The Electoral College as a Restraint on American Democracy: Its Evolution from Washington to Jackson
When the American colonies declared their independence from Britain in 1776, the fundamental principle underlying the new government they created was the principle of liberty. To the Founders, liberty meant freedom from government oppression, because at that time, government was the primary threat to the liberty of individuals. The Declaration of Independence contains a long list of grievances that the colonists had against the Bang of England to document how King George had infringed upon the liberty of the colonists, and those grievances provided their justification for creating a new government, independent of Britain. At that time, the concept of liberty was a relatively new and truly revolutionary idea, and it provided the fundamental principle for the design of the new American government. Two centuries later, the principle of liberty has been replaced by the principle of democracy, and most Americans at the end of the twentieth century surely would view the fundamental principle of American government to be democracy, not liberty.
The modern principle of democracy holds that public policy should be determined by the views of the nation’s citizens, as aggregated through electoral and other political institutions. The government should do what the people want. But the Founders went to great lengths to insulate the activities of their new government from democratic pressures. One of the ways that they tried to limit their government from democracy was by selecting the nation’s chief executive through the use of an electoral college, rather than through direct democratic election. The electoral college never worked as planned, however, and by 1828, when Andrew Jackson was elected president, the method of electing the president had almost completely metamorphized into the democratic system that still exists at the beginning of the twenty-first century.
This metamorphosis of the electoral college mirrors changes that have occurred more generally in American government during its first two centuries. At its founding, American citizens believed that their government was created to protect their liberty, and the government was designed to be limited in scope. The Constitution was written to protect the rights of individuals and limit the powers of government. In other words, it was intended to preserve liberty. Not only did the Founders not intend for public policy to be determined democratically, they actively tried to design their new government to prevent public policy from being directed by the demands of its citizens. They recognized that liberty could be compromised by democracy, and that the will of the majority had the potential to be just as tyrannical as a king or dictator. Yet over the centuries, the principle of liberty that the Founders fought for became less of a priority for American citizens, and the principle of democracy became more significant. At the end of the twentieth century, the term liberty had an almost quaint sound to it, while trying to encourage the spread of American-style democracy around the world had become a significant part of American foreign policy.
The Founders tried to prevent the formation of a democratic government. It sounds almost anti-American to question the principle of democracy, at least as the term democracy is understood today. The electoral college was an important part of their attempt to limit the influence of democracy on American government. The evolution of the electoral college is, in one sense, only a small part of the story of the transformation of the fundamental principle of American government from liberty to democracy Yet it is an important part of the story, because it was one of the earliest manifestations of this transformation. Within a few decades of the nation’s founding, one of the most significant checks that the Founders tried to enact to control democracy had been eliminated.
Liberty, Democracy, and the U.S. Constitution
The hundred years preceding the American Revolution saw a major change in the way that people viewed the rights of individuals and the relationships between citizens and their governments. When Thomas Hobbes wrote Leviathan in 1651,1 he argued that without government, life would be a war of all against all, and that to maintain an orderly society, people had to pledge their allegiance to the sovereign, and to follow the sovereign’s rules. The rules of the sovereign amounted to a social contract, Hobbes argued, and the government was justified in killing those who did not accept the sovereign’s rules. Only a few decades later, John Locke, in his Second Treatise of Government,2 offered a radically different vision of the social contract. People did not get their rights from government, as Hobbes suggested. Rather, people naturally had rights, and it was the role of the government to protect those natural rights. The social contract as Locke envisioned it was an agreement among citizens to respect each others’ rights, not a contract between the government and the people, as Hobbes had described it. The government of the United States was established to preserve this Lockean notion of rights.
The ideas of Locke and other European Enlightenment writers became popularized by the mass media. One prominent example was a series of newspaper columns written in the London Journal in the 1720s by John Trenchard and Thomas Gordon, using the pen name Cato. Cato’s letters were collected and widely reprinted.3 These ideas found their way to the American colonies, where newspaper columnists and pamphleteers incorporated this new concept of liberty into their writing, spreading the idea of liberty to the general public and transforming the way that citizens viewed their governments.4 The idea that governments should serve their citizens, rather than the other way around, was a radical new idea in the 1700s, but one that laid the intellectual foundation for the American Revolution. The Revolution was fought to secure the liberty of the new nation’s citizens, and the Founders firmly believed that the main threat to liberty was the power of government. Thus, their challenge was to create a government that had the power to protect the liberty of its citizens but that was constrained from violating those rights it was designed to protect.
The new nation’s first constitution was the Articles of Confederation, which were approved by the states in 1781. Under the Articles, the United States was run by a unicameral legislature and had no executive or judicial branches of government. It had no powers of direct taxation, but rather had to requisition the state governments for funds. State governments had a substantial amount of control over the federal government under the Articles. Following the philosophy of liberty, the Articles of Confederation guaranteed the rights of Americans and strictly limited the powers of the federal government.5 Indeed, by the mid-1880s many of the Founders believed that the Articles too severely limited the powers of the federal government, to the extent that it had insufficient power to protect the liberty of its citizens. Thus, in 1787 Congress called for a convention to amend the Articles of Confederation in order to create a stronger federal government. The result was the United States Constitution. The Constitution represented a major change in both the structure of the federal government and in the powers of the federal government. Still, it was designed to protect the liberty of its citizens and to prevent decisions from being made democratically.
A limited amount of democratic decision-making is called for in the Constitution, but only to undertake the enumerated powers of the federal government. The government was deliberately designed to be limited in scope. In the event of any remaining uncertainty, the Tenth Amendment to the Constitution—a part of the original Bill of Rights that was ratified along with the Constitution—reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In short, unless the Constitution says that the federal government can undertake a certain activity, the Constitution prohibits the federal government from undertaking it. During the nineteenth century this idea was taken seriously, and Congress would routinely debate whether specific proposals were within the powers enumerated by the Constitution. In the twentieth century the idea increasingly fell by the wayside, and the limits of public policy became determined by the popular opinion of the electorate rather than by the limits specified in the Constitution. Why this happened is well beyond the present scope6; for present purposes, the point is that the transformation of the electoral college was an early step in the process.
The Constitution specifies that the government itself arrive at decisions by a democratic process. Legislation must be approved by both houses of Congress and then approved by the president, for example. Presidential vetoes can be overridden by a two-thirds vote, and a two-thirds vote is required to impeach a president. Legislative and executive responsibilities are constitutionally separated, and they remain separated as interpreted by the Supreme Court at the end of the twentieth century. Thus, even within the government, decisions are not simply made by democratic voting. Rather, there are procedures and a division of power that are established by the Constitution, and the powers of government were intended to be limited only to those enumerated by the Constitution. The Constitution was designed with democracy as a means to an end, as a tool of governmental decision-making. The Constitution was also designed with a system of checks and balances so that the three branches of government would each check the power of the others as a method of limiting the scope of governmental activity. The Founders actively tried to prevent creating a government that would undertake whatever actions met with a consensus of approval of those who were in charge and actively tried to insulate the decisions of those who were in charge from the demands of the citizenry.
The Electorate and Their Government
The notion of three branches of government, each with roughly equal power, checking each other, is a part of the fundamental design of American government. At the end of the twentieth century, Americans had the idea that their government should be accountable to the electorate, but the Founders had very different ideas, as is evident simply by looking at the design of the Constitution. Consider each of the three branches.
The legislative branch was intended to be most accountable to the electorate in the Founders’ design, because members of the House of Representatives were chosen in popular elections. Senators, however, were originally chosen by their state legislatures, and this system continued until 1913, when the Seventeenth Amendment to the Constitution was ratified, specifying that senators were to be chosen by a direct vote of the electorate. But for more than a century, and for more than half of the nation’s history (as this is being written), senators were chosen by their state legislatures, not by popular vote. The logic of that system is straightforward. The House of Representatives already represents the views of the nation’s citizens. To have a Senate elected by those same citizens means that legislation must meet the approval of two bodies who represent the same population and the same interests. As the Founders designed it, legislation had to meet the approval of the representatives of the citizens in the House of Representatives, and the representatives of the state governments in the Senate, which is a much more stringent test.7 The Seventeenth Amendment that mandated direct election of senators was yet another step in the transformation of American government from liberty to democracy In the Constitution as originally written, senators were not democratically elected, but were chosen by other government officials, and this deliberately insulated senators from the democratic pressures of American citizens.
Thus, looking at the legislative branch of government, only half of it was originally democratically elected by the citizens. The other half was chosen by people in government. Furthermore, the Constitution did not specify who had the right to vote for members of the House of Representatives. It said only that the voters “shall have the Qualifications requisite for Electors of the most numerous branch of the State Legislature.” The qualifications for voting were determined by the states themselves and differed from state to state, but the Constitution, as originally written, gave nobody the explicit right to vote in federal elections. Several constitutional amendments have since changed that. People had the right to vote in federal elections only if their states gave it to them. In the original Constitution, democratic input by citizens was very limited, even in the legislative branch of government.
The judicial branch of government is overseen by the Supreme Court, and justices are still appointed by the president and confirmed by Congress. There has never been any direct accountability of Supreme Court justices to the electorate. Similarly, the Constitution specified that the president would be selected by an electoral college, or by the House of Representatives if no candidate got votes from a majority of the electors. The Constitution never has specified how a state’s electors are chosen, and the Founders tried to insulate the election of the president from popular democratic pressures, too.
Looking at the three branches of government as originally designed by the Founders, only members of half of one branch were to be chosen democratically. If each branch was designed to have roughly equal power, as would have to be the case if the branches were designed to check and balance each other, the federal government was designed to be only one-sixth democratic, and even there, it allowed the states to determine who could vote for members of the House of Representatives. Senators were chosen by their state legislatures, the president was chosen by an electoral college, and Supreme Court justices were appointed by the president. The government was not designed to be democratic, and the Founders had no intention of allowing citizens to directly select the individuals who ran the government. Rather, various mechanisms were established for selecting federal officials such that no faction would be able to maintain control over who would hold positions of power. The electoral college was one of those mechanisms designed to prevent the government from becoming democratic.
The Electoral College
The Constitution was designed so a group of highly qualified experts would be designated to select the president and vice president. Article II, Section 1, states,
Each State shall appoint, in such a 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 as an Elector.
Constitutional amendments have changed some aspects of the process by which the president is elected, but this provision remains unchanged.
It is apparent from the wording of this provision of the Constitution that the Founders did not intend for electors to be democratically elected (although they did not rule out the possibility) and is even more apparent that however the electors were chosen, they did not intend the method of choice to dictate how the electors would cast their ballots. Otherwise, why would the Constitution rule out federal officials as electors? Article II, Section 1 of the Constitution continues, “The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves.” The person receiving the most votes would then become president if that person received votes from a majority of the electors, and the person with the second-highest number of votes would become vice president. This provision was changed slightly by the Twelfth Amendment in 1804 so that the president and vice president were voted on separately, but the electoral college system remained essentially unchanged otherwise. The Constitution has never bound electors to vote for specific candidates, and the Constitution makes it clear that the Founders envisioned electors using their discretion to select the candidates they viewed as best-qualified. That system remains intact at the beginning of the twenty-first century, and even though electors are associated with specific candidates, it has not been uncommon for an occasional elector to break ranks and vote for someone other than the candidate chosen by the state’s voters.8
In practice, most presidents have won election by receiving a majority of the electoral votes, but at the time the Constitution was written, the Founders anticipated that in most cases no candidate would receive votes from a majority of the electors.9 The Founders reasoned that most electors would prefer candidates from their own states, so the typical elector would vote for one candidate from his own state and a candidate from another state, following the constitutional requirement, and it would be unlikely that voting along state lines would produce any candidate with a majority of votes. This state bias is reinforced by the fact that these electors are constitutionally charged to meet in their states and then forward their votes to the president of the Senate to be counted. There is much less of an opportunity for consensus under this system than if the electors from all of the states gathered together in a common location, making it even more likely that no candidate would receive a majority.
Today, it is common for people to conjecture that electors were to meet in their own states rather than gather in a central location because transportation was much more difficult then. Yet it is apparent that the system of having electors meet in their own states rather than all together as one group serves another purpose: It makes it more difficult for the electoral college to arrive at a consensus when there is in fact no consensus candidate. Article II, Section 1 of the Constitution specifies that “if no Person [has] a Majority, then from the five highest on the List the said House shall in like Manner chuse [sic] the president.” The Founders envisioned that in most cases no candidate would end up receiving votes from a majority of the electors, so the president would end up being chosen by the House of Representatives from the list of the five top electoral-vote recipients.
As it has evolved, the actual practice of electing a president is quite different from the way that the Founders intended. The Founders intended electoral votes to be cast by electors who would be more knowledgeable than the general public, rather than by popular mandate, and the Founders envisioned that in most cases the final decision would be made by the House of Representatives rather than the electors anyway. Furthermore, there was no indication that the number of electoral votes actually received should carry any weight besides creating a list of the top five candidates. The House could then use its discretion to determine who on that list would make the best president. Quite clearly, the process was not intended to be democratic, although it has evolved that way despite the fact that the constitutional provisions for selecting a president remain essentially unchanged. As specified in the Constitution, the election process should resemble the way that a search committee might serve to locate a high-ranking corporate (or government, or academic) administrator. The committee, like the electoral college, would develop a list of candidates, and the CEO (or bureau chief, or university president) would then select his or her most preferred candidate from the list. As it actually has evolved, this multi-step process has been set aside in favor of popular elections.
The electoral college system envisioned by the Founders was designed to select a chief executive for the nation from a candidate pool composed of an elite group. Successful candidates would have to be well-known and viewed as highly qualified in many states to get enough electoral votes to make the final list and would have to have enough respect from within the House of Representatives to be chosen from a list of five finalists. Those involved in the selection process would be an elite group of Americans, and the process was engineered in order to produce a president who came from the upper echelons of the American elite. The process was not intended to be democratic.
The Selection of Presidential Electors
The current selection of electors is by a restricted general ticket, which allows voters only to vote for a bloc of electors who represent a specific candidate, but this method of election was not well-established until at least three decades after presidential elections began. The most common method for selecting electors early in the nation’s history was to have state legislatures do it. In the first presidential election, only two states, Pennsylvania and Maryland, used general-ticket elections to select their presidential electors. In the second presidential election in 1792, there were fifteen states, and three used general-ticket elections, ten chose their electors in the state legislature, and two had district elections for electors. In the election of 1800, which elected Thomas Jefferson for his first term, there were
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