Bench Memos

The Perennial Publius, part 68

Hamilton defends the “mode of appointment” of the president in the relatively brief Federalist No. 68, remarking that this feature of the Constitution “has escaped without severe censure.”  What we call the “electoral college” (never called that officially in law before 1845) is probably subject to more “severe censure” than any other part of the Constitution today, so it is worth asking ourselves why it was so uncontroversial at the founding. 

Deciding how the president shall be chosen was one of the toughest snarls to unravel at the Constitutional Convention.  It was intertwined with questions of the length of the term of office, of the president’s eligibility for re-election, of the separation of powers and even of federalism (if the Congress or the state legislatures, respectively, were to make the choice).  The one option that was out of the question, for both practical and principled reasons, was a simultaneous, uniformly conducted, reliably administered, nationwide democratic plebiscite choosing a president by either majority or plurality rule of the voting public’s individual ballots.

Hamilton sets forth the case for the electoral college in terms of the ends it achieves, and they still serve as worthy ends that should guide any discussion of the system as it has evolved to the present day, and as it is challenged today by alternative proposals.  First, Hamilton says, “the sense of the people should operate” in the choice of presidents, and since a national democratic plebiscite was not in the picture, it was important not to commit the election to “any pre-established body” with its own institutional interests, such as Congress or the state legislatures.  Hence the electors who will choose the president are “chosen by the people for the special purpose,” and cannot be either federal or state legislators.  Not immediately but mediately, it must nonetheless be “the people themselves,” rather than those holding rival powers of government, who choose an executive who is to be energetic and responsible.

Second, referring the choice to a relatively small number of electors–equal to the number of members in the two houses of Congress together–will maximize the “information and discernment” in the choice of presidents, since the electors will likely be politically knowledgeable men “capable of analizing the qualities adapted to the station.”

Third, we should avoid “tumult and disorder,” as well as “cabal, intrigue and corruption.”  This end is achieved in part by the ineligibility of serving legislators and other public officials to be electors.  The electors will be more resistant to being “tampered with beforehand to prostitute their votes.”  This is also assured by the casting of electors’ ballots on the same day in their separate states, which will make it more difficult for such prostitution to be attempted.  And should anything go badly wrong in the conduct of the election, the evil will be confined to one or more particular states, rather than constituting a national crisis.

The comprehensive objective of this system is “seeing the station filled by characters pre-eminent for ability and virtue.”  Hamilton is confident enough to claim:

This process of election affords a moral certainty, that the office of president, will seldom fall to the lot of any man, who is not in an eminent degree endowed with the requisite qualifications.

I haven’t the space here to trace the democratic evolution of the electoral college in any detail.  Suffice it to say that the electors are no longer expected to employ any independent judgment (though we can imagine circumstances where that might still be necessary); that the widespread winner-take-all rule for awarding statewide blocs of votes reinforces the dominance of our two major parties (also accommodated by the Twelfth Amendment); and that the system overall judiciously blends democracy and federalism.

What I’d like to emphasize here is how sound Hamilton’s criteria of judgment remain.  Does our process of choosing presidents register the “sense of the people” in a due combination with the “information and discernment” necessary to a wise choice?  And does it, as much as is practicable in a great nation made up of states with their own electoral systems, avoid “tumult and disorder” while keeping corruption at bay?  If any alternative proposed for replacing the electoral college does not score at least as well as it does on all these criteria, it ought to be rejected.  So far I have never encountered an alternative that comes close to meeting, let alone exceeding, the achievement of the electoral college.

(For explanation of this recurring feature, see here.)

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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