Jan. 5, 2016

 

I’ve already confessed my bad attitude about the Electoral College system. And I’ve listed 10 of the potentially serious ways it can screw up our choice of national leaders. The trouble with such a list is that it implies that we have somehow been saddled with the worst system possible. It needs to be said that no system for choosing a national leader would be perfect (although I do believe that considering the anachronistic elements of our system, we could definitely do better).

All this system-bashing could also begin to imply that I have no respect or appreciation for the Framers. That’s not so. Although I don’t seem to have the normal allotment of reverence for the Constitution or its authors, I see them as very smart guys, many of them heroes of the War for Independence, who came to Philadelphia in the summer 1787 hoping to -- and trying hard to -- make things better.

And they did make things better, considering that the weak Articles of Confederation -- the framework of national government in effect before the Constitution -- was inadequate to the task of making a nation out of the then-13 states.

But the Framers had their blind spots. I won’t mention slavery for the moment, since that’s where everyone goes and since that blot has been amended out of the Constitution (and since many of the Framers, notably Ben Franklin and Alexander Hamilton, were anti-slavery).

One of the big blind spots, which seriously interfered with their thinking on many constitutional matters, is that they believed it would be possible to have national politics without political parties. This played a big role in the creation of the Electoral College system. The strange tale of how the electoral system came about puts some of its weird features into context. Once you get this context, it is at least understandable what the Framers thought they were doing.

No executive branchOne in a series of articles.

You can read the whole series here.

Under the Articles of Confederation (the U.S. national government system created during the Revolutionary War period that was replaced in 1789 by the Constitution), there was no executive branch and no president and therefore no method of choosing a chief executive officer for the whole nation.

The Framers of the Constitution saw the need for such an executive to run the beefed up new national government they were creating. But they couldn’t decide how much power to give to the new office, especially because they couldn’t figure out how the president would be chosen.

Over the course of the constitutional convention, the delegates considered having the president chosen by Congress, but they feared the interdependence between the branches that would be engendered. They considered having the governors of the states or the state legislatures choose the president, but they likewise were anxious that the chief executive of the new souped-up federal government not be overly beholden to the state governments.

Another obvious way -- at least to us -- would be to let the country vote. This was apparently discussed, but not very seriously. Often, the Framers’ decision to invent the Electoral College is interpreted as part of their mixed feelings about democracy. There is some truth to that.

The Framers were a fairly aristocratic bunch, many of whom had mixed feelings about “democracy,” which they sometimes regarded as mob rule. Although the preamble begins with “We, the people,” and guarantees a “republican form of government” to all of the states, the word “democracy” is not mentioned in the text of the Constitution.

When the Framers used the word themselves it was often a pejorative term. On the convention’s first day, delegate Edmund Randolph of Virginia warned that “none of the [state] constitutions have provided sufficient checks against democracy.” A week later, Massachusetts delegate Elbridge Gerry said “the evils we experience flow from the excess of democracy.” Father of the Constitution James Madison referred to “the inconvenience of democracy,” and Alexander Hamilton to the “imprudence” of it.

The Framers did, after all, create four power centers (president, House, Senate and Supreme Court) and only the House was to be directly elected.

But, on balance, the Framers’ decision not to let the people directly elect the president is more complicated than their aristocratic mistrust of the mob.

National election

The Framers could not picture how a national election would work. Never in the history of the world had a comparable election been conducted in a territory as large as the United States – even the 1787 version of the United States that covered just 13 eastern seaboard states from Maine to Georgia. (Maine, by the way, was then part of Massachusetts and didn’t become a separate state until 1820.)

The differences and distances between the 13 states were much bigger deals than they are today, despite the enormous growth of the United States. There was no national media by which the people of New England would come to know about the political leaders of the Deep South, or vice versa. There was no tradition of campaigning for office; in fact powerful norms banned overt office-seeking. (This business of presidential candidates running around the country begging for votes dates back roughly to the 1890s.)

Because the potential electorate was so much more state-oriented in political thinking, if everyone could just vote for a person whom they thought would make a good president, they would mostly vote for a favorite son of their own state. The favorite sons of the most populous states – Virginia, Massachusetts and Pennsylvania -- would tend to get the most votes, which made small-state delegates nervous. (There’s an irony here: Despite the Framers efforts to work around this problem, the first 10 presidential elections were all won by candidates from Virginia or Massachusetts.)

If the Framers had assumed that national political parties would present the nation with a reasonable set of choices for president, they might have come up with a less complicated, more directly democratic plan. At least the eminent constitutional law scholar Bruce Ackerman suggested as much in his book “The Failure of the Founding Fathers.”

But, as I mentioned in a previous installment of this series, the Framers had a blind spot about political parties. They disliked them, which is understandable. But they believed you could have national politics without political parties, which was just naïve and wrong.

The Framers envisioned a nation led by a certain kind of natural aristocrat who was above partisanship, like George Washington, whose noble qualities would inspire and justify trust. Everyone knew Washington would be the first president no matter what kind of selection system was used (and he remains the only president named unanimously in the Electoral College). But the Framers weren’t sure that, after Washington, any subsequent Great Man would have a comparable national reputation.

Washington owed his national reputation to his role as hero-general of the War for Independence and the Framers couldn’t assume a similar event to create a similar hero in the future. So a “Committee of Eleven” Framers worked on the side on ideas for how to choose a president while the rest of the constitutional convention pursued other matters.

'Father' of Electoral College

James Wilson of Pennsylvania is credited by many sources as the “father” of the Electoral College. Wilson was actually one of the most democratically minded of the Framers, but once it became clear that direct popular election for president was not going to be adopted, Wilson and the others came up with a plan that had no real precedent and very few subsequent imitators, but which makes some sense once you have in mind the various questions and  problems the Framers faced.

The president would be chosen indirectly, in a process that could take several steps. First the Constitution created the position of presidential “elector,” chosen by the state legislatures.

As the Committee of Eleven conceived the office of presidential elector, these were not to be people who ran for the office or announced to the public whom they would favor for president. And they certainly didn’t have in mind the modern situation where the role of the elector is pro-forma and is given to party regulars who are pledged or legally bound to support the party’s nominee. On the contrary, the Framers’ plan assigned no role to partisanship. (In fact, nowhere does the Constitution mention political parties.)

The electors were intended to be men of good reputation whose judgment would be trusted to know something --  and something more than the average voter -- about the great men of the nation who might be worthy of consideration for president. If there was a new Washington out there somewhere, the electors were supposed to be the kind of gentlemen of sufficient learning and wisdom and connections to the national scene to know about him.

The plan left it entirely up to each state legislature to decide how to choose electors (except that no member of Congress or other federal official could be an elector). This appealed to the states-righters in the convention and in the country. Any state that wanted to could allow its voters to choose the presidential electors (which appealed to those hoping for a more democratic process), or the electors could be appointed directly by the legislature. Both measures were used in the early going.

In fact, it’s worth noting that the Framers had no thought that the president would have a “mandate” from “the people.” They were looking for excellence, not popularity. Ackerman’s  “Failure” book (cited above) argues that not until the fourth presidential election -- the one in 1800 in which Thomas Jefferson defeated the incumbent president John Adams but inadvertently tied with his own running mate -- did the idea develop that a president derived some of his authority from a popular mandate.

Of course, many states soon got into the habit of holding a popular election at which the public chose the electors. In the early days, there was not a nationwide election such as we are used to today, and the states operated on their own schedules, spread out over several months, which, in the case of the choice of presidential electors, led to a kind of rolling result. (In case you thought the Constitution establishes November as the month for elections, that’s not the case.)

As I mentioned a couple of installments back, South Carolina, one of the original 13 states, didn’t hold a popular vote in connection with a presidential election until after the Civil War.

Anyway, back to the original plan. You haven’t even heard the good stuff yet.

However they might be chosen, each elector was instructed to vote for two men for president -- not one for president and one for vice president, two men -- either of whom the elector thought would make a good president. But at least one of the two had to be from a state different than the elector himself. (This is the provision that caused the Cheney problem two-plus centuries later, which I mentioned in the previous installment.)

Why? The Framers knew the loyalty that these early Americans felt to their home state grandees and they assumed that most electors would support someone from their own state and that the big-state candidates would have a significant advantage. But if there was a new Washington around, they hoped the electors from other states would push that person into the top tier of finishers.

The original plan said that if anyone was named on a majority of ballots, that person would be president. But assuming there would be no parties and no nominees, it seemed quite likely that after Washington no single candidate would be named by a majority of the electors. So the Framers decided that the top five electoral-vote recipients would all have their names forwarded to Congress and the winner would be chosen by the House of Representatives, voting on a one-state one-vote basis and with a requirement that the balloting continue until one candidate received support from an absolute majority of states.

If two candidates were each named on a majority of ballots, the one with the most votes would be president and the runner-up would be vice president. But if two men had a majority and an equal number of electoral votes, those two candidates would be offered to House for the same one-state, one-vote runoff. You might think that scenario is far-fetched, but, of course, it happened.

If the plan worked the way it was envisioned by the Framers, it would look pretty ugly to modern eyes. Because of the crazy one-state one-vote rule, a fifth-place finisher who for some reason appealed to representatives of small states could end up as president. And although the Framers worried about a system that would make the president into a creature of the Congress, their back-up mechanism would undermine that goal. The only benefit of the electoral vote would be to force the House to choose from among five candidates chosen by others (and note that the Constitution bars any member of Congress from being an elector).

But the plan never played out, not even once, after Washington retired. Bear that in mind when people defend the Electoral College system as representing the divine wisdom of the Framers. The Electoral College, as practiced today, has almost nothing in common with the system the Framers intended or envisioned. The emergence of national political parties and presidential tickets, the decision by most states to adopt a winner-take-all system for the awarding of its electoral votes and other changes of modern politics have led to a number of pretty strange results. In the next installment, I’ll go over some of those weirdnesses.

No executive branchOne in a series of articles.

You can read the whole series here.

https://www.minnpost.com/eric-black-ink/2012/10/why-constitution-s-framers-didn-t-want-us-directly-elect-president