The Electoral College: An Internet Age Dinosaur (Part 4)

THE ELECTORAL COLLEGE: AN INTERNET AGE DINOSAUR (PART 4)

Faced with persuasive evidence that the Electoral College is remarkably anti-democratic and even dangerous to America in today’s world, its supporters make two primary arguments in its defense. [Note 1] They argue that it should be preserved because it protects the interests of the states, particularly small states, as distinct political entities by giving them added influence in presidential elections (and thus in national policy). And they argue that it protects limited government. Both claims are badly flawed.

Do States Need Electoral College Protection?

Whether it was desirable to treat states as entities deserving special constitutional protection was hotly debated when the Electoral College was created in 1787. Most large state delegates in Philadelphia—and here we can include illustrious Founders such as Madison, Wilson, Hamilton, Franklin, King, and Washington—thought that there was no legitimate reason whatsoever to give states special political advantages in the national government without regard to their population size or wealth merely because they were states. Quite to the contrary, delegates such as James Madison adamantly believed that proportional representation of states based on wealth or population should be the rule for both Houses of Congress in a truly republican government.

Nor was this a new view in 1787. As early as 1776, John Adams of Massachusetts said during Congressional debate over representation in the Confederation that “the individuality of colonies is a mere sound.” [Note 2] By this Adams meant that it was profoundly erroneous to treat colonies as sovereign and equal political entities in the process of building a nation. Yet small states were able to force the 1787 Philadelphia Convention to protect their corporate interests in a variety of ways, such as equal state voting in the Senate and the Electoral College. But this was merely powerful testimony to their bargaining leverage given the urgent political and military need for consensus Convention members believed existed, not proof of the merits of their position. [Note 3]

But continuing a two-century old expedient compromise that gave states as states special influence in Presidential elections is no longer necessary or desirable today. We do not elect Presidents to represent states; they are elected to represent the nation and all of its people. State power in presidential elections cannot be enhanced for some states without prejudicing the interests of the nation, of other states, and of individual voters; it is a zero-sum game (i.e., a game in which when someone wins, someone else must lose, as in dividing up a cake). Other features of the Constitution adequately protect federalism and state interests, without the serious negative side-effects created by the Electoral College. Both the Senate and the Supreme Court have historically been both willing and able to protect state powers and prerogatives under the Constitution. The Court’s federalism decisions in recent years confirm this. For example, look at the Court’s decision in the Affordable Care Act case, in which the Court majority held that Congress had no power to force states to expand Medicaid against their will. [Note 4]

Can Protecting Limited Government Justify the Electoral College?

The argument that the Electoral College is needed to protect limited government is also deeply flawed. Of course, many people think that “limited government” (which often means different things to different people) is desirable. [Note 5] And it is quite possible that the Electoral College effectively supports that view, because its operation exaggerates the political influence of areas of the country (often, small “red” states) where a majority of residents prefer more limited government. But this is actually further proof that the Electoral College is inconsistent with the underlying spirit of the Constitution itself, not an argument in favor of the Electoral College.

America’s history over the past century shows that most Americans reject the view that the Constitution’s purpose is to cast in concrete a particular set of social and economic relationships. Instead, Americans periodically have decided that government’s role in American life should be changed or expanded as social conditions change. For example, Congress did this in adopting major New Deal legislation such as the Social Security Act, and labor and stock market regulation. Since the New Deal, the Supreme Court has generally accepted such changes, except where they clearly violated constitutional rights or structural principles. In the process, the Court has essentially agreed with Justice Holmes’ famous dissenting view, in a case that struck down New York state protective social legislation, that:

…[A] constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States. [Note 6]

Instead, as Holmes saw, the Constitution’s primary purpose is to provide a fair and orderly mechanism through which the people, the ultimate source of political power and legitimacy in our democracy, may peacefully decide (through representatives) that fundamental social or economic changes are needed and put them into effect. [Note 7] In contrast, to argue that the Electoral College is needed because it effectively protects limited government by exaggerating its supporters’ influence is in reality to argue that it is desirable to prevent constitutionally permissible political changes sought by the majority of the people by artificially blocking or distorting the operation of their will. This is inconsistent with the underlying spirit of the Constitution and especially with our nation’s pressing need for peaceful but effective change to improve our government, so this argument for the Electoral College must be rejected. If supporters of limited government are going to prevail, they need to do it through the democratic process, not through the Electoral College.

In deciding whether to continue the Electoral College, therefore, it is important to weigh the evidence of its serious disadvantages only against real benefits to the nation as a whole, not against the supposed benefits to states or to supporters of limited government.

NOTES

1. For this evidence, see Parts 1-3 of this series of posts.
2. Adams in Thomas Jefferson, Writings (New York: Library of America, 1984), 29.
3. Though, unlike Adams, various individuals then did believe that states should be treated as sovereigns, this is beside the point here. We can also disregard for present purposes the fact that the Electoral College politically strengthened slavery during the early American republic.
4. National Federation of Independent Business v. Sebelius, Secretary of Health and Human Services, 567 U.S. ___ (June 28, 2012).
5. Observations about the role of government here are not intended to imply any view on the desirability (or lack of desirability) of government’s role in any part of national life–instead, they concern only how such views relate to the structure of the Constitution.
6. Lochner v. New York, 198 U.S. 45 (1905), at 198 U.S. 75-76 (Holmes, J., dissenting).
7. Justice Holmes’ extensive service as a soldier in the Civil War made him exceptionally well-qualified to advance a view of the Constitution conducive to peaceful social change. For Holmes’ moving reflections on the Civil War, see his May 30, 1884, Memorial Day Address, “In Our Youth Our Hearts Were Touched with Fire,” http://people.virginia.edu/~mmd5f/memorial.htm.

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