Feb. 22nd, 2017

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I was asked to comment on this article about the Electoral College.

First I should add that most of my understanding of the Constitution’s intent probably comes from the Federalist Papers. Prof. Finkelman’s quotes all appear to be from Madison’s reports of the debates, which I’ve never read end to end, though I’ve certainly read a lot of works citing them.

Here is what I wrote directly in comment about the article:

That’s a very interesting article, but I’m not sure about accepting all of the arguments. It is, of course, dangerous for an amateur like myself to dispute with an expert when I haven’t even done any research directly in response to this, but I don’t have time to do anything other than lay out my thoughts based on my past education in the creation of the Constitution. I’ve tried to put the phrase “as I understand it” or “my understanding is” around everything I’m thus dredging up from memory.

I’d like to believe the argument that the construction of the Electoral College had nothing to do with protecting the interests of small states, because that would do away with the irritating Trumpista claim that the College’s purpose was to ensure that the presidency went to a winner of a wider variety of states. But I’m not sure I do believe it.

Certainly the Convention’s rejection of having governors choose the president is no proof that the interests of small states weren’t being protected. The governor system would mean one vote per state, which would give the small states too much power. My understanding has always been the makeup of Congress was intended as a compromise: the Senate was apportioned purely by state, while the House more closely approximated apportionment by population. Therefore, the Electoral College, whose numbers were tied to the number of members of Congress in both houses together, gave the small states more power in the Electoral College than they had in the House, but much less than they had in the Senate.

Also, because the number of electors per state was a second-order effect, derived from the numbers in Congress, I’m not surprised if there was not, as Prof. Finkelman states there was not, much discussion of using the Electoral College to protect the interests of small states. But I would be very surprised indeed if there wasn’t discussion of this point in the Convention’s consideration of the creation of the Senate.

Similarly, the 3/5ths clause was, as I understand it, intended to protect the slave power in the House. The Electoral College would again be a second-order effect, despite the quotes from Charles Pinckney and Hugh Williamson (which, as given here, don’t even directly address that point). In any case, because the Electoral College numbers were based on House + Senate together, the 3/5ths clause would be less powerful in the Electoral College than in the House. Although my understanding is that it is certainly true, as Prof. Finkelman states, that it was the 3/5ths clause that enabled Jefferson to defeat Adams in 1800.

(Incidentally, the description of Adams as one “who never owned a slave” reminds me that visits to historical sites have revealed to me that two presidents we don’t think of as slave-owners actually were slave-owners for brief periods, these being Van Buren and Grant.)

I’m also a bit bothered by an unspoken implication that the Electoral College is illegitimate because of the slave-based taint on its origin, even though the 3/5ths clause has been, by definition, a dead letter since 1865. Really it’s accusing the Electoral College of original sin, and as a Jew I find such an argument does not make much of an impression on me. In any case, I’ve seen people denounce the entire Constitution on grounds of one taint on the Founders or another, an argument that must go all the way back to the first Marxist who ever read Charles Beard’s Economic Interpretation.

Prof. Finkelman reports that James Wilson and Gouverneur Morris supported direct election of the president on the grounds that the people would be sure to elect a famous or distinguished candidate. I’m sure they said this. But I’ve always understood that the argument that prevailed against popular vote for president was that the general voters, being ill-informed of nation-wide affairs in days of poor education and when most voters thought of themselves as citizens of their state, not of the U.S. as a whole, would not know much about potential presidential candidates outside their state. But they would know who would know that, and the original intention was to have the electors of the Electoral College be the sophisticates of their states, men who knew the most eligible candidates from other states. But just in case the electors weren’t so sophisticated, there was the insurance clause preventing them from casting both their votes for candidates from their own state.

This argument contradicts the ones given by Wilson and Morris, but I would have thought that there were disputes over this point and that Wilson and Morris lost the argument. If that’s so, then to quote Wilson and Morris alone would be to misread the Convention’s state of mind.

I could be factually mistaken here, but only if I entirely misremember my own education on this matter. But these are my thoughts.

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