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 1st branch [i.e., the
U.S. House of Representatives]: The legislatures of the States the 2nd
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.
1 James Madison, Notes of Debates in the
Federal Convention of 1787 Reported by James Madison (New York: W. W.
Norton, 1966): 370.
