislatures, Madison believed this option to be objectionable. “The Legislatures of the States had betrayed a strong propensity to a variety of pernicious measures. One object of the [National Legislature] was to [control] this propensity. One object of the [National] Executive, so far as it would have a negative on the laws, was to [control] the [National] Legislature, so far as it might be infected with a similar propensity. Refer the [appointment] of the [National] Executive to the State Legislatures, and this [controlling] purpose may be defeated. The Legislatures can & will act with some kind of regular plan, and will promote the [appointment] of a man who will not oppose himself to a favorite object. Should a majority of the Legislatures at the time of election have the same object, or different objects of the same kind, [the national] Executive would be rendered subservient to them.”[29] In hindsight, considering the extent of consolidation of power at the federal level, perhaps had the State legislatures selected the president the federal system itself would be more balanced today. Also, the State legislatures would not have been so left out—whereas in the E.U. they play a direct role at the federal level.

 

In the convention, Gerry “moved that the [federal] Executive be appointed by the Governours & Presidents of the States.”[30] What we moderns know as a governor is essentially a president at the State level. At the time of the convention, New Hampshire had a president. Gerry’s rationale is symmetrical, and thus interesting. “He urged the expediency of an appointment of the [federal] Executive by Electors to be chosen by the State Executives. The people of the States will then choose the 1^st branch [i.e., the U.S. House of Representatives]: The legislatures of the States the 2^nd branch of the National Legislature [i.e., the U.S. Senate, the senators of which were selected by the State legislatures until 1913], and the Executives of the States, the National Executive. This he thought would form a strong [attachment] in the States to the National System. The popular mode of electing the chief Magistrate would certainly be the worst of all.”[31] It might be added: from this perspective, having the people vote for the federal president does not make sense because it is out of step with the symmetry. The U.S. House of Representatives was intended to be the place for representative democracy at the federal level—like the European Parliament in the E.U. The U.S. Senate, like the European Council (and the Council of Ministers) was to represent the state governments, so they could protect their retained sovereign powers. It made sense to Gerry that the State executives would select the federal executive. But why through electors?

 

Madison provides the rationale: “An appointment by the State Executives, was liable among other objections to this insuperable one, that being standing bodies, they could & would be courted, and intrigued with by the Candidates, by their partizans, and by the Ministers of foreign powers.”[32] When Barak Obama resigned as a U.S Senator of Illinois to become the U.S. President, the governor of Illinois tried to sell the empty senate seat to the highest bidder. Gerry was doubtless worried that governors would sell their vote to the highest bidding candidate for president. Electors would provide some insulation, yet they too could be swayed.

 

We can see this from Williamson’s view on electors being chosen by state legislatures. “He had no great confidence in the Electors to be chosen for the special purpose. They would not be the most respectable citizens; but persons not occupied in the high offices of Govt. They would be liable to undue influence, which might the more readily be practised as some of them will probably be in appointment 6 or 8 months before the object of it comes on.”[33] Butler, on the other hand, thought “the Govt should not be made so complex & unwieldy as to disgust the States. This would be the case, if the election [should] be referred to the people. He liked best an election by Electors chosen by the Legislatures of the States.”[34] But it seems to me that the addition of electors only to elect the federal president makes the system more complex and unwieldly. The experience of the Electoral College quickly showed how easy it was for the major political parties to dominate the slates of electors per candidate; it isn’t even a question of corruption, and there is little chance that said electors could provide a check on the passions of the people.  

 

Hence Madison preferred popular election (i.e., nationwide popular vote). “The option before us then lay between an appointment by Electors chosen by the people—and an immediate appointment by the people. He thought the former mode free from many of the objections which had been urged [against] it, and greatly preferable to an appointment by the [national] Legislature. As the electors would be chosen for the occasion, would meet at once, & proceed immediately to an appointment, there would be very little opportunity for cabal, or corruption. . . . The remaining mode was an election by the people. . . With all its imperfections he liked this best.”[35] There being no political parties by the time of the convention in the U.S., Madison could not have foretold the fate of the electors at the hands of the parties, and yet he preferred election by the people anyway. Two difficulties he thought had weight. “The first arose from the disposition in the people to prefer a Citizen of their own State, and the disadvantage this [would] throw on the smaller States.”[36] The second difficulty “arose from the disproportion of qualified voters in the N. & S. States, and the disadvantages which this mode would throw on the latter.”[37] Only the first objection still exists, as candidates needing only a majority of the nationwide vote could treat many of the less-populated States as fly-over territory devoid of merit politically speaking. That those States, including their respective citizens, are also part of the Union—and more specifically part of the federal system—should give us pause as to the implications of Madison’s preference. Madison “thought too much stress was laid on the rank of the States as political societies.”[38]

 

Some delegates viewed the existing States as artificial political societies, and thus as unnecessary obstacles. Morris insisted that “State attachments, and State importance have been the bane of this Country.”[39] It is as if the States existed solely because their respective government officials did not want to lose their power. “Can we forget for whom we are forming a Government?” Wilson asked. “Is it for men, or for the imaginary beings called States?”[40] The States then existed, so in what sense would they have been imaginary? Furthermore, having territory even just on the scale of the thirteen States at the time, and more definitely across a continent, the United States must naturally contain much diversity in going from place to place. Madison pointed out that “the States were divided into different interests not by their difference in size, but by other circumstances.”[41] He points to climate, but we can add religion, political ideology, and industry as differing across large expanses of territory. It is natural, therefore, that political societies would emerge. Were there no such polities, the United States with only “one size fits all” centralized laws would suffer increasing political pressure building up from the unexpressed diversity that cannot but exist at such a scale as across (and beyond) a continent. In other words, one size does not fit all where the size of the polity is so large that there must be significant ideological/cultural differences from region to region.

 

One of the main benefits of a federal system is in fact that it enables the political expression of the diversity that is necessary in an empire-scale country or alliance. The delegates viewed the U.S. in itself as an empire. Morris referred to “the dignity and splendor of the American Empire” and even insisted that any person deserving the presidency must be such that his character is “proclaimed by fame throughout the Empire.”[42] Ghorum, too, referred to the U.S. as “the Empire.”[43] At the time, empires were known to consist of kingdoms; hence an empire is inherently diverse (i.e., the kingdoms differing from each other).  Hence the fit of federalism especially for empires.

 

Because of the diversity from “kingdom” to “kingdom,” it follows that political dynamics must exist at the empire-level government that do not exist at the State level. Reducing the selection of the federal president to nationwide popular vote effectively ignores this distinction and treats the office as if it were on the State level. To treat the U.S. itself as if it were like one of its States is to commit a category mistake in logic. Williamson insisted, for example, that “the case is different here from what it is in England; where there is a sameness of interests throughout the Kingdom.”[44] A kingdom may be homogenous, whereas an empire is of such size that internal heterogeneity exists geographically and must be accommodated. Otherwise, political pressure naturally builds up and the empire eventually splits apart.  So the injustice that some delegates, including Madison, saw in conciliating the smaller States and therefore a minority of the U.S. population by not going with the nationwide popular vote can be understood and even justified by reference to the U.S. as an empire necessarily composed of different States, each of which needed to retain some sovereignty to accommodate its distinctive features.[45] As Mason put it, “The United States will have a qualified sovereignty only. The individual States will retain a part of the Sovereignty.”[46] The Electoral College was meant in part to reflect this point, which is in turn based on the belief that the U.S. even then constituted an empire. Just because the College never worked as intended or designed does not mean the fundamentals on which it is based are faulty—that is, what the United States are (or is). To wit, Elseworth noted, “the U.S. are sovereign on their side of the line dividing the jurisdictions—the States on the other—each ought to have power to defend their respective Sovereignties.”[47] Consolidate the sovereignties at the federal level and the empire has lost its way of accommodating political pressure naturally coming from within any empire.

 

I wish to make three points in conclusion. First, the matter of whether to retain the Electoral College, which reflects popular vote at the State level, or go with a nationwide popular vote is complex. Adding to the difficulty is this very dichotomy, which is false both in the sense that popular vote and the Electoral College are mutually exclusive and that no viable alternatives exist. The debates in the Constitutional Convention attest that alternatives do exist, and that some of them may fit better the nature of a federal system than either a nationwide popular vote or the Electoral College.

 

To be sure, the debates also tell us that no alternative is salvific. Alternatives beyond those debated in 1787 may be needed. In fact, this essay is geared to fostering such creativity, which the debates can enrich and keep grounded. Perhaps one possible useful alternative—one not considered by the delegates—is the way Germany selects its federal president. All representatives in the federal Budestag are joined for the purpose by an equal number of delegates chosen by the regional governments. In this way, both the regional governments and the federal legislature have a say. Such balance is good for a federal system. This method could be adjusted, such as by having a majority of the governors of the American States and a majority of representatives of the U.S. House of Representatives both agree on a person.

 

Finally, the experience of the Electoral College tells us that compromise is not always the best option; the College never worked as intended—as a check on the passions of the people. Even just having electors specifically for the purpose of elected the federal president adds complexity that may be unnecessary. Rather than proceeding from a political compromise (or, even worse, a partisan desire for nationwide popular vote or a desire for tradition for its own sake), distinct alternatives can be formulated and debated without losing the arguments made in the Constitutional Convention. Both as regards the length of the presidential campaign “season” and the lack of a sustained focus on public policies even in the so-called “debates,” the process is clearly broken. When the nationwide popular vote favors one of the candidates and the Electoral College favors the other, the vulnerability of the method becomes particularly transparent. Once the status quo has been found to be broken, the question becomes one of which alternative should be selected. I submit that considerable attention should be placed on the formulation of such alternatives, taking account of the delegates’ respective arguments—some of which have turned out to be more valid than others—rather than dismissing them in favor of a media-driven (and constrained) public discourse that is unrooted and without (historical) context.   

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1 James Madison, Notes of Debates in the Federal Convention of 1787 Reported by James Madison (New York: W. W. Norton, 1966): 370.

2. Ibid., p. 371.

3. Ibid., p. 306.

4. Ibid., p. 327.

5. Ibid., p. 308-9.

6. Ibid., p. 368.

7. Ibid., p. 306.

8. Ibid., p. 368.

9. Ibid., p. 307.

10. Ibid., p. 309.

11. Ibid., p. 368-69.

12. Ibid., p. 327.

13. Ibid., p. 327.

14. Ibid., p. 370.

15. Ibid., p. 405.

16. Ibid., p. 307-8.

17. Ibid., p. 310.

18. Ibid., p. 307.

19. Ibid., p. 308.

20. Ibid., p. 233.

21. Ibid., p. 307.

22. Ibid., p. 311.

23. Ibid., p. 306.

24. Ibid, p. 364.

25. Ibid., p. 307-8.

26. Ibid., p. 308.

27. Ibid., p. 363.

28. Ibid., p. 218.

29. Ibid., p. 364.

30. Ibid., p. 363.

31. Ibid., p. 327.

32. Ibid., p. 364-65.

33. Ibid., p. 329.

34. Ibid., p. 366.

35. Ibid., p. 365.

36. Ibid.

37. Ibid.

38. Ibid., p. 213.

39. Ibid., p. 241.

40. Ibid., p. 221.

41. Ibid., p. 224.

42. Ibid., p. 255, 324.

43. Ibid., p. 321.

44. Ibid., p. 357.

45. Ibid., p. 239.

46. Ibid., p. 491.

47. Ibid., p. 493.