Posted on by rjonakait

Our Rubicon Moment?

Friends asked me to discuss the “constitutional crisis” that the media seems to think is imminent.

My starting point is to explain that the Constitution is not static. It has changed in big and small ways; scholars have identified three major constitutional transformations.

The first came before we even had a national constitution. The newly-independent states were bound together by the Articles of Confederation, which were not considered adequate for governing the emerging nation. Therefore, men got together in 1787 in Philadelphia ostensibly to reform those Articles. Instead, they drafted a new constitution which was adopted by the requisite nine states the next year. A new government came into being. Our government today depends on that eighteenth century document, and it is controlled by the constitution much as it was back then.

Early on that founding document was seen as needing changes. Some states only ratified the Constitution with the understanding that a Bill of Rights would be added. The first Congress proposed twelve amendments, ten of which were adopted and went into effect in 1791. These additions mostly announced rights people assumed they already had and did not change the structure of the government. However, a decade later a major flaw in the document was exposed by the election of Thomas Jefferson and Aaron Burr. As a result, the Twelfth Amendment was adopted modifying the electoral college. From its inception, therefore, the Constitution has been subject to change.

The first significant transformation of the Constitution, however, came from the Civil War and its aftermath. The war occurred partly because of a major flaw in the document itself. Instead of confronting the issue of slavery, the founders tried to avoid it or make feeble compromises about it. As a result, slavery was not merely a stain on the fabric of the Constitution but woven into it. Various factions pulling at the threads and cords of slavery from all directions challenged the constitution, and war came.

In the war’s aftermath, three amendments to the Constitution were passed. The Thirteenth Amendment abolished slavery. The Fifteenth Amendment granted Black males, but not women of any color, the right to vote. These two amendments were transformative, but they were only partially successful. Slave-like practices continued to exist in the country, and within a decade of the adoption of the Fifteenth Amendment, the right to vote was stripped from most Blacks.

The Fourteenth Amendment, although it has several provisions, reshaped our Constitution by commanding that no state “shall deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The original Constitution did little to constrain the states in their treatment of inhabitants. The Fourteenth Amendment, as interpreted by the Supreme Court, changed that. For example, the Court held that the amendment’s due process clause prevented a state from taking a person’s property without just compensation. In the early twentieth century it held that the state could not abridge free speech. Over time, the Court increasingly prohibited the states from interfering with rights guaranteed in the Bill of Rights. The Court, relying on the Fourteenth Amendment, also said segregated state schools were unconstitutional and that states must afford one person, one vote. The constitutional crisis of the Civil War produced a Fourteenth Amendment that transformed the relationship between courts and individuals by expanding and clarifying constitutional rights.

The next major constitutional transformation came during the Great Depression. The Supreme Court had found unconstitutional many state and federal laws regulating businesses. This crescendoed during Franklin Roosevelt’s first term when the Court deemed unconstitutional much New Deal legislation that had been passed by Congress to alleviate the harsh economic conditions. FDR responded by proposing that the Court be expanded. Critics called it “court-packing.” Although the causes are debated by historians, lo and behold, after the court-packing proposal, some justices modified their opinions and now upheld federal powers to regulate business and other activities. The Civil War transformation expanded judicial powers to protect individuals and entities from the government. The Great Depression transformation expanded the power of the federal government to regulate activities affecting “interstate commerce,” which has been broadly defined. The decisions of the New Deal Supreme Court provide the basis for much of the federal government’s regulatory power today.

So. Are we now in the midst of another constitutional crisis? Are we due for another constitutional transformation? I see not one possible scenario, but several.

Conservatives look at our government and see a bloated bureaucracy that was not contemplated by the Constitution. It is entrenched but not elected. That bureaucracy, though authorized by Congress and the president, often seems to act independently of Congress and, more importantly, the president. Although it appears to be part of the executive branch of the government, the bureaucracy often sets and follows its own guidelines and policies. Thus, conservatives see a bureaucracy that is too often resistant to the policies of the president, and they find this in violation of the constitution. This unconstitutionality in the conservative eye must be put to rights. A constitutional transformation is needed to restore the balance that our Constitution contemplates where the president sets and enforces executive branch policies. And, under Trump, conservatives maintain we are seeing the beginning of that needed constitutional transformation.

On the other hand, some, but not all, liberals see a different potential constitutional crisis. Many of Trump’s actions and orders, they claim, have been in direct conflict with specific provisions of the Constitution (e.g., birthright citizenship), have been in violation of the separation of powers, or have violated the constitutional duty of the president to “take care that the laws be faithfully executed.”  And while conservatives see a constitutional crisis in an unelected bureaucracy, liberals see a crisis in the unfettered authority exercised by an unelected Elon Musk who has not been appointed to a Senate-confirmed position the Constitution seemingly requires.

Other liberals may be concerned about the administration’s actions, but they don’t see a present constitutional crisis. They see the system working because the courts have been hearing challenges to Trump’s and Musk’s orders. This is the normal constitutional process, and Trump has said that he will follow the judicial process. Almost all the court rulings have been in the federal district courts, which are the lowest level of federal courts. Following decisions in the district courts, those findings can be appealed to the Court of Appeals. Then the losing litigant may seek to have the Supreme Court hear the matter. (There is no right to have the Supreme Court hear these cases; it is in the Court’s discretion.) Many maintain that as long as this process is being followed, there is no constitutional crisis.

Even so, liberals who don’t see a present crisis, are concerned about a future constitutional transformation. Many, probably most, constitutional scholars believe that under existing Supreme Court rulings, many of Trump’s actions violate the Constitution or existing laws. The first fear is that the current conservative Supreme Court will ignore or overturn the precedents and uphold Trump’s actions. That is, that the Supreme Court will reinterpret the Constitution and laws to give the president even more power than he now has. This will, in effect, remake the Constitution by taking away congressional authority and individual rights and make an already powerful president even more powerful. As it did with its presidential immunity decision, the Supreme Court could transform our government to make the president more kingly, more authoritarian.

The other liberal fear is not of the Supreme Court but of Trump himself. Even though he has said otherwise, the fear is that Trump will either not use the appellate process and just keep bulldozing ahead, or even if he does follow normal procedures, he will not obey Court orders that go against him. He will ignore or defy the judiciary. Of course, he said he wouldn’t do that, and he did not disobey the courts in his first term. However, those around him have suggested that he will this time if courts don’t rule his way. And just as you can find Trump statements that he will honor the judicial process, like the devil quoting the Bible, you can find other Trump pronouncements, such as his recent statement: “He who saves his Country does not violate any laws.”

Presidential defiance of the courts would be a true constitutional crisis, perhaps a fatal one. His recent statement about not committing illegalities when saving the country is ascribed to Napoleon, but precedents go back further into history. Julius Caesar broke the law and illegally marched his troops, loyal to him more than to the nation, across the Rubicon and into Rome. The fall of the Roman Republic began, and a dictatorship took its place.

Posted on by rjonakait

The World Series of the Electoral College

A recent post on a local social media site drew on an analogy to the World Series to defend the Electoral College. The poster referred to a decades-old article recently reprinted in Discover magazine that discusses the theories of Alan Natapoff, a physicist, who favored voting by districts instead of in one mass. Natapoff, thus, seemed to be defending the Electoral College over a nationwide popular vote, as the poster clearly did.

The baseball analogy refers to the 1960 World Series where the New York Yankees won three blowouts but lost four close games to the Pittsburgh Pirates. The Yankees scored more runs, but the Pirates won the series. The poster and the article (https://www.discovermagazine.com/the-sciences/from-the-archive-math-against-tyranny) both noted, “Runs must be grouped in a way that wins games, just as popular votes must be grouped in a way that wins states.” That was fair, they maintain. “A champion should be able to win at least some of the tough, close contests by every means available–bunting, stealing, brilliant pitching, dazzling plays in the field–and not just smack home runs against second-best pitchers. A presidential candidate worthy of office, by the same logic, should have broad appeal across the whole nation, and not just play strongly on a single issue to isolated blocs of voters.” Natapoff decided that “nine-year-olds could explain to a Martian why the Yankees lost in 1960, and why it was right. And both have the same underlying abstract principle.”

There is much wrong with this reasoning. If the 60s Yankees had won the fourth game in another blowout (they scored nine runs in the final game), they would have been recognized as champs without having won a close game. Moreover, winning single games or their equivalents is not always the rule in sports. Cricket, e.g., has multi-day contests. The winner is not decided by who “won” each day, but by the total score. Had it been set up this way, baseball could be a contest decided inning by inning, or football quarter by quarter, but those are not the rules of the game. The rules are not inherent in the way the game is played and certainly not divinely inspired. They are man-made and can be changed. At one time the team that had the most wins after 154 games was in the World Series. The end. That is no longer true. The season is now longer and there are multiple playoff rounds that allow, many believe, for the possibility that a lesser team can become champions.

The poster quoting Natapoff asserts that the “popular votes must be grouped in a way that wins states.” That is not a requirement in all our elections. E.g., we use the total vote to pick our governors and don’t require the victor to have won a majority of counties or parishes. It is only because of the Electoral College that winning a state is required in our presidential elections. (I have no idea what is meant when the poster says, “A presidential candidate worthy of office should have broad appeal across the whole nation, and not just play strongly on a single issue to isolated blocs of voters.” I don’t know of a successful candidate who runs on only one issue, and when I look at the maps that will be produced of red and blue states because of our Electoral College, I see something like isolated blocs of voters. We would not have that with a nationwide vote.)

I seldom respond to any posts except occasionally to point out easily checkable misinformation. (For example, I might respond: Fact-checking sites have made it clear that FEMA workers are not eating the cats and dogs of isolated North Carolina hill folk.) I did, however, reply to this post by saying, “It would be interesting to see the reaction if a conservative won the popular vote but lost the electoral college. We are unlikely to find out. A conservative winning the popular vote???” Almost immediately someone who had already declared the post “great” said, “I couldn’t give a damn what the popular vote says as long as Trump is elected.”

This comment, of course, typifies why discussions of the way we select our president are fruitless. Alan Natapoff may have been sincerely exploring the best way to hold our elections, but most of the rest of us only want reasons for a system that will select our preferred candidate. Electoral College discussions these days are partisan ones with conservatives, like the poster, defending the Electoral College. They want the status quo because they believe it favors Republicans while reformers believe Democrats would benefit from a national popular vote. Recent history fuels these positions. Twice in the last generation we have inaugurated presidents who did not get the largest popular vote, and both were Republicans.

We did not always have this particular partisan divide. In the summer of 1968, polls indicated that 66 percent of Republicans and 64 percent of Democrats believed that the Electoral College should be replaced with a national popular vote. After the election where the popular vote was close, but the Electoral College was not, 80 percent of Americans supported changing the electoral system. In 1969, the House passed by a wide majority (339 to 70) a constitutional amendment to select the president by popular vote. The proposal, however, opposed strongly by Senators from small states, could not get the necessary two-thirds vote in the upper house.

If such an amendment could not make it through the Senate when the populace overwhelmingly favored it, a similar amendment has no chance today. Instead, those who wish to retain or change the Electoral College search for plausible reasons for their positions. The standpatters often refer to the goals of the founding generations, which, I am positive, did not use Mickey Mantle sports analogies. Many defenders contend that the point to the Electoral College was to preserve the powers of the small states in the presidential selection. Reading such comments, I pulled out The Records of the Federal Convention of 1787, edited by Max Farrand, and The Federalist Papers to see what these sources said about the discussion over the methods of choosing the president.

The issue was debated again and again in the Constitutional Convention of 1787. The delegates would agree to a method, but potential flaws in that method would circulate. A different scheme would be proposed and problems with the new proposal would be pointed out. This merry-go-round continued until near the end of the convention when the delegates finally settled on the Electoral College as it appears in the original Constitution.

The convention first voted to have Congress choose the President, but criticisms soon emerged. In James Madison’s words: “If the Legislature elect, it will be the work of intrigue, of cabal, and of faction: it will be like the election of a pope by a conclave of cardinals; real merit will rarely be the title to the appointment.” Madison and others maintained that an Electoral College, however selected, would obviate some of the concerns of a congressional selection. The electors would be chosen for only one purpose and would gather just once. In the adopted version they would not meet together in one place but in the separate states so that there would be little opportunity for cabals, intrigues, and foreign influence. The congressional selection of the president, they said, would also upset a basic goal of the Constitution — the separation of powers — since the President would be beholden to Congress for his selection.

Many other methods of choosing the president were proposed and rejected: The state governors should select the President; electors selected by Congress should make the choice; electors drawn by lot from Congress should choose the President. Madison did state that the “fittest” way to select the President was to have a direct election, but he then noted two problems: “The first arose from the disposition of the people to prefer a Citizen of their own State, and the disadvantage this would throw on the smaller States.” Madison did not find this problem insurmountable and said “that some expedient might be hit upon that would obviate it.” The next speaker, however, differed with Madison’s optimism by saying, “The objection drawn from the different size of the States, is unanswerable. The Citizens of the largest states would invariably prefer the Candidate within the State; and the largest States would invariably have the man.” The delegates thought that a direct election would prejudice the smaller states, but what concerned them was that candidates from small states could not get elected. (Reminder. In 2016, Trump was a lifelong resident of a large state, but New York overwhelmingly voted against the hometown boy. Perhaps the Founders were not familiar with the adage, “Familiarity breeds contempt.”)

Madison also maintained that a direct vote would undermine the South. Many northern states had eased the traditional requirement that only white male citizens who owned real property could vote by allowing white males who paid taxes to also have the franchise. Thus, a higher proportion of people in the North could vote than in the South, and the South’s power would be diluted by a direct election. The Electoral College would prevent this calamitous possibility. It was not suggested that extension of the franchise might benefit the South as well.

Today many assert that the founders were protecting the small states by giving them a slightly greater number of electors than was justified by their populations. However, the founders addressed the small-state problem in a different way. The concern was that a candidate from a small state, even if worthy, would inevitably lose because the large-state electors would vote for one of their own. The solution: each elector would vote for two people, one of whom must not be from the elector’s state. The delegates thought that while one vote may go to the home state favorite, the second vote would be for the person seen as the best in the rest of the country. If that person was from a small state, he could be elected with a collection of second-choice votes.

The Founders added another “accommodation to the anxiety of the smaller States,” as Madison wrote in a letter in 1823. If no person got a majority of the appointed electors, then the House of Representatives would choose the President from the five highest on the electoral list with each state having one vote. The largest and smallest states would be equal in this process, which, according to Alexander Hamilton in The Federalist Papers, would be “a case which it cannot be doubted will sometimes, if not frequently, happen.”

The constitutional convention delegates knew that the large states would dominate the Electoral College, and they did. Luther Martin writing to the Maryland Legislature after the draft Constitution was promulgated but before it was adopted said that the “large states have a very undue influence in the appointment of the President.” Gouverneur Morris, a delegate to the Constitutional Convention, writing in 1803, noted that it was recognized that the large states would dominate the Electoral College. Only if the matter went to the House of Representatives did the small states have a substantial voice in the presidential selection.

The major effect of the original Electoral College was not to give power to the small states but to the slaveholding states. Madison had said that a direct presidential election was “fittest,” but it would harm the South, citing the more “diffusive” franchise in the North, but the Virginian slaveholder continued with the curious comment that with a direct election the South would “have no influence on the score of the Negroes. The substitution of electors obviated this difficulty….” The “difficulty” was avoided by basing the number of electors on representation in the House of Representatives. The apportionment of the House, of course, incorporated the three-fifths clause where that percentage of slaves was used in the allocation of House seats.

The three-fifths clause was, therefore, incorporated into the Electoral College giving extra power to the large slaveholding states. The first census in 1790 found that New York had a free white population of 313,000 and North Carolina had a free white population of 289,000. Each state had the same electors, however—twelve—after that first census. While New York had 21,324 slaves, North Carolina had 100,572.  However, when 60% of the slaves were included to determine representation in the House, North Carolina’s “population” was larger than New York’s. South Carolina had a free white population of 139,000, but New Jersey had thirty thousand more. Even so, South Carolina had twelve electors and New Jersey eleven. South Carolina had 107,094 slaves and New Jersey 11,423. (New Jersey is the starkest example of why Madison feared for the effect on the South were there to be a direct election of the President. As Madison had to know, New Jersey alone among the states then allowed white women to vote, and its total vote might have been twice that of South Carolina’s. With the Electoral College as adopted, even though South Carolina had the smaller white population, it had more power in the presidential selection than did New Jersey.)

Virginia had a free white population of 441,000; Pennsylvania had 422,000, about a four percent difference. Virginia had 292,627 slaves and Pennsylvania had 3,731. Even though the enslaved people could not vote, because of them Virginia had forty percent more electors than Pennsylvania—twenty-one to fifteen.

A direct vote for President would have lessened the power of the South; instead, the Electoral College as adopted magnified it. Founders recognized and said that large states would dominate the vote in the Electoral College, but Southern states would have special influence in picking a President because of the peculiar way in which slaves were counted.

The Founders did not protect small states via the Electoral College, and their sop of requiring electors to vote for two people with one not from the state of the elector proved to be laughable. The Framers in adopting the Electoral College did not foresee the rise of political parties even though parties were in place only a few years after the Constitution was adopted. Partisanship was evident in the first contested presidential election, after Washington retired in 1796.* By then, two men ran as a team with one running for President and the other as Vice-President. The country made it through 1796 without a major problem, but the Electoral College caused a crisis in 1800.

Thomas Jefferson and Aaron Burr ran as a Republican team in the presidential election. The widespread understanding was that Jefferson was running for President and Burr for Vice President. John Adams, the Federalist incumbent, ran with his vice-presidential running mate Thomas Pinckney against Jefferson and Burr. Jefferson got seventy-three electoral votes to Adams sixty-five, making Jefferson the apparent victor, but of course, because each elector had two votes, Burr received the same number of electoral votes as Jefferson. With two candidates yoked together by party affiliation, it was not a surprise that they would get the same number of electoral votes. A tie, which was not foreseen by the Framers, was close to inevitable with the rise of political parties.

The selection of the President in 1800 went to the lame-duck Federalist-dominated House, even though the Federalists had lost the election. That losing party had to decide which Republican, Jefferson or Burr, was the lesser evil. Thirty-six ballots later, Jefferson became the third President. And we got the Twelfth Amendment to fix this major flaw. That Amendment required electors to cast separate votes for President and Vice-President.**

At least when it came to the method of selecting the president, the Framers’ wisdom was faulty. Perhaps there are good reasons today to have the Electoral College but not because the founding generation created a perfect system. It did not protect the integrity or sovereignty of the small states. Our first six presidents all came from large states. Four of them were Virginians. This was not a surprise for the original Constitution through the Electoral College gave the major slaveholding states the dominant power in picking the President.

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*The Framers also did not foresee that electoral votes would be allocated by a winner-takes-all approach where the candidate with the most votes in each state would get all of that state’s electoral votes. That development, however, did not come quite as quickly as the rise of political parties. In 1796, even though Jefferson won the most votes in Pennsylvania, Virginia, and North Carolina, one elector in each of those states voted for John Adams instead, and those three votes made Adams president. He received 71 electoral votes to Jefferson’s 68. Jefferson received the second most votes. Adams’s running mate, Thomas Pinckney, garnered 59 electoral votes. Thus, under the electoral system then in place, Jefferson became Vice-President under his political enemy, Adams, an uncomfortable result.

**Elections might be more fun if we still had the original electoral scheme as indicated by Alexander Hamilton’s devious actions in 1796. Although Adams and Hamilton were both Federalists, Hamilton did not want Adams to become President. Supposedly Hamilton approached electors in states Jefferson had won and urged those electors, after voting for Jefferson, to give their second vote to Thomas Pinckney. Hamilton was hoping that Jefferson-Pinckney votes plus Adams-Pinckney votes would give Pinckney the most electoral votes and the Presidency. Hamilton’s machinations seem to have borne some fruit, most notably in South Carolina where both Jefferson and Pinckney received eight electoral votes. The scheme failed because in several states that Adams won, the electors divided their second votes between Pinckney and other candidates or did not give any second votes to Pinckney. For example, Adams received nine votes in Connecticut, but Pinckney got only four, with five votes going to John Jay. New Hampshire gave six votes to Adams, but none to Pinckney. Pinckney received twelve fewer electoral votes than Adams. But think of the gamesmanship we might have if this original electoral edifice still existed.

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No Public Defender Need Apply . . . (concluded)

          Republicans have attacked judicial nominees for having been public defenders, that is, for having defended poor people charged with crimes. These critics may be trying to raise a soft-on-crime banner, but they aren’t pledging fealty to the Constitution when they do so. These “conservatives” do not seem to know an important decision made by our Founders about defense counsel and our fundamental rights.

          You might take it for granted that those accused of crimes can have a lawyer to aid with their defense and assume that that right goes back to time immemorial, but when our country was formed, English law did not permit a defense counsel in criminal cases. It was not just that English law did not provide a lawyer for a person who could not hire one. Instead, those charged with felonies, even those facing execution, were forbidden from having an attorney.

          Our founders rejected those English restrictions. The Sixth Amendment to the Constitution, which followed state constitutions that had already granted the right, guaranteed the right to a defense lawyer in criminal cases: “In all criminal prosecutions,” it states, “the accused shall enjoy the right . . . to have the assistance of counsel for his defence.”

          This was not some abstract right for the founders for they acted as those lawyers to defend unpopular clients charged with crimes. For example, there was this one future president….

          On March 5, 1770, while British soldiers were occupying Boston, a dispute erupted at the Custom House. The soldiers, led by Captain Thomas Preston, opened fire. Three Bostonians were instantly killed, and two others died soon afterwards. The event became known as the Boston Massacre.

          The soldiers were tried for murder in two separate trials. Captain Preston was prosecuted first, and the rest of the soldiers jointly tried later. With the defendants claiming self-defense as justification, Preston and five of the other soldiers were acquitted by juries, while two others were convicted only of manslaughter. 

          The lead counsel for the reviled defendants was John Adams—yes, that same John Adams who was our first vice-president and our second president. His defense did not stand in the way of these later political successes even if today some Republican senators would try to use his  advocacy to prevent him from serving in the federal government. Adams, however, was proud of his action. Three years after the trials, as the drums of the Revolution beat ever louder, Adams wrote that a “Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently.” The right to defense counsel that existed in Massachusetts had helped prevent that blot.

          John Adams was not the only lawyer of the founding generation to act as a defense counsel for the unpopular. Gulielma Sands lived in a New York City boarding house run by her cousin and her cousin’s husband, Catherine and Elias Ring. On December 22, 1799, Sands left that house never to return. On January 2, 1800, her body was fished out of the Manhattan Well. Newspapers flooded the town with rumors suggesting that fellow boarder, Levi Weeks, had killed her.

          Public titillation ran high and only a fraction of those seeking to attend the subsequent trial of Weeks got into the crowded courtroom. The case seemed simple but damning for Weeks. The prosecution maintained that he and Sands had become intimate. He had promised to marry her. People in the boardinghouse thought that the two had left the house together on December 22 for their marriage. Weeks returned later that evening, however, and claimed not to have been with her. A few days later, a boy found Sands’s muff in the Manhattan Well, and on January 2 her body was recovered. Doctors said that she had been strangled before being thrown into the well, and Weeks had intimated that her body was there before that fact was publicly known.

          The defense attorneys brilliantly shredded every part of the prosecution case, and Weeks was acquitted by a jury after five minutes of deliberations despite the publicity against him. The acquittal, however, did not return his standing in New York. He remained despised as a seducer and murderer and soon left for Mississippi.

          While the accused did not recover his reputation, the defense of this unpopular person did not tarnish his lawyers. People may have had many negative thoughts today and back then about Aaron Burr, soon to be vice-president, and Alexander Hamilton, but none stem from their defense of Levi Weeks. (Although they were political enemies, Burr and Hamilton appeared in the same courtroom, sometimes on the same side as in the Weeks trial and sometimes as opponents, during nearly every important legal case in New York City after the Revolution.) A third lawyer, Brockholst Livingston, joined them at the defense table. His participation did not stop Thomas Jefferson from nominating him to the Supreme Court, where he served for seventeen years. (Don’t take all your history from musicals. Hamilton refers to the Weeks trial, but has it set at an incorrect time.)

          The founders guaranteed a right to counsel. The founders acted as defense counsel. Today they would be attacked for this.

          Conservatives, however, attack public defenders for another reason. Those defenders do not just represent those accused of crimes. They represent the poor, the outcast, the powerless, and that also makes the defenders dangerous to Republican senators who apparently think that only those who have served the rich and powerful should be in the government, and that is especially true for the Supreme Court.

Posted on by rjonakait

The Shortsighted Electoral College (concluded)

The major effect of the original Electoral College was not to give power to the small states but to the slaveholding states. Madison had said that a direct presidential election was “fittest” but it would harm the South, citing the more “diffusive” franchise in the North, but the Virginian slaveholder continued with the curious comment that with a direct election the South would “have no influence on the score of the Negroes. The substitution of electors obviated this difficulty. . . .” The “difficulty” was avoided by basing the number of electors on representation in the House of Representatives. The apportionment of the House, of course, incorporated the three-fifths clause where that percentage of slaves was used in the allocation of House seats.

The three-fifths clause was, therefore, incorporated into the Electoral College giving extra power to the large slaveholding states. The first census in 1790 found that New York had a free white population of 313,000 and North Carolina had a free white population of 289,000. Each state had the same electors, however—twelve—after that first census. While New York had 21,324 slaves, North Carolina had 100,572. South Carolina had a free white population of 139,000 but New Jersey had thirty thousand more. Even so, South Carolina had twelve electors and New Jersey eleven. South Carolina had 107,094 slaves and New Jersey 11,423. (New Jersey is the starkest example of why Madison feared for the effect on the South if there had been a direct election of the President. Even if the franchise had been equally distributed in South Carolina and New Jersey, New Jersey with its larger white population no doubt would have had more power in picking the president; if the turnout was equal, New Jersey would have about 20% more votes than South Carolina. But as Madison had to know, New Jersey then allowed women to vote, and its total vote might have been twice that of South Carolina’s. With the Electoral College as adopted, even though South Carolina had the smaller white population, it had more power in the presidential selection than New Jersey.)

Virginia had a free white population of 441,000; Pennsylvania had 422,000, about a four percent difference. Virginia had 292,627 slaves and Pennsylvania had 3,731. Even though 40% of Virginia’s population could not vote, Virginia had forty percent more electors than Pennsylvania—twenty-one to fifteen.

A direct vote for President would have lessened the power of the South; instead the electoral college as adopted magnified it. Founders recognized and said that large states would dominate the vote in the Electoral College, and Southern states would have special influence in picking a President because of the peculiar way in which slaves were counted.

Unlike what some people now claim, the demigods of 1787 did not protect small states via the Electoral College, and their sop of requiring electors to vote for two people with one not from the state of the elector proved to be a laughable protection. The Framers in adopting the Electoral College did not foresee the rise of political parties even though parties were in place only a few years after the Constitution was adopted and were evident in the first contested presidential election, after Washington retired in 1796.* By then, two men ran as a team with one running for President and the other as Vice-President. The country made it through 1796 without a major problem, but the Electoral College caused a crisis in 1800.

Thomas Jefferson and Aaron Burr ran as a Republican team in the presidential election. The widespread understanding was that Jefferson was running for President and Burr for Vice President. John Adams, the Federalist incumbent, ran with his vice-presidential running mate Thomas Pinckney against Jefferson and Burr. Jefferson got seventy-three electoral votes to Adams sixty-five, making Jefferson the apparent victor, but of course, because each elector had two votes, Burr received the same number of electoral votes as Jefferson. A tie, which was not foreseen by the Framers but was close to inevitable with the rise of political parties.

The selection of the President in 1800 went to the lame-duck Federalist-dominated House, even though the Federalists had lost the election. That losing party had to decide which Republican, Jefferson or Burr, was the lesser evil. Thirty-six ballots later, Jefferson became the third President. And we got the Twelfth Amendment to fix this major flaw. That Amendment required electors to cast separate votes for President and Vice-President.** At least when it came to the Electoral College, the Framers did not see very far at all.

Remember this whenever someone suggests that the Framers were infallible or that the Constitution is a God-given document. And remember that the original Constitution gave the major slave-holding states the dominant power in picking the President.

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*The Framers also did not foresee that electoral votes would be allocated by a winner-takes-all approach where the candidate with the most votes in each state would get all of that state’s electoral votes. That development, however, did not come quite as quickly as the rise of political parties. In 1796, even though Jefferson won the most votes in Pennsylvania, Virginia, and North Carolina, one elector in each of those states voted for John Adams instead and those three votes made Adams president. He received 71 electoral votes to Jefferson’s 68. Jefferson received the second most votes. (Adams’s running mate, Thomas Pinckney, garnered 59 electoral votes.) Under the electoral system then in place, Jefferson became Vice-President under his political enemy, Adams, an uncomfortable result.

**Elections might have been more fun if we still had the original electoral scheme as indicated by Alexander Hamilton’s devious actions in 1796. Although Adams and Hamilton were both Federalists, Hamilton did not want Adams to become President. Supposedly Hamilton approached electors in states Jefferson had won and urged those electors, after voting for Jefferson, to give their second vote to Thomas Pinckney. Hamilton was hoping that Jefferson-Pinckney votes plus Adams-Pinckney votes would give Pinckney the most electoral votes and the Presidency. Hamilton’s machinations seem to have borne some fruit, most notably in South Carolina where both Jefferson and Pinckney received eight electoral votes. The scheme failed because in a number of states that Adams won, the electors divided their second votes between Pinckney and other candidates or did not give any second votes to Pinckney. For example, Adams received nine votes in Connecticut, but Pinckney got only four, with five votes going to John Jay. New Hampshire gave six votes to Adams, but none to Pinckney. Pinckney received twelve fewer electoral votes than Adams. But think of the gamesmanship we might have if this original electoral edifice still existed.