Monthly Archives: October 2016

On the LCKeagy Facebook Page recently, I asked those who had liked the page about what topics they would like me to address. One of the two responses was, “I’d be interested to read your views on the electoral college. Is it good for modern America? Would eradicating it really provide a better representation of voters?”

This seems particularly fitting, given the current season. While I am avoiding any commitment, at this point, to digging into the specific politics of the election, I hope to shed some light on what the Electoral College is and some clarity regarding its historical and present relevancy, and I hope to offer a bit of the Framers’ own discussions around the executive and what role it would have. This is what they didn’t teach you in high school.

So what is the Electoral College? Essentially, the Electoral College is the system whereby each state chooses their electors: a group of people who are ultimately responsible for electing the president. Each state is apportioned a number of electors equal to their total number of representatives in the U.S. Congress. For example, Arkansas has two senators and four House representatives, so Arkansas sends six electors to the Electoral College.

With 538 electors attending the College, which meets and votes in December, a candidate must win 270 votes. If any candidate fails to win 270 votes, the Constitution mandates that the president will be picked by the House of Representatives.

Perhaps one of the key controversies of the Electoral College is that for all but two states (Nebraska and Maine), all electors from a state will vote one way. In other words, all six electors from Arkansas will vote for whoever wins the popular vote in Arkansas in a “winner-takes-all” system. The controversy on the state level is that, hypothetically, if 51% of voters vote for candidate X, all six Arkansas electors (or, all 55 from California) will go to the Electoral College pledged to vote for candidate X.

On the national level, this has proven particularly controversial because it allows for a candidate to win the national popular election, while losing the Electoral College election, which has happened a total of five times in U.S. history, the most recent being the Gore vs. Bush election of 2000. This possibility has merited many to call for an end to the College.

Before offering my own evaluation of the college in its modern context, I think it is particularly important to understand why it was created in the first place. This verges a bit into the broader discussion of the Constitutional Framers, which I will expound on more satisfactorily in the future.

First of all, it is important to look at the whole purpose of the office of the presidency.

There are a few key things to keep in mind about the creation of the presidency. First, Americans of the late 1700s had a deep and abiding skepticism and fear of a powerful executive who could exercise power similar to the King or Prime Minister of England. Second, there was no executive under the first United States government attempt in the Articles of Confederation, mostly for that very reason.

When the Framers met in Philadelphia in the summer of 1787 during what would quickly become the Constitutional Convention, they were faced with the task of addressing alleged problems of the Articles of Confederation, one of which was that there was no executive, and hence no enforcement branch of the Congress. Many offered suggestions such as the creation of an executive body—a small number of people who would carry out the executive function. Alexander Hamilton, in contrast, proposed a monarch-like figure, a proposal quickly dismissed by the vast majority of the delegates.

Most importantly, there was discussion about what sort of role this executive would play. Would they serve as a national symbol of greatness, as King George did in England? Would they take an understated roll of merely carrying out the tasks of Congress? What does the ‘executive function’ even mean? Many delegates, sharing their country-men’s fears of a powerful executive, were prone to keep an executive-free government, as under the Articles, but in the end, most agreed on a few key roles justifying the creation of an executive.

First, the executive would serve as a chief foreign diplomat, to work with the Senate in foreign affairs. Second, the president would serve as an arbiter over Congressional legislation; they gave him the veto power (after some arguments about it) in order to veto unconstitutional (not merely unpopular) legislation. Finally, they wanted the president to carry out any Congressional legislation, which at that time primarily related to ensuring that conflicts between states were resolved and tariffs collected. Nevertheless, the question of what the presidency would be was open-ended in some respects. Given the concern about a monarchical president and the Framer’s own fears of power, this is quite curious.

George Washington

The reason is that it was evident to everyone that George Washington, the American Cincinnatus, as he was nicknamed, would fill that role, and Washington was perhaps more trusted than any other single individual in U.S. history, especially among the Framers. Still, during the ratification debates, state conventions worried about federal power prone to abuse, were assured that federal power would be limited to the exclusively what the Constitution delegated (more discussion on this later).

After resolving as best they could the question of the executive function and make-up, the Framers faced the issue of how the executive would be chosen. In England, the executive function was delicately split between a Prime Minister chosen by Parliament, and a hereditary monarch. Some entertained the idea of a president chosen by Congress, like the Prime Minister, but of course the idea of a hereditary executive wasn’t given the light of day. Still, there were enough people concerned about the potential way that power could be abused if Congress had full say over the executive. An alternative was to put it to a popular vote on a national level, a decision which they ultimately turned down for a variety of reasons. Discussions during the Convention reveal concerns about the opportunity for popular elections to lead to the election of popular executives who might use that popularity to absorb more and abuse that power. Washington issued the same concern directly in his farewell address.

Key to understanding this whole issue, however, is the issue of federalism: the system whereby the states submitted to Congress certain powers, but maintained for themselves any powers not enumerated for Congress. There is much more that must be said here, and will be said in time, but ultimately this was reflected in the 10^th Amendment, an amendment crucial to many states in order to even secure their ratification of the Constitution.

Why is federalism important? Because ultimately the Electoral College was a compromise rooted in federalism. The vast majority of the debate in Philadelphia in 1787 was around what powers the new federal government would have (aka, what powers the states would delegate to it). Central to this was that states would ultimately retain sovereignty over the federal government. (And despite modern commentaries that ignore this issue, it is logical enough: why would states, so recently having fought for independence from a power sovereign over them, give up that sovereignty once more? I will have much more to say on this to make my case as the blog continues).

Ultimately, the Framers agreed to a separate body of delegates wholly separate from the legislature (Congress) that would chose the president. These delegates would be, in turn, chosen by the states (which at that time meant state legislatures). And this is where the idea of federalism played a key role: it was the states that would choose their electors. The executive would be a branch of the federal government created by the states, much like the Senate (prior to the 17^th Amendment, state legislatures chose Senators). It was one more important way that states would retain their sovereignty over the newly created federal government.

And despite all the ways that this doesn’t fit in the American psyche well today, this was not particularly controversial for early Americans: state legislatures were the primary representatives of the people, and the federal government, especially the Senate and the Presidency, were representatives of the state legislatures.

So what changed? I’ll address two key changes that affect how we view the presidency and the election process today.

First, during the early 19^th Century, the country became increasingly democratic. Suffrage expanded significantly, modern political parties were formed, and more and more people engaged in politics from the local level upward. The democratization of society pressured more and more state legislatures to turn over the choosing of the presidential electors to the people of their states. And as time went on, all states eventually did so. That is why we go to the polls to vote, and by daybreak know who the next president will be, weeks before the official Electoral College vote. We chose our states’ electors (practically speaking, we dictate who they will vote for).

Theodore Roosevelt

Second, the view of the presidency as a state-chosen position changed radically with Theodore Roosevelt, who more than probably any other president propagated that the president was the unique representative of all Americans. This is certainly how the president is viewed today, and has been ever since Teddy Roosevelt. And with that, the demand that the president be chosen by a national popular vote has grown, for obvious reasons.

So I’ll wrap up this rather long blog with a few key takeaways.

First, the expectations on the presidency have changed dramatically since the role was created in 1787.

Second, the presidential election system, so long as it is accomplished through the Electoral College system, is a state-by-state election process, not a national election. And this is key to remember. Voters in each state decide who that state choses for a president. Instead of at least 51% of the national vote “taking all,” at least 51% of each state vote “takes all” for that state (again, with the exception of Nebraska and Maine, both of which split their votes proportionally).

And this is what it comes down to. The federal system is all but withered today. And yes, I will have those who debate me on this, but originally federalism meant that states are ultimately sovereign and delegate certain powers to the federal government. Though there has been an uptick in the last couple decades in slight favor of states’ rights in some areas, there is little left of the Framers’ original view of federalism. (As for my part, I will argue in favor of an originalist perspective on federalism. If you have not done so, I highly recommend listening to Tom Woods’s speech on this issue and nullification here.)

But the Electoral College remains.

Should it remain? I’ll leave that to you to decide. Should we have a president who is chosen by popular vote as the unique representative of “all” American people, as Theodore Roosevelt proclaimed? Or a president who, at least in principle, is the choice of the individual and, again, in principle, sovereign states by whatever means each state chooses to assign its delegates.

And in the end, either way you stand on those questions doesn’t really make much practical difference. The Electoral College exists primarily on tradition and principle. Is that tradition and principle worth keeping it? I would argue that it is the principle that is more important than the Electoral College system itself.

Yes, I am well aware I have deviated from the typical approach to this discussion, which usually centers around how its “unfair” if the president wins the Electoral vote, but loses the popular vote, or how its “unfair” that 48 states have a “winner-takes-all” approach to choosing their delegates. Or the common, “then your vote doesn’t matter” argument for states that traditionally swing an expected way on elections. Certainly, in practical terms, it draws unique attention to a handful of swing states during each presidential election cycle.

So back to the original Facebook post: Is it good for modern America? I don’t have a clear answer. There may be a better system, a system that better preserves liberty. But this is what I do know. The broader issue of federalism is what is most important. The more power states lose, and more power the central government gathers to itself, the more our liberties are at risk. In the end, the Electoral College, while it may have been a compromise and an experiment, is still, in principle and theory, one of the last vestiges of federalism as intended by the Framers.

(For an even more in-depth analysis, read this article by Kevin Gutzman, one of my primary sources.)