Most everything in the Constitution has stood the test of time, but the method for electing the president was the Founders’ biggest error.
Because of the unusual popular/electoral vote mismatch, partisans of losing Democratic candidate Hillary Clinton have called for abolising the Electoral College. Both sides have found support for their actions in the words and deeds of the Founding Fathers who created the Electoral College.
Examining the original understanding of a constitutional provision is the best way to figure out what it is, but looking to the Founders for advice on what the Electoral College should be is a mistake. Most everything in the Constitution has stood the test of time, but the method for electing the president was the Founders’ biggest error.
Because they fundamentally misunderstood the role political parties would play in our system, they created an electoral method that was completely incompatible with them. The Electoral College as originally devised was an epic failure by 1800. Amended shortly thereafter, the patched-up version has muddled along, but hardly represents any Founding Father’s clear vision of how things should be.
We must abide by its results for now because it is the law, but we should not wrap the Electoral College in the reflected glory of George Washington and James Madison. Its existence is a quirk of history based on an error. While there are good reasons not to have a nationwide popular vote, the opinions of the Founding Fathers are not among them. We should fix the system based on our knowledge, experience, and values, not on those of the men who built it wrongly to begin with.
What about Original Intent?
None of this is to say that the wisdom of the Constitution’s authors is without value. Most constitutional provisions are based on the liberal democratic ideals of the Enlightenment, ideas that still animate America’s body politic today. In the Constitution and the Bill of Rights, the Founders bequeathed to us a blueprint for an enlightened republic, one that has endured for more than two centuries. But reverence for their ideas does not mean that the Founders must be elevated to the level of prophets. They were men, and men err.
The Federalist Papers are often the best window into the minds of the Constitution’s authors. In Federalist 68, Alexander Hamilton tells us that the method for electing the president (the term “Electoral College” is not actually in the Constitution) is completely uncontroversial, “almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents.”
This is, at best, an exaggeration. Just as the anonymous Federalist authors (Hamilton, James Madison, and John Jay, who wrote under the joint pen name Publius,) defended every part of the Constitution in an effort to get the states to approve it, the Constitution’s anti-Federalist opponents attacked nearly every part of it. One anonymous author writing under the name Republicus (possibly Melancton Smith) penned a criticism of the Electoral College that is the same as those heard today: it removes the power of election from the people, where Republicus believed it should reside.
Is it then become necessary, that a free people should first resign their right of suffrage into other hands besides their own, and then, secondly, that they to whom they resign it should be compelled to choose men, whose persons, characters, manners, or principles they know nothing of? And…to intrust [sic] Congress with the final decision at last? Is it necessary, is it rational, that the sacred rights of mankind should thus dwindle down to Electors of electors, and those again electors of other electors?
Hamilton refutes this argument with the one some Clinton partisans parroted until November 8: that the electors exist to insulate the president’s election from the passions of the masses. “The choice of several, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements, than the choice of one who was himself to be the final object of the public wishes.” The electors were a conservative measure, in the original sense of the word. They are meant to ensure nothing crazy happens in the election of a president.
Looking at the world the Founders lived in, and the system they thought the Constitution would create, this makes a great deal of sense. Other than George Washington, there were no political figures of truly national importance.
The danger of a popular vote in a still-disjointed republic was not that some radical would win 60 percent of a popular vote. If that were the case, radicals would likely carry the House of Representatives and many of the state legislatures. A populace that extreme would doom the republic regardless.
No, the problem the Founding Fathers feared was that in an election between a dozen local figures, one radical might prevail with 15 percent of the vote, enough for a plurality in a nation with no nationally popular figure to stop such bad ideas. It was not that they distrusted the people—the most powerful branch of the legislature, the House, was popularly elected. They only worried that a plurality could elevate someone unworthy.
Again, in Hamilton’s words, “[t]alents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States.”
A nation without a ready supply of Washingtons would need some method of separating the wheat from the chaff. The Electoral College would narrow the field. In the presumably frequent event that no one candidate had an electoral majority, the House would choose from among the top five (in either case, the person placing second would become vice president).
This double insulation would ensure “that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.” They did not suspect that parties—which they believed injurious to a republic—would quickly arise and remain with us until the present day.
Original Effects of the Electoral College
Clinton supporters have patted themselves on the back for not only reading the Constitution, but in analyzing it though the original intent of the Founding Fathers. That’s what Scalia would have wanted, right? As usual, they miss the point. The original understanding of the Founders tells us what the law is, but their intent cannot bind us as to what the law should be. The early American experience with the Electoral College shows us why this is so.
Washington’s justly deserved nationwide popularity delayed the problems of the original Electoral College until 1796, when he declined to run for a third term. By then, the nation had divided into two political parties, the Federalists and the Democratic-Republicans, with former collaborators Hamilton and Madison finding themselves on opposite sides. Because there was no separate vote for the two offices at issue, the winner, Federalist John Adams, became president and the second-place finisher, Democratic-Republican Thomas Jefferson, became his vice president. The two were bitter rivals, the system’s first unintended result.
In 1800, Adams and Jefferson ran again as their respective parties’ standard-bearers, with an even more perverse outcome. By then, the party system was well-established, but the electoral system made things difficult. The Jeffersonians had a ticket of Jefferson for president and Aaron Burr for vice president, but they neglected to hold back one vote for Burr, which was necessary for him to finish second (the Federalists managed this, giving Adams a one-vote lead over his running mate, Charles Pickney). The result was a tie for first between Jefferson and Burr.
This error threw the election to the House, where many Federalists hoped to elect Burr instead of Jefferson, whom they detested. They remained deadlocked for 35 straight ballots until several Federalists, encouraged by Hamilton, abstained from the vote, which shifted the result to Jefferson. Only four elections in, and the Founders’ vision was clearly malfunctioning.
States and Congress Made Some Makeshift Repairs
The obvious solution was to amend the Constitution, which Congress and the states quickly did. The Twelfth Amendment became law in time for the 1804 election. It did not explicitly mention parties and nominations, but it clearly took them into account.
Now electors would vote for president and vice president separately, clearing up the major flaw of 1800. In the event there was no majority, the House would choose from among the top three finishers, rather than the five of the original text. Also, to avoid the possibility of a deadlocked House vote leaving the country without a president, the Senate would choose from among the top two vice presidential candidates, with the winner acting as president if no president would have been chosen by inauguration day.
Like a car that’s been in an accident, the Electoral College was never the same. The extensive body work of the Twelfth Amendment made things look good as new, but system still did not perform in the way the Founders had planned—as a body of learned men who would choose the best chief executive for the job. It was still a system based on a mistake, and the persistence of the parties made the Electoral College a source of problems for years to come. Those problems were not the Founders’ vision; they were the Founders’ mistake.
The cracks were showing again by 1824. Perversely, the problem this time was caused by the breakdown of parties. The demise of the Federalists after the War of 1812 left the Democratic-Republicans the only game in town, and four members of that party ran for president that year. Andrew Jackson (the sort of populist candidate who would have terrified Hamilton) led with 99 electoral votes, but fell well short of a majority. In the House, his enemies combined to swing the vote to John Quincy Adams, who had finished second.
The divide led to the creation of new parties, and the situation of having only one functioning party has never been repeated. That election also led to the first discussion of the “popular vote winner.” No one had ever been concerned with the popular vote for president, and in 1824 six states still did not even hold a popular vote, but Jackson’s partisans saw his popular vote plurality as further proof that he deserved to be president and that the Electoral College system had stolen victory from him (sound familiar?).
The division of the country into parties once more made the 1828 election a more orderly affair, and things went back to normal. Although several more instances of popular-electoral splits occurred before this year’s (1876, 1888, and 2000), the system generally meant that the same person won both votes. Each time, however, the losing party’s supporters have revised Republicus’s argument that the Electoral College deprives the people of something that is rightfully theirs.
The Original Dangers Still Apply
The Founding Fathers got a lot wrong in their vision of how we would elect presidents. Political parties formed and are not going away. As a result, electors are selected by parties and campaigns based on their reliability, not their judgment. Where they are not selected on that basis, as in the case of the 2016 Democratic electors from the state of Washington, the result is chaotic.
The faithless electors last year did not try to elect some leader of national prestige, nor did they try to follow the voters’ wishes. They tried to make a point. They threw a tantrum. In a system dominated by political parties, the best elector is one who has no judgment, only obedience.
But this does not negate the purpose of the Electoral College. In a pure popular vote system, it is easy to imagine the exact sort of chaos they feared. Look, for example, at the Republican primaries last year, in which 17 candidates ran. In a field that large, a candidate could easily win a plurality based on pre-existing fame and incendiary rhetoric. In fact, one did. Trump’s nomination was unchained democracy at work.
In a popular vote system, why would 17 candidates not also run for the White House? Now, third-party candidates have little chance because of the Electoral College. The last serious one, Ross Perot, polled 18.9 percent of the vote in 1992—and zero electoral votes. Under a system in which the Electoral College was no barrier, how many more votes would he have gained? And how many more would Gary Johnson, Jill Stein, or any even more credible candidate have received in 2016? It is easy to see how a popular vote system could result in a president being elected with 30 percent of the vote.
Other nations elect their presidents by popular vote, and the results are instructive. In France, for example, the first round of voting last time had ten candidates, with the top vote-getter receiving 28.6 percent. The French solve this problem by requiring a second round of voting when no candidate receives a majority, but even that can have perverse results, as in 2002, when voters’ only choice was between a center-right politician and a far-right (some would say fascist) activist. Those two candidates polled 19 percent and 16 percent in the first round, which means that the second-round candidates together were the choice of about 35 percent of French voters. This is no solution for America.
The Electoral College serves a purpose by narrowing our choices and making sure any successful candidate is popular across large swathes of the country. This, not the Founders’ vision, is the reason we should keep it. There is room for improvement—eliminating electors, for example, and having states certify their electoral votes directly according to the election results—but scrapping the whole system is no cure-all.
The debates of the founding generation are instructive, but they bind us only as to what the law is, not what it should be. For that, we must use our own judgment. That judgment should not preclude changes to the system, but it should include continuing to avoid popular election to the most powerful office in the world.
Photo: North Wind Picture Archives via AP Images