Discussions of Constitutional originalism tend to illuminate the very different meanings that different people ascribe to that term.
I’m currently reading “We the People” by Erwin Chemerinsky, the Dean of Berkeley’s law school, and I will return to the subject of “original intent” and his (and my) take on it once I’ve finished the book. But today, I want to propose an “originalism” experiment for those of us who are critical of the current, undemocratic operation of the Electoral College.
Democracy, of course, wasn’t the point of the College. But then, neither was its use as a partisan tool advantaging a reactionary political party, which is what it has become.
There’s a pretty robust consensus that a constitutional amendment simply getting rid of the Electoral College is unlikely to succeed, at least for the foreseeable future. And since some of the College’s most ardent defenders are also proponents of “originalism a la Scalia” (a legal approach so flawed that even Scalia couldn’t consistently apply it), I think we should begin a movement to make the College operate as originally intended.
Article II, Section 1, Clause 3 of the Constitution provided the original plan by which the electors voted for president. (Electors did not originally vote for vice president. The President would be the person who received a majority of votes from the electors, and the person receiving the second most votes would become vice president. That changed with the emergence of political parties, a phenomenon necessitating the 12th Amendment.)
Individual electors were supposed to be selected by a vote of citizens on a district-by-district basis, and were supposed to exercise their independent judgment when casting their votes for President. Wikipedia shares the following quote from Alexander Hamilton, describing the Founding Fathers’ “original intent” with respect to the electors:
A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated [tasks].
Over the years, the “original intent” of the Electoral College has been ignored.
Rather than electors who have been chosen by their neighbors to exercise their informed judgment on behalf of the citizens who chose them (and presumably knew who they were, either personally or by reputation), we now have slates of faceless elector candidates pledged to vote for their parties’ respective candidates. Most states also have passed laws prohibiting so-called “faithless electors”–that is, electors who exercise independent judgment and opt to vote for a candidate who did not win that state’s popular vote.
Does anyone believe that a majority of electors possessing “information and discernment” and exercising “independent judgment” would have cast their votes for Donald Trump? (Or for that matter, that such electors would have confirmed Florida’s “hanging chad” results?)
So here’s my proposal:Â If we must keep the Electoral College, by all means let’s start a movement to assure that it operates in a manner that is consistent with the Founders’ “original intent.”
Very interesting comments from yesterday. The Dunning Kruger Effect sounds like a recapitulation of most modern psychology associated with the Ego and how egomaniacs overcompensate for their low self-esteem.
Also, for those glued to MSNBC, let me straighten you out a bit…the Blue Wave or faux resistance movement has nothing to do with Trump/Russia. Please give MSNBC a reprieve because you are getting spun up like the 35% who vote Red from their couches watching Fox News.
As for today’s argument, Scalia was owned property of the Koch brothers…he interpreted what they wanted him to. Period. His opinion on Citizens United was blatant fraud. Imagine judges using their powers to support their colleagues in power.
In order to address “original intent” of the electoral college and our constitution, don’t we have to look at the “original intent” of the founders of this country?
Was the intent to create a country ruled by the people who elect representatives to carry out their business at the next highest level of government, or was the intent to create an Oligarchy ruled by the few who couldn’t get overthrown by the many via democracy?
I know exactly what the Koch brothers believe “original intent” to mean. I also know that most of their sycophantic worshippers could care less as long as the money keeps rolling their way. I also know that the lemmings following either Oligarch-controlled political party in this country could care less about what “original intent” means.
So, what do you think the “original intent” of the Oligarchs was in framing our society considering only white male property owners could vote. đ
Rule by the few or rule by the many?
Was “we the people” just a marketing gimmick?
Another possibility – that the Electoral College vote in each state be proportional to the popular vote. The winner-take-all calculation has never seemed fair to me. If a candidate receives 49% of a state’s popular vote, then that candidate should receive nearly half the electoral vote as well. But as presently constituted, the electoral college formula disenfranchises 49% of the voters in that state. That’s a long way from one-person-one-vote and is just one reason why the electoral college so offends me.
Friends in smaller states feel the current electoral college formula protects and enhances presidential candidate attention to smaller states. It doesn’t. The calendar of primaries causes candidates to pay attention to Iowa and New Hampshire during Primary season, but after that, candidates pay attention to the larger states where polling shows the state is marginal and where such attention can make an electoral difference.
If there were no electoral college, state boundaries would become immaterial, and every person’s vote would be equal as it should be.
The founding fathers were fearful of monarchies but also feared the popular vote by a mostly uneducated and illiterate young nation that could easily be duped by demagogues who would act as monarchs and/or be corrupt or be a co-opted tool of a hostile foreign power. So they built in an electoral college layer of protection for the young republic, but their crystal ball on protective electors was clouded. From the earliest days, electors – with a precious few exceptions – have declined to replace voters’ state-by-state presidential decisions or the electoral college formula with the electors’ own presidential preferences. If there were ever an apparent time to do so, it surely would have been in 2016.
“Most states also have passed laws prohibiting so-called âfaithless electorsââthat is, electors who exercise independent judgment and opt to vote for a candidate who did not win that stateâs popular vote.”
Regarding these state laws; I have asked before if this does not DENY members of the Electoral College their Constitutional right to vote their conscience…never received an answer. Looking forward to Sheila reaching the end of the book “We The People” (which I think answers my question) and give us her follow-up thoughts on the blog.
“Article II, Section 1, Clause 3 of the Constitution provided the original plan by which the electors voted for president. (Electors did not originally vote for vice president. The President would be the person who received a majority of votes from the electors, and the person receiving the second most votes would become vice president.”
The above quoted original reason for the Electoral College gave me nightmares in this early morning light; just trying to picture Hillary Clinton and Donald Trump together in the White House is frightening and reason to change Article II, Section 1, Clause 3 of the Constitution. It is highly doubtful this would result in bipartisan leadership in today’s political climate but would result in a Civil War type administration in large part due to Citizens United. Just my thoughts on this issue of a few people forced by state law to vote for a pre-selected candidate whose supporters have more money.
This post today about the Electoral College brings to light the problem with the arguments for keeping the system.
First, let me point out that there there is a difference between “intent” and the means for bringing it about. The intent was, as pointed out, not democracy. (“Democracy, of course, wasn’t the point of the College… “) The intent was to keep control of the government in the hands of the already rich and powerful. “A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to posses the information and discernment requisite to such complicated tasks.” At the time this was written those fellow-citizens from the general mass were the only ones eligible to vote… because they were the ones who owned property. They were the educated ones, the well mannered ones, the people who hired others to empty their shit pots.
The fact that over the centuries this same system under some new rules continues to allow the same intention to be forced upon the majority does not make it fair and alright because of that arch conservative doctrine used to maintain power… “original intent”.
Original intent of the Electoral College? ….. I am getting my head around the possibility of Donald Trump as President and Hillary Clinton, Vice President, had it not been for the advent of the 12th Amendment. Saturday Night Live would be even more hilarious with enough material to last a lifetime.
Original intent in isolated context is a misnomer since it is interpretation of the intent of the founding fathers that rules the day irrespective of Hamiltonian definition and the Federalist Papers etc. I agree with those scholars who say that the Constitution as applied is what the Supreme Court says it is, and that varies with the composition of the court as time goes by as proven in decisions ranging from Dred Scott through Roe through Citizens United and in cases yet to come where the idea of “original intent” is a PR crutch.
Todd,
Here’s a shock for you. I agree with you. They gave us a republic because they didn’t trust people. Those “men of information and discernment” would always be, in their minds, white, property owning males. Almost makes it seems like the results of 2016 would have been rightly aligned with “original intent.”
Peggy – You are a comedian. I broke up when reading your reference of today with colonial times. Do you do stand up?
Speaking of Scalia-like originalism, PARADE had an interview with Clarence Thomas around 2002-3 wherein he made the case for slavery because it was allowed in the original Constitution. Typical of backward-thinking Republicans, Thomas’ absurdity captured that opinion by convenience that is ruining our nation, defiling the Constitution and preventing “We the People” from exercising democracy.
Go to nationalpopularvote.com to read about an alternative to the electoral college, a change that does not require a constitutional amendment. Indiana Senator Mark Stoops introduced SB372 to this effect.
Our Democracy has proceeded through a number of growth stages, for those that deride the original founders as a bunch of privileged ‘white men’ consider this: Greece had slavery and it was the first ‘democracy’ and ONLY MEN could vote. Rome… did you see any Women Senators? Did you see any African Senators? When we look at our beginnings and our history it must be remembered we were founded by HUMAN BEINGS in evolution. Evolution of tech, culture, understanding and mentality – it has been a process. It succeeded to a point, a point that was outlined by Benjamin Franklin in his address to the Continental Congress at the Ratification of the Consitution. WE are there – at a point where the people will only settle for corrupt government because that is all they have come to know (my paraphrase you can find it online I am sure or in a library if you want to view his words.) The whole point being to point a finger backwards it to show oneself caving to the end of the energy. To say we can’t look forward BECAUSE… Bullcookies! It is where we are now that is important – you have to consider all that has transpired – take in the gestalt – we are still growing but where we grow to comes from ideas like this one to consider something so out of date in our day and make a move to change it even in the ideal. If we stop growing – we die.
âOriginal Intentâ seems to have a solid foundation until you realize âOriginal Intentâ included the 3/5th people, i.e., the slaves in determining a states number of Federal Representatives in House. This allowed the slave owning states more members in House.
âOriginal Intentâ is like pulling out a bible and expecting it to have all the answers, rather it has numerous contradictions.
The Democratic Party for all it’s complaining about the Electoral College has their Super Delegates, who can vote for a candidate who actually lost the primary.
This system we have is not going to change.
This would be a step away from democracy, not a step toward it.
I think our problem is bigger than the Electoral College so changing just the Electoral College won’t solve our problem, which I will attempt to describe in the broadest terms as the electorate’s willingness/ability to elect incompetent-to-actually-harmful candidates to high office. Yes, I agree the Electoral College is not serving my needs to feel represented in election results, but gerrymandering is probably harming me more. Lack of good-quality information about the day-to-day work of my local, state and federal governments harms me directly and indirectly because I can neither take advantage of opportunities nor speak out against things I believe should be otherwise. Horse-race framed political coverage harped on constantly cheapens and demeans the public service component of holding public office and teaches me to see my relationship with elected officials as transactional rather than civic and community-building. So, yes, media are a part of the problem, too. And lack of proper civic education for me and my fellow citizens in general harms me because I live in a world where it is tragically difficult to even have a productive conversation about what to do about any of this. I think this larger context is why we are having trouble agreeing with Sheila and each other today.
Didn’t Connie Loftman just post a very reasonable solution that already has substantial headway or am I missing something? Perhaps if we united all who believe in democracy today behind this already organized effort we could carry it over the finish line much quicker than if we all pursue different approaches. Maybe there is strength in unity.
Go to nationalpopularvote.com and see what you think of this as a solution.
Many of my conservative friends make the argument that the purpose of the Electoral College is to prevent the more populous states from dominating over the states that have less population. But that wasn’t the purpose of the EC at all. The purpose of the EC was to be a check on democracy, that a group of electors was to exercise an independent judgment as to the person selected to be President. It was not designed to rubberstamp the popular vote whether that popular vote be the states individually or the nation as a collective.
In the Federalist Papers, the Founders even warned about foreign influence in our elections and that the EC would check that as the Electors would make sure a President was not selected who was beholden to a foreign power. Sadly, the EC did not work to prevent that this time.
I don’t share your view of Original Intent. While original intent/strict constructionism certainly has its limitations, that does not mean its not a useful and necessary guide for judges to judge.
I have never heard anyone who disagrees with Original Intent articulate a judicial philosophy that would place any limits whatsoever on how judges interpret and apply law. Their fine with unelected judges (assuming federal) enacting policies (as long as their liberal policies) through the guise of interpreting the Constitution and statutes. If that means ignoring the actual words or obvious intent behind those words, that’s fine with activist judge.
Sadly that’s one of the reason today’s federal judiciary is so politicized. Judges have been turned into superlegislators. Return judges to the role of umpires and a lot of that difference between Republican and Democrat judges goes away.
Excuse the grammatical issues in my previous post. Where is the edit button? Ugh.
I think that this article really misses the point. First of all the ONLY reason that some are even raising this question is that their candidate did not win thanks to the Electoral College. Since their candidate did not win we must abolish the Electoral College. How ridiculous! Their candidate was ALL for the Electoral College when they thought it was going their way. IF the Electoral was a bad idea then wasn’t always a bad idea or is only a bad idea when your candidate loses?
Eldon – Wrong. I have thought the electoral college was a bad idea since the Bush and Trump wins (I wasn’t around for the Tilden/Hayes fiasco). One of the fundamental tenets of democracy is majority rule. That tenet is violated when an underlying feature works to put people in office who were not elected by a majority. The solution? Rid ourselves of the underlying feature.
Paul K; “The purpose of the EC was to be a check on democracy, that a group of electors was to exercise an independent judgment as to the person selected to be President. ” A GROUP of electors exercising a REQUIRED judgement for one candidate by all members is not allowing the independent judgement of individual members of the Electoral College.
Fact: 1788 election ,and some extent, 1792 were the only “original intent ” elections. Meaning no popular vote was taken in 1788 and almost none in 1792. Electors were appointees to cast votes for the individual states and chosen by state legislatures. Choice of POTUS was twice removed from the people. Furthermore, after Washington (whom they thought would be re-elected for a lifetime) they assumed EC would merely be a nominating group because no one would be well enough known nationwide to get a majority of electors. That ensuing the House would elect POTUS one vote per state.Second and third place electoral vote getters would be pool to choose Vice President. No democracy Es or popular vote was intended by the founders. 1796 saw the progenitor of the modern Democratic Party and movement toward popular government. Congressional districts are not in the Constitution. They are inventions of states. They were, indeed, the method of electing some electors with 2 senatorial electors still elected statewide. After Andrew Jackson’s loss to J.Q.Adams in the EC while winning the popular vote in 1824. He campaigned for winner take state Electoral Vote rewarding. Except for , I believe, two states winner take all is rule. The district approach is a strong fan based concept. Democrats would do better that way in North Carolina, except unfairly gerrymandered districts nix that. Then Dems would pick up 2 electors in Indiana, but why would a Republican dominated legislature choose to allow electors chosen by districts so Dems got 2? After all, they have to win the whole state to get any now.