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Constitutional Originalism and the Electoral College

By       Message Larry Butler       (Page 1 of 3 pages)     Permalink    (# of views)   3 comments, In Series: Constitutional Originalism

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"The current winner-take-all Electoral College is so baked into American political thought that its features are hard to examine with fresh eyes." [1] Originalists defend the Electoral College based on the intent and objectives of the founding fathers. Does originalism - right or wrong - really support the conservative position [2], or is it merely a defense of an institution that serves their purposes?

Let's take a look. This institution was created by Article II Section 1 of the Constitution, and modified by the Twelfth Amendment, ratified on June 15, 1804. Buckle up, because this one requires some thought about the literal and historical context as well as the limitations of the framers.

LITERAL CONTEXT

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Article II Section 1 says, that the President shall "" together with the Vice President, chosen for the same Term, be elected, as follows

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector".."

The number of senators and representatives was established by Article I Section 2, which says, "Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons." The latter formula was modified by the Thirteenth Amendment, which abolished the institution of slavery.

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The Twelfth Amendment provided for separate ballots for President and Vice President. The Twenty-third Amendment provided for the appointment of electors representing the District of Columbia.

The full text of this Section 1 is shown at the end, together with the full text of the Twelfth Amendment.

So, what was the original intent of Article II Section 1 of the Constitution, and the subsequent intent of the Twelfth Amendment? A thoughtful interpretation of the literal context, the historical context, and the framers' limitations inevitably leads us to a deeper understanding of how the Electoral College has been co-opted by big-money interests.

The intent of the framers, as evidenced by the text itself, was clearly to create an election process that mirrored the power structure of the day. And that power structure was the very representative government created by the Constitution itself. In effect, the framers were saying that they, themselves - or a close surrogate thereof - would elect the executive branch.

The Twelfth Amendment changed the literal text of the Electoral College in 1804. The original plan prescribed a free-for-all election in each state, with a single list of winners sent to the Senate. The Senate would count the votes and declare a winner, with certain conditions, to be President, and a runner-up, with the same conditions, to be Vice-President. The Twelfth Amendment changed the process so that states would send two separate lists to the Senate - one for President and the other for Vice President.

HISTORICAL CONTEXT

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Some have argued that a republic differs from a democracy in the agency role of its representatives, which by necessity insulates the people from the government. However, defining principle of the republic is more accurately the protection of minorities from the mob rule implicit in a pure democracy. The purpose of this safeguard is not to protect the government from the people, but to protect minorities among the people from the government. [3] This concept is essential to understand the significance of rule of law - it's the law, rather than our leadership, that protects us from the majority. We can all agree that the Constitution is the foundation of this bulwark. But the establishment of the Electoral College does nothing to contribute to this protection, so we must look elsewhere for its historical justification.

The sovereign States served as the fundamental building blocks of the Republic in the late eighteenth century. The delegates to the constitutional conventions represented the interests of their states, and they were diverse. Each state wanted to maximize its influence in the new government, and the delegates negotiated aggressively. Two key issues involved slavery and state populations, and these issues had to be resolved to create a binding union.

Slave plantations were the big-money interests of the eighteenth century, comparable to big corporations in today's America. The states with slave economies expected to have great influence in the new government, and they demanded that their enslaved populations - as high as South Carolina's 43% of their total [4] - be included in the census that would determine the number of seats in the House of Representatives. The other states, citing the fact that enslaved people were not permitted to vote, opposed their inclusion in the census. The resulting compromise counted each slave as 3/5 of a person beginning with the 1780 census. The same formula was used for the Electoral College. In effect, the Founders' intention was to recognize the institution of slavery and to reward the big-money interests of the plantation states with disproportional power in the union.

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Thirty five years as a small business consultant, CFO, and university educator specializing in quantitative business and economic modeling - a suite of experience now focused on economic inequality. Carefully attributed data, thoughtful (more...)
 

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