In the heat of the electoral controversy — the worst possible time to make constitutional decisions — many people, such as Senator-elect Hillary Rodham Clinton, are calling for an end to the Electoral College. Big mistake.
Someone once said, Don’t knock down a wall merely because you cannot immediately see what it’s good for. The same can be said for the Electoral College. We should keep in mind that the Founding Fathers were of somewhat better caliber than the politician you are likely to see on television, including those with presidential ambitions. The Electoral College was not an idea floating in isolation from the rest of the constitutional order bequeathed to us. It is an integral piece of a unified structure. The Founders seemed to have anticipated the architect Louis Sullivan’s motto, “Form follows function. ”
What was the function of the Constitution? To restrain the central government. The document is a device for dispersing power, because concentrated power is inimical to freedom. A related purpose was to thwart majorities that would trample individual freedom. There is an invisible line between democracy and mob rule. The main method the Founders hit on to contain central power and mob rule was federalism: the maintenance of the states as sovereign entities. Although the Constitution begins with the words, “We the People ” (to Patrick Henry’s consternation), in the late eighteenth century the union was seen as a confederation of states. “The United States ” once took a plural verb. The Bill of Rights concludes with the Tenth Amendment, which says in no uncertain terms that powers not delegated to the central government were “reserved to the States respectively, or to the people. ” That view prevailed until President Lincoln issued his bloody military dissent in 1861.
The Electoral College kept presidential elections consistent with the sovereignty of the states. Another part of the constitutional blueprint was the selection of the members of the U.S. Senate by the state legislatures. That was changed with the Seventeenth Amendment in 1913, under the delusion that anything labeled “democratic ” was good. It was a case of pulling down a wall without asking what function it served.
What could be objectionable about having direct election of senators? A lot — if you bear in mind that the Founders’ rationale was to prevent the flow of power to the center. If the state legislatures picked the senators, the states would have representatives in one house of Congress. Those senators would tend to be more protective of state (fragmented) power than direct representatives of “the people ” would be. History seems to bear this out. By the way, it is untrue that under the old system “the people ” had no say in who their senators would be. Candidates for state legislatures usually declared whom they favored for the U.S. Senate.
The powers reserved to the states became known as “states’ rights.” This is an unfortunate term, a metaphor actually. States don’t have rights. Only individuals do. The term simply refers to the powers that the states have against the central government. Thus states’ rights in principle are protections of individual rights.
To be sure, states have abused their powers and violated individual rights. They continue to do so to this day. (Try carrying a gun or becoming a barber without your state’s permission.) But the central government also violates rights and has done so with increasing ferocity over the decades. The preference for states’ rights is merely a recognition of a tradeoff: decentralized power rather than centralized power. If government becomes intolerably oppressive, it is easier to change states than to change countries. Voting with the feet should be kept as cheap as possible.
That the Framers were men of wealth and property is no valid objection to their handiwork. Private property is indispensable to freedom and prosperity — even, or especially, for those who own little. Envious mobs are too easily whipped up by opportunistic politicians to keep property safe in a democracy. That’s one reason the Framers devised the Electoral College: it was to be a buffer between unruly majorities and the rights of the smallest minority, the individual.
So let us not knock down another wall — the Electoral College. Instead, let’s restore an old wall by repealing the Seventeenth Amendment!
