The Real History of the Electoral College

Note: I’m reposting this from my old blog thanks to renewed efforts to get rid of the electoral college based on faulty premises.

It would take an act of enormous historical illiteracy to end my blogging hiatus. Congratulations are thus in order to the New York Times for providing me with such an example. In an editorial Jay Caruso has accurately labeled “historically inaccurate garbage,” the Times has called for the abolition of the electoral college. In the process of doing so, the Times’ editors reveal an understanding of American history which calls into question whether they’ve even taken high school-level American history classes.

The Electoral College, which is written into the Constitution, is more than just a vestige of the founding era; it is a living symbol of America’s original sin. When slavery was the law of the land, a direct popular vote would have disadvantaged the Southern states, with their large disenfranchised populations. Counting those men and women as three-fifths of a white person, as the Constitution originally did, gave the slave states more electoral votes.

Let’s address the slavery as the reason behind the electoral college argument. The New York Times links to a Time magazine article written by Akhil Reed Amar in which Amar attributes the electoral college’s existence to the advocacy of the slave states. He begins:

Some claim that the founding fathers chose the Electoral College over direct election in order to balance the interests of high-population and low-population states. But the deepest political divisions in America have always run not between big and small states, but between the north and the south, and between the coasts and the interior.

Some “claim” this because, well, it happens to be true. The divide at the constitutional convention was not between slave states and non-slave states,* but rather between large and small states. Remember, the convention kicked off with a presentation of the Virginia plan. This plan, authored in large part by James Madison but presented by Edmund Randolph, set the framework for much of the debate at the convention. Among other things, the plan proposed a bicameral legislature with representation in both houses based on population. The smaller states objected to it, and put forward their own plan. The New Jersey plan called for each state to have an equal voice in the legislature, a la the Articles of Confederation.

* As Caruso correctly notes, at the time of the convention, only a handful of states had even partially abolished slavery, and only Massachusetts had totally abolished it. That’s not to say that New York and South Carolina were equally vested in the continued propagation of the institution, but in 1787 the north-south divide on this issue was not nearly as intense as it would become in future years.

When it came to the large-small divide, there was a mixture of states. The large states included Massachusetts, Virginia, and Pennsylvania – in other words a mix of predominant slaveholding states and anti-slavery states. The small states included Connecticut, Delaware, New Jersey and Georgia – again, a mix of states with different views on slavery. Thus feelings about slavery had little to do with these respective coalitions. So already Amar is off to a poor start in actually grasping the nuances in early American history. But he’s not done.

One Founding-era argument for the Electoral College stemmed from the fact that ordinary Americans across a vast continent would lack sufficient information to choose directly and intelligently among leading presidential candidates.

This objection rang true in the 1780s, when life was far more local. But the early emergence of national presidential parties rendered the objection obsolete by linking presidential candidates to slates of local candidates and national platforms, which explained to voters who stood for what.

Even if one objects to the notion that political parties made this argument obsolete (they didn’t), it’s a bit anachronism to bring this into the debate over the electoral college, since parties didn’t actually exist at the time of the convention, and several of the Framers had rather deeply set feelings against parties (even if they would eventually spearhead the formation of those parties). So dismissing this objection when the reason for its supposed nullification didn’t yet exist is non-sensical.

Although the Philadelphia framers did not anticipate the rise of a system of national presidential parties, the 12th Amendment—proposed in 1803 and ratified a year later— was framed with such a party system in mind, in the aftermath of the election of 1800-01. In that election, two rudimentary presidential parties—Federalists led by John Adams and Republicans led by Thomas Jefferson—took shape and squared off. Jefferson ultimately prevailed, but only after an extended crisis triggered by several glitches in the Framers’ electoral machinery. In particular, Republican electors had no formal way to designate that they wanted Jefferson for president and Aaron Burr for vice president rather than vice versa. Some politicians then tried to exploit the resulting confusion.

Enter the 12th Amendment, which allowed each party to designate one candidate for president and a separate candidate for vice president. The amendment’s modifications of the electoral process transformed the Framers’ framework, enabling future presidential elections to be openly populist and partisan affairs featuring two competing tickets. It is the 12th Amendment’s Electoral College system, not the Philadelphia Framers’, that remains in place today. If the general citizenry’s lack of knowledge had been the real reason for the Electoral College, this problem was largely solved by 1800. So why wasn’t the entire Electoral College contraption scrapped at that point?

The 12th Amendment merely more carefully delineated the presidential and vice presidential election process. It did not amend the electoral college, nor did it necesssarily eliminate the basic need for the electoral college. But Amar knows the real reason the college wasn’t changed: demon slavery.

Standard civics-class accounts of the Electoral College rarely mention the real demon dooming direct national election in 1787 and 1803: slavery.

This sneering dismissal is ironic, as, if anything, slavery’s role in the formation of the constitution is over-estimated. But don’t worry, Amar has a tool at his disposal that most mere mortals who only have taken standard civics classes don’t: google. So Amar no doubt entered into his search “constitutional convention electoral college slavery” and came back with literally the only result that would have populated – a speech given by James Madison in July of 1787 during the convention.

At the Philadelphia convention, the visionary Pennsylvanian James Wilson proposed direct national election of the president. But the savvy Virginian James Madison responded that such a system would prove unacceptable to the South: “The right of suffrage was much more diffusive [i.e., extensive] in the Northern than the Southern States; and the latter could have no influence in the election on the score of Negroes.” In other words, in a direct election system, the North would outnumber the South, whose many slaves (more than half a million in all) of course could not vote. But the Electoral College—a prototype of which Madison proposed in this same speech—instead let each southern state count its slaves, albeit with a two-fifths discount, in computing its share of the overall count.

As I said, this is literally the only time during the entire convention that slavery came up in the context of the election of the executive. Unfortunately for Amar, an actual reading of the entire convention debate outside of this one quote proves that his magic bullet is not so magical.

First of all, some context is in order. Throughout much of the early part of the convention it was assumed the executive would be chosen by the legislature. It wasn’t until about the second part of the convention that the debate really kicked in over the method of selecting an executive.

There were a couple of intertwined debates. Some argued that if the executive were to be selected by the legislature, then he should not be eligible to serve more than one term. If eligible to serve more than one term, then the executive would be beholden to the legislature, and would therefore not be an independent force.

Amar is correct in pointing out that Wilson advocated a popular selection of the president, and his fellow statesman Gouverneur Morris also advocated for a selection independent of the legislature. Many other delegates – both from small and large states, as well as anti-slavery and slaveholding states – scoffed at the idea of any popular participation in the selection of the executive. Elbridge Gerry of Massachusetts insisted on more than one occasion that the general mass of the population were ill-educated and would be easily duped, and as such should have no say in the selection of the executive.

As the debate continued over several days, it was clear that the dividing line was not between slave states and non-slave states, or even large and small states (though that certainly was a part of it), but rather between individuals who had a more populist bent and those whose inclinations were more, shall we say, aristocratic. The debate was in large part a reflection of the general feeling that the mass of citizens did not have the proper qualifications and knowledge to make such a crucial decision. Even those who did not think it proper for the legislature to choose the executive did not openly advocate a popular election.

Enter James Madison. It’s odd, though understandable, that Amar focuses on Madison, as at the time he delivered his speech at the convention cited here he was closer to Wilson than most of the other delegates. The bulk of his speech was actually dedicated to expressing his opposition to the legislative method of choosing the executive. In point of fact, Madison expressed his preference for a popular vote, a preference he repeated at another point in September when the convention made its final determinations. What Amar is quoting is a small section of Madison’s address where he concedes the potential drawbacks to a popular vote. Contrary to Amar’s implication, Madison’s concern was not with how the southern states would be disadvantaged by slavery, but rather the more restrictive franchise requirements that existed in the south. Madison’s argument was that more people would be eligible to vote in the north, irrespective of slavery, thus furthering the imbalance. Madison repeated this point in September, with absolutely no mention of slavery.

Therefore the one and only convention speech Amar points to as proof of his thesis actually contradicts it, at least when read in its entirety.

And that is the entirety of Amar’s argument – this one speech, and the fact that a whole bunch of Virginians were elected president. Nevermind that those Virginians included the man who led our country to independence, the author of the Declaration of Independence, and one of the primary authors of the Constitution and the Bill of Rights. No, it’s all about slavery.

There were literally dozens and dozens of speeches made at the constitutional convention regarding the election of the executive, and one of them contained a passing reference to slavery. Yet Amar, and in turn the New York Times, uses this as justification for contending that the electoral college is completely about defending slave interests. Even if one counters that the framers were too wily to openly state their true intentions, a careful reading of the entirety of the debates shows that the delegates were motivated by completely different factors.

And of course there is one of the most elegant defenses of the electoral college ever made – Federalist 68. In it the author celebrated the electoral college for giving the people a voice in the selection of the president while providing an intermediate body of electors whose judgement would presumably be more discerning. As the author states, it’s all about preserving an orderly process:

It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the President of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief. 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. And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place.

Now who was the author of this celebrated piece? Why, none other than the bastard, son of a whore and a Scotsman. Yes, the immigrant, New Yorker, and ardent slavery opponent Alexander Hamilton. Somehow I don’t think he viewed the electoral college as a vestige of slavery. But what did he know?

Amar tries to move the goalposts by arguing that even if the electoral college at inception wasn’t about slavery, later events (which, by the way, he completely exaggerates while relying on dubious methodolgies to determine who really should have won the election of 1800) made it about slavery. Now, it’s curious that the institution which made Abraham Lincoln’s ascendancy to the presidency possible should retroactively be seen as a gatekeeper for the peculiar institution, but so be it.

Now let’s get back to the Times. The editors throw in a whole bunch of other familiar arguments about the folly of the electoral college and its unfairness. Since this is strictly an historical post I won’t get into all that, so I’ll let you read the rest of Jay Caruso’s post. I’ll just note that throwing in the slavery non sequitur is nothing more than an attempt to gloss over the weakness of the Times’s overall argument. By continually parotting the historically inaccurate line that the electoral college is all about protecting slavery – an argument repeated by equally historical illiterate leftists on twitter and other platforms – we are supposed to throw away this “ancient” and “outdated” mode of election. Unfortunately these arguments do nothing more than to reveal that those making them don’t even have the first clue about American history and the debates surrounding the constitution, thus making anything else they have to offer of dubious merit.

At the very least we can take confort in the knowledge that people like Akhil Reed Amar have little influence outside the barely-read pages of Time.

Akhil Reed Amar teaches constitutional law at Yale University. This essay borrows from his recently published book, The Constitution Today.

 To quote Dr. Hibbert, upon learning that Homer is working at a nuclear power plant: Oh Good Lord. Although this picture might be more appropriate.
facepalm
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A Civics Lesson for Our Speaker

So Nancy Pelosi recently had this to say:

When Pelosi was asked whether she considers herself equal to Trump, she said, “The Constitution does,” The New York Times reported.

Pelosi’s position as Speaker makes her the second in line for the presidency should something happen to Trump, after Vice President Pence, according to the Constitution.

There are two ways to intepret Pelosi’s comment, and neither one is flattering regarding her understanding of the constitution. The more charitable interpretation is that she means the legislative branch is co-equal to the executive. In this case, she would be underestimating her own branch’s standing. Jay Cost and Luke Thompson have a done a fantastic job on their Constitutionally Speaking podcast to debunk this long-held cliche about “co-equal” branches. If you have spent any time examining the political thought of the Framers, you’d immediately be disabused of the notion that they thought the three branches were equal. The legislative branch, as the branch representing the people, was held to be the superior branch. One can look at the powers delegated to each branch and recognize the implicit belief in legislative superiority. What the constitution expounded was not “separate but equal,” but rather the idea that each branch had defined roles, with some amount of intermingling powers as a “check” on those powers. But the idea they were equal in weight is not supported by a reading of the constitution or an understanding of the history.

If Pelosi is instead asserting that her position is equal to the presidency itself, well that’s just absurd on its face. That the Speaker comes second in the line of succession is proof not of its equality, but of its inferiority to the presidency. The Speakership is barely mentioned in the constitution other than to define how the Speaker is chosen. The Speaker of the House’s powers are largely a creation of House rules, not of the constitution itself. The Speaker cannot issue executive orders, appoint constitutional officers, make war, or any of the other myriad constitutionally defined powers of the executive. While Congress as a whole may be superior to the Executive, the Speaker of the House alone is not even remotely within the president’s orbit in terms of actual power.

We’re already off to a wonderful start in Nancy Part II.