The Old Electoral College Try

Regardless of how one feels about the particular result our system produced this month, the Electoral College deserves to be defended against these assaults. Far from being a vestigial organ of our system of government, it is in fact a perfect example of how the plan is supposed to operate within the body politic. Appreciating its origins serves as a good reminder of what it means to be a constitutionalist.

As so much else in our Constitution, the Electoral College is the product of compromise. James Madison’s initial proposal called for the president to be chosen by the Congress, just as most everything in his Virginia Plan revolved around the national legislature. But Madison’s legislature was to be wholly apportioned according to population, including the Senate. This was done away by the Great Compromise in 1787 between large and small states, which called for a popularly elected House and a Senate with each state given equal representation. Madison staunchly opposed this deal, which more or less converted the Senate into the dysfunctional Confederation Congress.

After the Great Compromise, Madison endeavored to constrain the Congress as much as possible, including liberating the other branches from its influence. He worried that if a Congress constructed this way were to select the president, the victor “would intrigue with the Legislature, would derive his appointment from the predominant faction, and be apt to render his administration subservient to its views.” He further opposed selection of electors by state legislatures, which had “betrayed a strong propensity to a variety of pernicious measures” under the Articles of Confederation—particularly tyrannies of the majority stomping on the rights of minorities. He thought popular election of the president, though imperfect, was the best choice available.

Madison and his allies, of course, faced opposition at every turn, and they ultimately had to cut a deal. The final compromise was designed to draw in as many delegates as possible. The national legislature would not play a direct role, and neither would the people. An alternative system—the “Electoral College” (a phrase that does not appear in the Constitution)—would be used instead. Electors would be apportioned by the total number of a state’s representatives and senators and chosen by the state legislatures, but free to select any candidate they liked.

The Electoral College, like other aspects of the American system, took on its own, surprising character once the government was placed into operation. Electors quickly came to respect the preferences of the people in their states. As the late political scientist Martin Diamond noted, “In 1796, every single elector cast a basically mandated ballot for either Adams or Jefferson, the two recognized choices of the electorate.” Four years later, the previously defeated Jeffersonians turned the tables by mobilizing voters in the swing states to vote for state legislators who would appoint friendly electors. By 1828, every state except South Carolina and Delaware allocated electors based on the popular vote.

When viewed up close, the Electoral College cannot be defended along purely rational lines. But criticizing it in that way is also nonsensical, for the particulars of the compromise reflect the spirit of the Constitution itself.

Madison summarized this spirit in Federalist 39: Ours is a system that is partly national and partly federal. It centralizes power in a national government, which derives its authority from the people of the whole United States. But only to an extent. The powers of the national government are limited by the Constitution; the states retain a measure of sovereignty and play a crucial role in the operation of the national government.

So it is with the Electoral College. The system for selecting the president is an amalgam of nationalism and federalism. It is national in the sense that electors are apportioned, in part, by population. It is federal in the sense that every state, large and small, is guaranteed at least three electors, and that state legislatures have the authority to determine how the electors are appointed.

The Electoral College is thus a microcosm of the compromise that the Constitution itself embodies. Does this system make sense? At the Convention, Hamilton had argued, not without merit, “Two Sovereignties can not co-exist within the same limits.” The national government “must swallow up the State powers. Otherwise it will be swallowed up by them.” The delegates to the convention decided differently, though many of them (Hamilton included!) did so for practical purposes. A system of blended sovereignty, such as ours, may not have made sense—except that it was the one plan that could get the requisite votes.

It should come as no surprise that the left complains so vociferously about the Electoral College. Their objections go deeper than the results of the most recent election. Since the days of Woodrow Wilson, progressives have been on a crusade to do away with the blended nature of our Constitution. What conservatives see as a prudent compromise vindicated by history, progressives see as a problem. Thus, they prefer to read Congress’s enumerated powers as a plenary grant of authority; they disdain the filibuster and other devices that grant minorities a role in the day-to-day functions of government; and they attack the Electoral College, as we have seen again the last two weeks. These complaints are all of a piece: They wish to undo the federal-national compromise that is at the very heart of our union.

Progressives may as well pound sand when it comes to the Electoral College. It is not going anywhere. By vesting the choice of electors with state legislatures, the Constitution creates an intractable collective action problem for the left. Even if they concede it would be better to have a national popular vote, a sufficient number of states will never sanction such a change, for it amounts to shifting power from themselves to, in effect, the biggest states, like California and Texas, where the most votes are located.

Still, liberal bellyaching should serve as a good reminder of the philosophical divide between liberals and conservatives. As Diamond wrote (back in 1977), “It is hard to think of a worse time than the present, when so much already tends toward excessive centralization, to strike an unnecessary blow at the federal quality of our political order.” The left wants an all-powerful national government, at the center of which sits the president, the living embodiment of the national will. Conservatives, following the guidance of the Framers, should view the president primarily as the chief magistrate of the nation. He is not to be an omnipotent tribune of the people. In our system, no single agent occupies such a rarefied position. Instead, Congress is the most reflective of the popular will, and it is charged with exercising enumerated powers. The remainder are retained by the states and the people.

The Electoral College may not make “sense,” strictly speaking—but it is sensible when viewed through this properly constitutional framework. If we are so bothered that the president-elect won fewer votes than his opponents, maybe the problem is that we have ascribed too much authority to that office. In that case, the solution is not to eliminate the Electoral College, but return the office of president to its original, and highly proscribed, limits. ¨

Jay Cost is a senior writer at The Weekly Standard.