Why the Electoral College – Part III

February 26, 2016 Frank Kuchar

As I outlined in Part II of this series, the electoral college was an ingenious compromise designed to preserve both the concepts of federalism and republicanism in the selection process for our president and vice-president. The intent was also to avoid the polarization by political parties by having non-committed electors select the best qualified individuals for these two offices. Unfortunately, this ideal only lasted for the first few election cycles.

It didn’t take long before political parties arose, and with them the bitter factionalism they tend to produce. This became evident in the election of 1800 in which the incumbent, John Adams (representing the Federalist Party) was opposed and defeated by Thomas Jefferson (representing the Democratic-Republican Party). The Federalists favored a strong central government whereas the Democratic-Republican Party favored a smaller, limited central government with the states holding most of the governmental power (sound familiar?).

By 1836 the two party system was well-established and several trends towards the system we see today had begun to emerge. One was the popular selection of the electors by all states (with the exception of South Carolina). With the move to state-wide popular vote for the electors came the “winner-take-all” approach to awarding all of the state’s electors to the candidate who won the popular vote. In 1831 the first truly “third party”, the Anti-Masonic Party, held the first presidential nominating convention in Baltimore where they selected not only their candidate for president, but also his “running mate” for the office of vice-president. The other major parties eventually followed suit, and from there it evolved to where the electors became tied to the candidates of their parties. This became more ingrained over the years until we finally ended up with our current method in the electoral selection process.

The uproar we’ve heard over the past couple of elections regarding one candidate winning the popular vote and losing the presidency in the electoral college is nothing new. There have been three instances in our history in which this has happened. In 1876 Democrat Samuel Tilden won the popular vote but lost the electoral vote to Republican Rutherford Hayes. In 1888, again the Democrat candidate, Grover Cleveland, won the popular vote yet lost to Republican Benjamin Harrison in the electoral college. Then in 2000 Democrat Al Gore lost the presidency to Republican George W. Bush in the electoral vote despite having a narrow margin in the popular vote. There have been other instances in which the winner in both categories had a narrow majority in the popular vote but a significant margin in the electoral college.

So, controversy over our process is nothing new. Next week we’ll examine the advantages of the electoral college system over that of direct popular vote.

-February 26, 2016

Why the Electoral College – Part II

February 19, 2016 Frank Kuchar

In Part I of this series I pointed out that although some of the founders felt the people could be trusted in the direct election of the executive officers, most did not. During the Constitutional Convention of 1787, many ideas were floated as to how to effect their election.

One suggestion was to have the Congress select the president and vice-president. This was dismissed on the grounds that it would make the president beholden to the legislature for his appointment and thereby failed the principle of “separation of powers.”

Another suggestion was to have the executives of the states select the president. It was argued that they would be more acquainted with the traits a “chief executive” would need as they themselves functioned to a lesser degree in that same capacity. This was rejected as it failed the test of “republicanism” – i.e., the people would be too far removed from the process.

The final compromise that we find in Article II Section 1 of the Constitution was to have the state legislatures select “electors” from among their citizens who would in turn vote for the president and vice-president. It was left up to the states to determine the method by which their electors would be chosen, including allowing the people to select them by popular vote (which five states – New Hampshire, Virginia, Delaware, Maryland and Pennsylvania – did in the very first election in which George Washington was chosen President).

This compromise preserved both the concepts of “federalism” (the states choosing the electors) and “republicanism” (the people either voting for the electors directly or having their elected state representatives appoint the electors). By moving the people one step from the selection process it helped alleviate the fear of Elbridge Gerry, a delegate from Massachusetts, which he had expressed during the Constitutional Convention in 1787 that “The people…would be misled by a few designing men.”

These electors were not like those appointed to this task today. They were individuals chosen based upon their maturity and wisdom in the affairs of the nation who would be of a character whose interest was what was best for the country. They were to be individuals who would have the ability to vet those whom they felt were noble candidates for these offices and select the one they felt was best qualified.

Consequently these electors were not part of a political party’s “slate of electors”, nor were they “pledged” to a particular candidate as they are today. They were to be completely independent and thus able to make a choice based upon the qualifications of those considered for the executive offices.

In Part III I’ll examine how we went from this ideal to what we have today.

Why the Electoral College – Part I

February 12, 2016February 12, 2016 Frank Kuchar

(I have been asked about the movement in some states for a direct election of the office of president and vice-president instead of through the electoral college. This is part I of a four part series I published in 2012 explaining why we do not elect those offices by direct election, how the system is supposed to work and how it has changed.)

Every presidential election we hear the question raised as to why we have such a strange way of selecting our president and vice-president. Many ask why we can’t just elect them via direct popular vote as we do our other elected officials, since that would be more “democratic.” Such a move to change our process to a national popular vote demonstrates a lack of understanding of both the kind of government we are supposed to be and the history behind the establishment of our Constitution. Because of this dearth of understanding among so many of our fellow citizens, it will take more than just one article for me to offer a defense of our electoral system.

The most glaring misunderstanding of our election system is demonstrated when people allege that it is not “democratic.” We are not a democracy, and those who talk about democracy fail to have an adequate understanding of it. Our founders did not establish a democracy – they gave us, in the words of Benjamin Franklin, a republic. The uniting of the concept of republicanism and federalism formed the unique basis for the new government established by the Constitution. It is this basis that lies at the heart of our unique method of electing the top officials in the executive branch.

There were a number of alternatives proposed during the debates in the Constitutional Convention of 1787 as to the best method to select a president and vice-president. There were some who did favor direct election by the people as they placed a great amount of faith in the people being astute enough to vet those for whom they would cast their vote. There were others, however, who held just the opposite view. In his notes on the debates, James Madison recorded that Elbridge Gerry, a delegate from Massachusetts, made this observation regarding the ability of the people to make such a judgment: “He was against a popular election. The people are uninformed, and would be misled by a few designing men.” Of those who held these two opposing views, I think we can safely say that Mr. Gerry got it right.

Consider the ignorance of so many voters as evidenced in many of the “man on the street” interviews on the internet and television and we can see how our current process is abysmal. As Theodore Roosevelt once said, “A vote is like a rifle: its usefulness depends upon the character of the user.” Next week I’ll turn to the reason why our system is grounded in the concepts of republicanism and federalism.

-February 12, 2016

Why the 9th Amendment?

February 5, 2016February 5, 2016 Frank Kuchar

When you read the ninth and tenth amendments, at first blush the ninth seems to be irrelevant because the same point appears to be repeated in the ending of the tenth. However, upon closer examination, the ninth is as important, if not more so, than the tenth.

These two amendments read, in order:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’

To understand why the ninth was inserted we need to return to the debate over whether or not a bill of rights was necessary. Alexander Hamilton argued against the wisdom of having a bill of rights in Federalist 84:

“It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the Petition of Right assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations.”

As you can see, Hamilton’s argument is one of exclusion or silence. To state that the government cannot do something implies that without that prohibition it would be authorized or empowered to do so. But, if there is no prohibition stated, it is understood that no authority or power in that area exists to begin with. However, the Anti-Federalists opposed the ratification of the Constitution unless there was a guarantee that a bill of rights would be added to the newly minted constitution upon the convening of the first congress, and so in that first congress James Madison pressed the Federalists who controlled it to follow through on that guarantee and send to the states for ratification what we now know as our Bill of Rights.

This brings us to the language of the amendment in question. The ninth amendment addresses “rights”, whereas the tenth deals with the delegation of “powers” – two very different concepts. The purpose of the ninth amendment is to shore up what Hamilton warned of in his Federalist essay, namely that just because not every right was specifically enumerated within the Constitution, it did not mean that the people had forfeited them to the control of the central government. It is a “catch-all” amendment prohibiting the general government from assuming control over rights which the people had never intended to delegate to it.

Since the ninth amendment addresses “rights” over which no man or entity has the leeway to usurp, it is even more critical than the tenth. We hear much trumpeting of the tenth amendment today, and rightfully so, but it is imperative that we also understand the even greater significance of the ninth and that we, the people, reassert our claim to it in the face of a government which violates it at every turn.

-February 5, 2016