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September 2015 Policy Study, Number 15-8

   

The Electoral College: Explaining a Constitutional Mystery and Defending American Constitutionalism

   

The Electoral College and the Constitution:

   

 

Perhaps one common mistake which leads many to dismiss the Electoral College is the fact that the term “democracy” is overly used in our political vocabulary. Most Americans refer to the United States as a democracy, but the Founding Fathers rejected democracy in favor of a republican form of government based on a written Constitution. The Founding Fathers had a pessimistic view of human nature. Many of the Founding Fathers understood the danger of democracy based on Western Civilization. As Bruce Thornton, a Research Fellow at the Hoover Institution, wrote:

 

Given that colonial America’s schools were steeped in the literature, history, and philosophy of ancient Greece and Rome, Americans of the late eighteenth century were intimately familiar with the follies and failures of Athenian democracy, as well as the two millennia of commentary on them.[50]

 

A republic, which is the basis of our political system, consists where “sovereign power rests in the people as a whole but is exercised by representatives chosen by a popular vote.”[51] As Gary L. Gregg II wrote in Securing Democracy: Why We Have an Electoral College:

 

The Founders were republicans. They were dedicated to a political system that would be based on ‘the consent of the governed’ and that would be represented in form and function. The men that held the power to make decisions for society would be representatives of the people that were somehow accountable to them and would not be likely to threaten their liberties or those of their freely chosen state and local governments.[52]

 

The Constitution also provides protections for both the majority and the minority. Through the constitutional system of checks and balances, separation of powers, federalism, and the Bill of Rights, liberties are protected through the Constitution. The people are sovereign under the Constitution and the principle of majoritarianism. Matthew Spalding, a constitutional scholar, states:

 

In the American theory of constitutional government, sovereignty exists in the people, who in turn delegate certain powers to the government. Government, in order to be legitimate, must reflect the consent of the governed. In this sense, the United States is a popular form of government. But popular governments can vary as to the way in which they reflect democratic opinion. Strictly speaking, a pure democracy is a system by which the people rule directly, voting on each law and policy.[53]

 

As Spalding argues, in our republican form of government “lawmaking is done not by the people themselves, but by individuals they have chosen to represent them in the government.”[54] It is vital to understand why the Founding Fathers rejected the idea of a pure democracy, as Spalding explains:

 

The American Founders were wary of the passions of democracy, and wanted to encourage a politics of settled and thoughtful public opinion. They designed a form of popular government in which the people govern — equal rights means popular consent — but their consent is reflected through a representative process, under rules and regulations set down by a written Constitution, which allows for majority rule at the same time that it protects minority rights.[55]

 

“The Founders sought to correct the historic problem of majority tyranny while remaining true to the principle of popular government,” argued Spalding.[56]  In regard to the Electoral College, it protects and provides equality in the election process. As Robert A. Levy, Chairman of the Cato Institute and a constitutional scholar, wrote:

 

The Framers meticulously crafted an electoral model that reduced sectionalism and reinforced minority rights. Instead, popular voting would favor regions with higher voter density and large states over small. ‘One man, one vote’ may be the rallying cry of a democracy; but that is not our form of governance.[57]

 

The Electoral College is fundamental because it protects both the people, and the states and replacing it with a direct popular vote or making it more “democratic” would result in extreme majoritarianism. As Spalding argues:

 

On the other hand, consent does not mean mere majoritarianism — that anything and everything the majority demands is right. Law making by consent is not the simple translating of majority will into public policy but is the product of settled reasoning consistent with a proper understanding of the first principles of liberty…Just because government is based on consent does not mean that it is incapable of violating equal rights. In 1934, for instance, 90 percent of German citizens officially approved Adolf Hilter as Fuhrer of Germany. To itself be legitimate, popular consent must understand and respect the rights and responsibilities of constitutional government, often despite the passions of the temporary majority.[58]

 

“We are bound to accept the rule of the majority, but consent is always limited by the higher principle that the rights of all must be equally respected and enforced,” noted Spalding.[59] In other words, the Founding Fathers, through the Constitution, “sought to correct the historic problem of majority tyranny while remaining true to the principle of popular government.”[60] The Bill of Rights was also designed to protect against majoritarian rule:

 

We should not forget that one of the major purposes of the Bill of Rights is to protect us from majoritarian rule — otherwise, popular democracy could abolish freedom of religion, limit political speech, or restrict the ability to assemble and associate with unfavored minorities.[61]

 

The Electoral College often is under fire for being “antidemocratic” by critics who believe that the President of the United States should be elected by a popular vote. Critics of the Electoral College and those who do not understand how it works fail to take into consideration that the Electoral College is an essential part of our constitutional system. As Tara Ross wrote:

 

The Founders deemed the Electoral College to be one of the best features of the Constitution that they created. I imagine they would consider it a great pity that most Americans now believe the Electoral College to be an anachronism, an institution that serves no real purpose…The world has changed since that summer in Philadelphia [Constitutional Convention of 1787] when the Founders drafted a new form of government. As a result, the Electoral College does not operate exactly as anticipated. It does, however, still serve the purposes that it was intended to serve.[62]

 

It is important to not only understand the Electoral College, but also to place it within the context of the Constitution.

 

The Constitution is a written document that limits the powers of the federal government. The Constitution limits government and protects liberty through the doctrines of checks and balances, separation of powers, and federalism. It is also important to keep in mind that under the Constitution the people are sovereign. “The people delegate to government only so much power as they think it prudent for government to exercise; they reserve to themselves all the powers and rights that are not expressly granted to the federal or state or local governments,” wrote Russell Kirk in The American Cause.[63] James Madison, the chief architect of the Constitution and who is considered the “Father of the Constitution,” stated in Federalist Paper 45:

 

The powers delegated by the proposed constitution to the federal government are few and defined. Those which remain in the state governments, are numerous and indefinite.[64]

 

Madison in Federalist 45 was explaining the principle of federalism. This principle is further illustrated within the Constitution through the Tenth Amendment, which states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”[65]

 

In The Importance of the Electoral College, Dr. George Grant summarized the principles of the Constitution:

 

Drawing on great wealth of sage knowledge and practical experience, the Founding Fathers of the United States codified in their national charter a host of carefully wrought provisions designed to preserve the freedoms and liberties of the people. They designed a government with a series of interlocking checks and balances — not only were the executive, legislative, and judicial branches given spheres of authority over which the others could not interfere, localities, regions, states, and even individuals were afforded certain hedges against the imposition of tyranny. Powers were carefully separated. Authorities were circumspectly delineated. Rights were vigilantly secured.[66]

 

Although with the formation of the Constitution the Founding Fathers’ created a stronger central government, it must be understood that the states have a vital role to play through federalism. Today, federalism has been undermined by the growth and power of the federal government, but this was not the original intent of the Framers. As Gerard V. Bradley, a constitutional scholar, wrote:

 

First, the Constitution obviously establishes a federal system in which the national government has limited, enumerated powers. This federal power lacks plenary government authority. That is reserved to the states. The state constitutions set up governments with authority to legislate on family structure, religion, education, public morals — all the glue that holds civil society together. Here are governments fully in charge of an anchor: state authorities that the national Constitution presupposes, depends upon, and protects in many ways (including the guarantee to each of a ‘republican form of government’) and without which there could be no national government.[67]

 

“After all, without the states there could be no Senators, no Electoral College, no election of House Members,” argues Bradley.[68] The Electoral College, just as with other aspects of the Constitution, was an object of compromise. Clearly the Founding Fathers did not agree and in fact rejected the idea of not only a multiple-executive, but electing the executive based on a popular vote. The Electoral College was a unique compromise, which preserves not only a system of equality, but also symbolizes the idea of federalism. As President Ronald Reagan stated:

 

The very basis for our freedom is that we are a Federation of Sovereign States. Our Constitution recognizes that certain rights belong to the states and cannot be infringed upon by the National government. This is the guaranty that small states or rural, sparsely populated areas will have a proportionate voice in national affairs. Those who want to do away with the Electoral College really mean they want the President elected in a national referendum with no reference as to how each state votes. Thus a half dozen rural states could show a majority for one candidate and be out-voted by one big industrial state opting for his opponent.[69]

 

The Great Compromise at the Constitutional Convention of 1787 is another example to illustrate President Reagan’s point. When the Constitutional Convention convened, one of the major debates was between large and small states over representation. The compromise which was hammered out was a balance between the large and small states. The House of Representatives would be based upon population and elected directly by the people, and the result would be larger states having more representatives in the House. In order to balance and protect the small states, the United States Senate would have equal representation — each state having two Senators that would be elected by the state Legislatures. Today, because of the 17th Amendment to the Constitution, Senators are elected directly by the people. Even though large states had an advantage in the House, small states could counter that with equal representation in the Senate, and as already mentioned, the Framers implemented a system of separation of powers and checks and balances into the constitutional system to prevent tyranny of the majority. As Hans A. von Spakovsky states:

 

In creating the basic architecture of American government, the Founders struggled to satisfy each state’s demand for greater representation while attempting to balance popular sovereignty against the risk posed to the minority from majoritarian rule.[70]

 

The Electoral College works in a similar way that protects smaller states and forces more competition in the campaign process. If we elected the President by a direct popular vote, then as Reagan stated large states would easily dominate over small states. Opponents of the Electoral College will argue that this is not fair, but what do they say about the Senate? As George F. Will asks:

 

Do critics want to abolish the Senate as well? Delaware, the least populous state in 1789, was understandably the first to ratify the Constitution with its equal representation of states in the Senate: Virginia, the most populous, had eleven times more voters. Today Wyoming’s Senators’ votes can cancel those of California’s Senators, who represent sixty-nine times more people. If that offends you, so does America’s constitutional federalism. The electoral-vote system, like the Constitution it serves, was not devised by, and should not be revised by simpleminded majoritarians.[71]

 

Tara Ross agrees with George F. Will when she wrote:

 

To be logically consistent, Electoral College opponents should criticize the other federalist features of our government as they have the Electoral College. After all, disparaging the Electoral College as ‘unfair’ requires that similar criticisms be directed at the Senate or at other, similar features of our government that were created as protections for small states. No one, however, is seriously questioning the right of the Senate to exist. The Electoral College is simply one of several constitutional devices created by the Framers to protect the diverse interests of the states.[72]

 

Robert A. Levy argues correctly that “we are a constitutional republic; political outcomes are not always determined by majority rule…For example, it takes two-thirds of Congress to override presidential vetoes, approve treaties, impeach a President, or expel a member of Congress.”[73]

 

The Electoral College is clearly rooted within our constitutional framework and must be preserved. As Tara Ross wrote:

 

America's election systems have operated smoothly for more than 200 years because the Electoral College accomplishes its intended purposes. America's presidential election process preserves federalism, prevents chaos, grants definitive electoral outcomes, and prevents tyrannical or unreasonable rule. The Founding Fathers created a stable, well-planned and carefully designed system — and it works. Past elections, even the elections of Presidents who lost the popular vote, are testaments to the ingenuity of the Founding Fathers. In each case, the victor was able to succeed only because his opponent did not build the national coalition that is required by the Electoral College. In each case, smaller states were protected from their larger neighbors. In each case, the presidential election system functioned effectively to give the country a President with broad-based support. Alexander Hamilton was right when he described the Electoral College in The Federalist No. 68. Perhaps the Electoral College is imperfect — but a perfect solution is doubtless unachievable. Nevertheless, the presidential election process devised by the Framers is certainly excellent.[74]

 

Perhaps it is best to close by considering the thoughts of the late Senator Daniel Patrick Moynihan, who although not a conservative, understood the importance of the Electoral College. Moynihan argued that abolishing the Electoral College would be “the most radical transformation in our political system.”[75] “We have a republic. It has endured. We trifle with its arrangement at a risk not only to the future of that republic, but, most assuredly, to the reputation of this generation of political men and women,” stated Moynihan.[76]

 

There are a plethora of political and cultural problems facing the United States today. Much of the focus is on economic and foreign policy-related questions, but as a nation we must be prepared to defend our Constitution. Already we have witnessed a great deterioration of constitutional limited government, and defending the Electoral College is vital. Defending the Electoral College will require citizens to renew a spirit of constitutionalism within the country. As political philosopher Claes G. Ryn wrote:

 

Many defenders of the old American Constitution seem to think that all that would be needed in order to save the Constitution would be to persuade Americans of the correct interpretation of the Framers’ intent. These ‘constitutionalists’ live in a world of abstractions, a dreamworld of their own. The argument here advanced should have demonstrated that there is only one way to revive American constitutionalism, and that is for Americans, from leaders to people in general, to revive or freshly create something like the older type of morality and to start living differently. Should that not be a likely development, the future of American constitutionalism is bleak.[77]

 

Eliminating or reforming the Electoral College is a mistake, and it must be defended. As the late Senator Barry M. Goldwater warned: “We can be conquered by bombs or by subversion; but we can also be conquered by neglect — by ignoring the Constitution and disregarding the principles of limited government.”[78]

 

   

 

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