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.

Justice Blinded (concluded)

          Despite what “distinguished” commentators on Fox News say, an Attorney General does not work for the president. And a United States Attorney or those acting under him do not work for the Attorney General. A U.S. Attorney is nominated by the president and appointed with the advice and consent of the Senate. A U.S. Attorney pledges fealty to neither the president nor the Attorney General but to the Constitution. A U.S. Attorney serves the country, not particular people in the government.

          A U.S. Attorney can be removed but not by the Attorney General. Only the president can remove a U.S. Attorney. If a U.S. Attorney position becomes vacant, the Attorney General can appoint an interim U.S. Attorney, but that appointment only lasts for 120 days. Then the District Court where the U.S. Attorney is situated—neither the Attorney General nor the president–appoints another interim U.S. Attorney. In other words, the president cannot avoid the joint appointment power with the Senate for a long time when it comes to a U.S. Attorney.

          The Attorney General and U.S. Attorneys inhabit a strange territory filled with inconsistencies. The president can set criminal justice policies broadly or for individual cases. He can remove those who do not follow his directives, but they do not work for him. They serve the country, and he does not have the sole power to replace them. He holds that authority jointly with the Senate. It all makes sense, right, in this nearly perfect country with a nearly perfect constitution where at least someone makes perfect phone calls?

          We think our criminal justice system should be blind and impartial, and that is what we should expect of it, but the Constitution does not directly guarantee that. Even if you believe that “faithfully” executing the laws requires impartiality, you should realize that there is no constitutional mechanism to prevent a president from favoring friends other than through elections and maybe impeachment.

          Settled law does require that probable cause exists to believe that a person committed the crime in order for that person to be prosecuted for it. If that minimal standard is met, nothing in the Constitution prevents the president from going after his perceived enemies. And no matter how damning the evidence against or heinous their actions, nothing prevents the president from preventing the punishment of his friends. We can only depend on those asked to carry out such directives to thwart them. A determined, corrupt president can make that next to impossible.

          Our founders were aware of the dark side of human nature, or, as Alexander Hamilton put it, its “impulses of rage, resentment, jealousy, avarice and other irregular and violent propensities.” The framers of the Constitution created a government of checks and balance as a result, but they could not anticipate all mendacity, paranoia, and self-interest. Now that we have seen a president with a mob boss mentality who scoffs at norms of justice and integrity, we should think about how to regain those norms. If we do get out of this presidency with at least part of our democracy intact, perhaps we can find a way to enshrine blind and impartial justice into law.