Trump, Hamilton, and the Presidency

If one believes the electoral college is awesome, one cannot make an argument from the position of "the wisdom of the Founders" nor from a viewpoint based on original intent.

hamilton-alexanderNo, I am not referring to the current brouhaha regarding Vice President-elect Pence’s visit to Hamilton: An American Musical.

Rather, I am thinking about the actual Alexander Hamilton and his writings on the electoral college, specifically Federalist 68:

The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States. It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue.

First, it is rather difficult, from a factual and dispassionate point of view, to claim that the winner of the electoral vote and President-elect of the United States, Donald J. Trump, is in some “eminent degree endowed with the requisite qualifications” to hold that office (save that he is a natural born American over 35 years of age).   Nor is he, “pre-eminent for ability and virtue.” This is especially true if we consider the that Framers were highly influenced by Greek and Roman (as influenced by Greek) philosophical claims about virtue.  They would not have found Trump’s clear avarice to be virtuous in the least (go look at what Plato said about perusing wealth, for example).  Nor would they find a life bereft of public service until the age of 70 to be admirable (look, for example, at what John Adams and many other Founders wrote about public service).

Rather, it is quite clear that Trump’s chief talent is, in fact, “the little arts of popularity” (and, indeed, of “low intrigue”).  After all, this is man whose main business model is placing his name on garish products and who built much of his current popularity on a reality TV show.  His career is the very manifestation of “the little arts of popularity.”

In terms of fulfilling the intent of the Framers, it is very difficult to argue that President Trump would fit their vision of what the EC would produce.

We have to remember, that the original design of the electoral college assumed that the states would select delegates (i.e., electors) who would come together and deliberate over who should be president (back to Hamilton):

the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.

Note that this was an elite process:  men with knowledge and wisdom brought together to discuss, debate, and weigh options before making a selection for their votes.  This is the direct opposite of using the institution to select a populists who is on track to lose the popular vote by somewhere in the vicinity of 1.5 million votes.  Indeed, when one thinks about what the institution was designed to do and then compare that to what the 2016 election has created, it is pretty stunning.  Now, understand, that doesn’t necessarily make the outcome wrong from an institutional process point of view.  But it clearly demonstrates the folly of asserting the EC functioned as designed.  Arguments about red and blue states, swing states, and even the population of states miss utterly the arguments made for the EC in the Federalist Papers.  At a minimum, the electoral college evolved away from its original design a long, long time ago (really, starting with the election of Adams and certainly by the election of Jefferson).

The Framers of the US Constitution and the proponents of the electoral college would almost certainly be appalled by President Trump for these very reasons.  Further, they would have to admit that the institution they designed did not work as they intended.  So, this means that even if one believes the electoral college is awesome, one cannot make an argument from the position of “the wisdom of the Founders” nor from a viewpoint based on original intent.  Such positions are utterly unsupportable.

In conclusion let me be clear about three things.  First, the electoral college does not work as designed.  This is clear and not disputable if one looks at the writings of its designers.  Second, this means that any appeals to design or “original intent” are flawed (and, indeed, are wrong).  Third, this does not mean, however, that the electoral college is indefensible, it just means that any defense of it requires arguments that have nothing to do with the Framers of the Constitution.  As such, this is a plea, at a minimum, that one understand what one is claiming.  Further, it is to point out that not only can one not claim that the results of 2016 are what the Framers intended, Federalist 68 makes a pretty good case that 2016 is the opposite of what they intended.

FILED UNDER: *FEATURED, Presidency, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is Professor of Political Science and Dean of the College of Arts and Sciences at Troy University. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Console says:

    The constitutional convention itself also provides the arguments that people back then had against the popular vote. A big divide was that the north had more “qualified voters” and but the south had more people. Our original sin is infused into damn near every political compromise that exists in the constitution.

  2. @Console: Yup.

  3. stonetools says:

    Seems to me that we should require the Electoral College to act as how originally intended. It should meet as a body, then after sober deliberation select to be President the nominee best qualified to be President, without regard as to who won the popular vote or the number of the states with the highest tally of presumptive Electoral College votes.

  4. Pch101 says:

    But it clearly demonstrates the folly of asserting the EC functioned as designed.

    Faithless electors were considered to be a feature, not a bug. In practice, we’ve virtually eliminated faithless electors and we usually defer to majority rule (although obviously not in this particular election.)

    I suppose that Hamilton would remind us that there are other checks and balances in the system. (He would probably approve of Senate cloture. And after all this time, it remains difficult to amend the constitution.) With fixed terms, we should have the good sense to overthrow him in 2020. The entire system does not hinge on the results of the electoral college (I hope.)

  5. Andy says:

    Yes, it’s true that the EC, especially today, does not meet the framer’s original intent, but that is true with many aspects of the Constitution. I think it says a lot that our system (not just the EC) has worked pretty well for over two centuries despite massive changes in our country and society.

  6. @Andy: In many ways, I agree.

    However, it also undercuts a great deal of the “original intent” fetish that so many adhere to.

  7. Console says:

    @Andy:

    Worked well? It’s a pretty good contributor to the civil war (Lincoln becomes president with 39 percent of the popular vote), or at the very least, the south wanting to secede in the aftermath of the 1860 election. Not only that but imagine if we had a 2000 situation now with a 4-4 tie.

  8. Terrye Cravens says:

    In truth the Electoral College has become a rubber stamp and not a fail safe as it was intended to be.

  9. Tony W says:

    @Console:

    imagine if we had a 2000 situation now with a 4-4 tie.

    If this happened, the recount of Florida ballots would simply continue, uninterrupted

  10. MBunge says:

    In the name of all that is holy, even I am getting tired of making this point but obviously I need to because some people refuse to remove their head from their behind.

    The Founders would have been appalled at someone running for President while under criminal investigation. The Founders would also have been appalled in general by Bill Clinton, who certainly resembles a man with a talent for low intrigue and the little arts of popularity.

    I am officially sick and tired of this masturbatory effort to assign the blame for Trump to something other than the longstanding failure of our elites to do their damn civic duty.

    Mike

  11. @MBunge:

    A) The blame for Trump, first and foremost, belongs to those who voted for Trump.

    B) The second level of blame belongs to the party that nominated Trump.

    C) From there we can start talking about other levels and layers of blame.

    D) Most importantly: you neither have to read, nor comment, on anything that I write.

  12. And Hell’s Bells, this isn’t even a post about blame.

  13. Matt says:

    @MBunge: Yes I agree the founders would be appalled that we just elected a man under criminal investigation for multiple crimes. A man who just agreed to pay $25 million in compensation for one of his many scams. A man who has admitted using funds from his charity to pay off attorney generals to stop lawsuits and more…

    Yes I know you’re talking about Hillary because that’s all you care about. The Clinton’s have been under permanent investigation since the day Bill was elected. Despite hundreds of millions in dollars spent and untold amounts of man time the only thing that’s been found was the BJ. I hope that in a couple decades you’ll be willing to admit it was a gigantic waste of taxpayer money..

    Just because you wish there was fire doesn’t make it so.

  14. Matt says:

    Oh and one email that was improperly marked of which James Comey himself said he wouldn’t of known was confidential.

    The retroactively classified stuff is bullshit and irrelevant. The classification system itself is ridiculous as people can just declare whatever they want to be classified. Even if it’s a report showing their department in a bad light. Just linking to a news report about the drone program can cause an email to be considered classified. It’s ridiculous but these are details and people don’t do details.

    Bush and Rove delete +6 million emails during an investigation of the attorney general scandal and that’s perfectly fine. A former SoS used freaking AOL one of the least secure email platforms out there during his term and deletes all his emails and of course that’s perfectly fine too. You just have to have to belong to the proper political party.

  15. An Interested Party says:

    The Founders would have been appalled at someone running for President while under criminal investigation. The Founders would also have been appalled in general by Bill Clinton, who certainly resembles a man with a talent for low intrigue and the little arts of popularity.

    Compared to Donald Trump? You would be wise to remove that beam from your own eye before you cast aspersions on the Clintons…

  16. wr says:

    @Matt: Oh, and guess what? Remember how Giuliani kept shrieking about how Hillary was completely bought by corporations and foreign governments because she got $250K per speech from them and to make it worse she wouldn’t release the transcripts?

    Guess who routinely got $200K per speech from corporations and foreign governments and had in his contracts no transcripts could ever be released?

    I think there are a few reasons why we won’t see AG Rudy…

  17. HarvardLaw92 says:

    @MBunge:

    Not for nothing, but move on man. You dislike Clinton; we get that, but Jesus, enough already. No need to segue EVERYthing into an opportunity to vent your spleen …

    🙄

  18. Pch101 says:

    @Console:

    Abraham Lincoln won a plurality in the 1860 election. I don’t see how the electoral college had anything to do with the Civil War.

    Some sort of showdown over slavery was inevitable because it was a divisive policy that had to be set aside in order to get the Constitution ratified. If anything forced the issue, it was the expansion of the union and the conflict over whether new states would permit slavery. (Both sides understood the implications of allowing or forbidding slavery as the country added territory.)

  19. HarvardLaw92 says:

    @Pch101:

    There is a Scene in Amistad where Anthony Hopkins, as John Quincy Adams, calls the impending Civil War “the last battle of the American revolution”. I absolutely agree with that sentiment. It resolved through war what the framers had been unable to resolve by any other means.

  20. Kylopod says:

    @Pch101:

    and we usually defer to majority rule (although obviously not in this particular election.)

    The EC doesn’t ever defer to the majority; rather, its choice usually coincides with that of the majority (or more accurately, plurality). There is nothing in the current system prescribing that the EC has to pay the slightest attention to how the majority of the national electorate voted. And it never does. It’s just that in practice the winner of the popular vote almost always happens to be also the winner of the electoral vote.

    One point that Hendrik Hertzberg has made (Hertzberg has been one of the most vocal critics of the EC and advocates of electoral reform among mainstream pundits; alas, he’s in his 70s and it appears he hasn’t written anything since last year, which is a shame, as his perspective on the 2016 outcome would be valuable) is that the biggest problem with the EC isn’t these occasional elections where the popular-vote loser becomes president, but rather the fact that the system affects the entire way candidates structure their campaigns in every election, where they focus on “battleground” states and literally ignore the rest of the country.

  21. Just 'nutha ig'rant cracker says:

    @Steven L. Taylor: Original Intent is a sham designed to explain away the fact that one side or the other wants to game the system in some way that favors its constituency. The fact that the Right seems to be in more need of gaming the system is simply happenstance.

  22. @Kylopod:

    is that the biggest problem with the EC isn’t these occasional elections where the popular-vote loser becomes president, but rather the fact that the system affects the entire way candidates structure their campaigns in every election, where they focus on “battleground” states and literally ignore the rest of the country.

    Indeed.

  23. @Just ‘nutha ig’rant cracker: Well, given the nature of conservative thinking, it is more than happenstances that original intent arguments are more likely to be deployed by the right.

  24. Kylopod says:

    Here’s an article by a political scientist that gets into even more detail about how the EC wasn’t part of some grand design, but a cobbled together compromise whose reasons have mostly become irrelevant today:

    http://www.rawstory.com/2016/11/a-political-scientist-explains-why-theres-no-reason-to-keep-the-electoral-college/

  25. Bob@Youngstown says:

    @MBunge: Hey Mike, Just gotta get this off.

    Isn’t the IRS investigating Trump’s tax returns? Sure, you can say they are just auditing to see if his attorneys are competent in arithmetic, but isn’t the point of an IRS audit to establish whether or not the taxpayer has complied with all the relevant laws.

    From that perspective Trump is under Federal Investigation.

  26. Franklin says:

    @MBunge:

    The Founders would have been appalled at someone running for President while under criminal investigation.

    Investigation, eh? So you’re telling me that the Founders didn’t believe in “Innocent Until Proven Guilty”? That would be news to just about every scholar of U.S. history, so I urge you to contact them immediately with your fascinating theory.

  27. Pch101 says:

    @Kylopod:

    The EC doesn’t ever defer to the majority; rather, its choice usually coincides with that of the majority

    Not at all. Electors are pledged to a particular candidate, and are usually selected because of their support for that candidate. So it isn’t exactly a coincidence that an elector will almost always vote for the candidate to whom that elector is pledged, as that elector probably wants that candidate to win.

  28. Pch101 says:

    @HarvardLaw92:

    America: Kicking the Can Down the Road Since 1787.™

  29. Just 'nutha ig'rant cracker says:

    @Steven L. Taylor: Okay, I’ll go from “happenstance” to “deliberate and cruel disdain for the rights of any not in their select cadre.” Easy peasy.

  30. Kylopod says:

    @Pch101:

    So it isn’t exactly a coincidence that an elector will almost always vote for the candidate to whom that elector is pledged, as that elector probably wants that candidate to win.

    That isn’t what I was talking about. What I was saying was that the electors don’t base their “choice” on who won the national popular vote. I may have misunderstood you, but that’s what I assumed you were referring to as well when you talked about electors “usually defer[ring] to majority rule (although obviously not in this particular election).” If by “majority rule” you weren’t referring to the national popular vote, what exactly did you mean?

  31. The Electoral College COULD be used for the purpose of balancing regional representation. But that was not it’s original purpose and frankly, as it exists today, is a lousy way of doing it. Having TWO losers of the popular vote in the White House in 16 years can be dangerous, and there is always the problem of groups of interest in Swing States.

    I´d like to see people pointing to Brazil – where basically two states decides the President – instead of pointing out to some slave owners that died two hundred years ago. That´s a better argument for the EC.

  32. Eric Florack says:

    @Steven L. Taylor: so, none of the blame goes to those who pushed for Hillary Clinton?
    As you’re probably aware, I am not a Trump supporter on any level. In fact the only thing to be said for him is he’s not the septic Hillary Clinton.

    But don’t tell me Trump would have won absent her being his opposition.

  33. Bob@Youngstown says:

    @Kylopod:

    What I was saying was that the electors don’t base their “choice” on who won the national popular vote.

    Do you dispute that a state’s electors are required to choose the winner of the STATE popular vote?

    That does not sound like a “deliberation” of an electing body but rather “rubber-stamping” of a contest.

  34. Jenos The Deplorable says:

    One thing I’ve learned in discussions of alternate history scenarios is that there’s no such thing as “one change.” The notion that Hillary would have won had the election been a simple popular election is based on a very, very flawed assumption — that Trump would have run the exact same campaign.

    Trump went in knowing fully the rules of the game, and played that game to win, scoring about 57% of the electoral vote. Had the election been a simple popularity contest, he would have campaigned differently. And considering how thoroughly we won under the existing rules, I feel pretty comfortable that he would have won that contest, too.

    As for an argument in favor of the electoral college, I would note that it is a compromise between a strictly popular vote and a state-based system, with the more populous states getting a weighted advantage over the lesser-populated states. It’s not proportional, but it is very much in their favor. California has about 66 times as many people as Wyoming, but only 18 times as many electoral votes.

    The weighting forces the candidates to focus their attention on the bigger population centers, but they still have to make efforts towards more Americans.

  35. Rick DeMent says:

    @Jenos The Deplorable: @Jenos The Deplorable:

    The notion that Hillary would have won had the election been a simple popular election is based on a very, very flawed assumption — that Trump would have run the exact same campaign

    .

    This assumes that Clinton would have run the exact same way as well. She would be running up the score in CA, IL, NY and other pleases where most of the people live. Hell she would have destroyed Trump becase she would simply have to rotate being in the 10 or 15 largest cities and Trump would have to run around in 5 times the number of lower density communities.

  36. Pch101 says:

    @Kylopod:

    Electors almost always rubber stamp the preferences of their voters, instead of second guessing the voters and serving as a check and balance as was contemplated in Federalist 68. That’s deference for you.

  37. Dave Moberg says:

    No mention made of “winner take all” in states. States (like my native Nebraska) can apportion their electoral college votes as they see fit.

  38. Bruce Henry says:

    As I understand it, there are slates of electors pledged to each candidate, and when you vote for, say, Trump, you are actually voting for a slate of electors pledged to Trump, who then cast their electoral votes for Trump as pledged. If Hillary’s slate wins, then a DIFFERENT slate of electors casts THEIR votes for Hillary as pledged. That’s why, if an elector casts his vote for another candidate, he/she is called “faithless.”

    So they don’t exactly “rubber stamp” the voters in their states. They do as they are elected to do.

    Am I wrong?

  39. HarvardLaw92 says:

    @Bruce Henry:

    There is essentially no way to force an elector to vote a certain way. You can fine them after the fact, or even potentially jail them, but the system was originally designed to allow them the freedom to override the popular vote if they felt it necessary to do so.

    This is mostly moot, because parties select rabid partisans as electors, but theoretically speaking, they could elect Clinton president if they got a wild hair and decided to do so. Truthfully, they could elect ANYbody as president, regardless of whether that person was even on the ballots or not to begin with.

  40. HarvardLaw92 says:

    @Jenos The Deplorable:

    with the more populous states getting a weighted advantage over the lesser-populated states.

    Backwards, which considering the source isn’t surprising.

    The electoral college system PENALIZES more populous states by shifting voting power away from them to the benefit of less populous ones.

    California, for example, does get 55 electoral votes, HOWEVER, if those electoral votes were distributed to states proportionate to population, it would get 65 (rounded down).

    Wyoming, on the other hand, gets 3 electoral votes, when it should get only one (rounded up)

    The net result is that a vote in Wyoming carries roughly 3.62 times as much weight in deciding the presidency as a vote in California does.

  41. Just 'nutha ig'rant cracker says:

    @Bob@Youngstown: Are you aware that the identity of the electors sent from you state depend on which candidate you voted for? I ask because your comment sounds like you aren’t. If my reading skills are bad, please forgive me.

    And in the state in which I live they’re not so required, BTW.

  42. Just 'nutha ig'rant cracker says:

    @Jenos The Deplorable:

    And considering how thoroughly we won under the existing rules, (emphasis added)

    I thought you weren’t a Trump supporter, just a Never Hillary… Freudian slip?

  43. HarvardLaw92 says:

    @Bob@Youngstown:

    Do you dispute that a state’s electors are required to choose the winner of the STATE popular vote?

    Yes, because they aren’t.

  44. Pch101 says:

    @Bruce Henry:

    So they don’t exactly “rubber stamp” the voters in their states. They do as they are elected to do.

    Yes, electors are pledged to a specific candidate. I noted that above.

    However, Federalist 68 contemplated that electors would also serve as a check and balance, not just follow orders. Indirect voting was supposed to be provide protection from the mob.

  45. Surreal American says:

    @Andre Kenji de Sousa:

    The Electoral College COULD be used for the purpose of balancing regional representation.

    Regional representation already abundantly exists in the Senate.

  46. @Surreal American: In Brazil, I see people from MEDIUM sized states complaining that the people from the Large States(Basically Two, Minas Gerais and Sao Paulo) chooses the President, people in small states chooses the Congress and they choose nothing.

    Besides that, people living in least populated areas of California and New York would be ignored by the candidates and be underrepresented in Congress.

  47. SC_Birdflyte says:

    @HarvardLaw92: Fascinating, although I rather doubt that the real John Quincy Adams ever said anything of the sort. The Amistad case occurred well before the Mexican-American War, from which the territorial acquisitions resulted that helped render the conflict (in Seward’s words) “irrepressible.”

  48. Kylopod says:

    @Pch101:

    Electors almost always rubber stamp the preferences of their voters

    “Their voters”…in their state. They do not rubber stamp the preferences of the entire country. That’s all I was saying. If you were not saying that electors defer to the national popular vote, then what possibly did you mean by your statement “we usually defer to majority rule (although obviously not in this particular election.)”? Apart from those two Washington State electors who threatened to go rogue this year (which would make no difference to the outcome at this point), nobody in the EC appears to be planning to buck the majority or plurality vote in their own state.

  49. Jenos The Deplorable says:

    @HarvardLaw92: Backwards, which considering the source isn’t surprising.

    You’re being a pedantic twit. Which, I realize, is your forte, but still…

    I used “weighted” as a synonym for “disproportionate.” The more populous states have greater say, but not in proportion to their greater populace. They get more say, but the smaller states aren’t completely marginalized — which they would in a purely popular vote contest.

    @Just ‘nutha ig’rant cracker: I thought you weren’t a Trump supporter, just a Never Hillary… Freudian slip?

    Typo from typing in haste while running out the door. But I did vote for the guy, so yeah, I’ll take on the burden of being called part of the winning team.

    Just remember — I voted for Cruz in the primary, while Hillary and the DNC worked like hell to make sure Trump won the nomination, so she’s more responsible for his election than I ever could be.

    I think I’ll send her and the DNC a thank-you card…

  50. HarvardLaw92 says:

    @Jenos The Deplorable:

    You’re being a pedantic twit. Which, I realize, is your forte, but still…

    I used “weighted” as a synonym for “disproportionate.” The more populous states have greater say, but not in proportion to their greater populace. They get more say, but the smaller states aren’t completely marginalized — which they would in a purely popular vote contest.

    In other words:

    Blah blah blah. Blah blah. I’m wrong but I’ll never admit it blah blah blah.

    Shouldn’t you be at work? Some poor soul is waiting for their pizza delivery.

  51. gVOR08 says:

    @Steven L. Taylor: I’ve mentioned in a couple of earlier comments Larry Bartels’ simple presidential election model. There are dozens (hundreds?) of models that explain elections in terms of basics, ignoring all the policy and horse race stuff. Bartels model is particularly simple and seems to fit results pretty well. It predicts the winning margin using only two variables, incumbent party’s terms in office and change in the second and third quarters in Real Disposable Personal Income per Capita.

    I said “predicts”, but it doesn’t, because preliminary Q3 income data isn’t available until too late. Bartels didn’t do this to predict, but to understand and explain what drives elections. (I’m talking to the room, Dr. T, you’re a pro with this stuff, I’m a curious amateur.) What he concludes is that people vote their pocketbooks, but in about the most shortsighted, “myopic” way possible. They remember nothing beyond six months and vote only on how they feel right now. The quarterly income figures show a lot of noise, even in good times the Q2 and Q3 rates of change may be low or negative, it’s kind of a coin flip, no matter how good the economy may be doing longer term. I’ll quote at length the conclusion from Bartels’ 2004 paper, Musical Chairs.

    We talk Thomas Jefferson’s language, albeit in the bowdlerized form that has come down to us through the Populists and Progressives. More democracy and direct popular control are thought to be always good. In fact, sometimes we are foolish enough to take our own oratory seriously. That is why some states have acquired a cheap and manipulable initiative process that allows interest groups to bypass the legislature, and why they have adopted wide-open primaries and easy recall elections that bypass the parties and put country-and-western singers, B-list actors, wrestlers, body-builders, and mountebanks of all persuasions into office. Our self-deceptions about our own wisdom sometimes have real consequences, particularly at the state level, where elite safeguards are likely to be less institutionalized.

    In reality, though, we live in the prosperous, industrialized, urbanized, and powerful country that Alexander Hamilton foresaw, and most of the time we operate the national government as he thought we should. Elites run our national affairs. From time to time they make serious, even tragic, errors; that is an inevitable fact of political life. But more often than not, they save us from ourselves. Thus we continue to enjoy the benefits of Hamilton’s government, which we cheer and support on the Fourth of July because we see it as Jefferson’s yeoman democracy. If we can go on kidding ourselves like that, what combination could possibly be better?

    The point to this long post is that a) it’s Hamiltonian, and b) I disagree with your comment. The pretense that the Electoral College is the wisest men selected in each state assembled to select the wisest and most capable men as prez and veep died once we ran out of George Washington. And the electorate are a box of rocks. (Who do I owe credit to for that line?) And they always have been. The electorate vote on some perceived tribal affiliation and the outcome has a large random component based more on turnout than anyone changing their vote. We’ve gotten by all these years because the parties have mostly nominated moderate, capable people; then we flip a coin and end up electing a moderate, capable prez. The Republican Party failed in their duty to gate-keep. I place the blame squarely on the Party. The electorate are no worse than usual.

    (None of this is to say that I personally believe the current almost even polarization can’t change. If 35% of Rural Working Class Whites ™ could be gotten to vote for Dems, where their interests are better served, instead of 30%, it could be a new ballgame. I reserve the prerogative of commenting on how the Dems are too tied into the 0.1% and the Rs have become an existential threat to the Republic. )

  52. HarvardLaw92 says:

    @SC_Birdflyte:

    I have my doubts about the exact language, but Adams was a staunch abolitionist who took great delight during his 17 year career in Congress in pushing the issue of slavery to its breaking point. He had spoken, as had many others, of a looming civil war long before this case in 1841. His own writings make it pretty clear that he involved himself in the case much more to use it as a stage from which to push the slavery issue than out of any individual concern for a group of appellants.

    So yea, maybe not those exact words, but it would have been just like him to have said something to their effect.

  53. gVOR08 says:

    Third, this does not mean, however, that the electoral college is indefensible, it just means that any defense of it requires arguments that have nothing to do with the Framers of the Constitution.

    VOX had a good interview with Akhil Reed Amar, professor of law and political science at Yale, who makes a good case that the Electoral College was a device to protect slavery.

    @MBunge: Politics got real dirty real early. The Founders would have had no difficulty recognizing a politically motivated investigation for what it was.

  54. Pch101 says:

    @Kylopod:

    They do not rubber stamp the preferences of the entire country.

    I never claimed that they did.

    You have an unfortunate tendency to lob strawman arguments in my direction, and I find it to be tedious. Give it a rest.

  55. An Interested Party says:

    And considering how thoroughly we won under the existing rules…

    As if Trump, Ryan, and the rest of their gang is going to do anything to help you or people like you…

  56. Kylopod says:

    @Pch101:

    You have an unfortunate tendency to lob strawman arguments in my direction

    You have an unfortunate tendency to project your own tendencies onto others. Which is what you’re doing now.

    This whole skirmish began with your statement “In practice, we’ve virtually eliminated faithless electors and we usually defer to majority rule (although obviously not in this particular election.)” What you meant by “majority rule” was unclear in this sentence. Perhaps you merely meant state majorities; however, that final parenthetical “although obviously not in this particular election” suggested you were referring to national majorities, since the most notable feature in which this election differed from most elections (especially in the context of this thread) is that the winner of the national vote lost the electoral vote.

    Thus, I interpreted you to be saying that the electors usually defer to the national majority. That may have been an incorrect interpretation of what you meant to say, but it wasn’t an unreasonable one, since your statement was confusing and ambiguous–and judging from Steven Taylor’s response, I wasn’t the only one to think so.

    You had several opportunities to clear up the confusion, and instead you only compounded it. In my first response I noted that the EC doesn’t pay the slightest attention to how “the majority of the national electorate voted.” In your rebuttal, you ignored this statement of mine and acted as though by “majority” I meant state majority–despite the fact that I had explicitly stated otherwise.

    In my next reply, I clarified further that I had interpreted your original statement as having been referring to the national popular vote, not the statewide vote. I admitted I may have misinterpreted you, and I gave you the full opportunity to explain what you meant. You did not do that; instead you simply repeated your point “Electors almost always rubber stamp the preferences of their voters,” as if I was unaware of that basic fact.

    And in your latest reply, you still haven’t explained what you meant in that initial comment. Instead, you have the chutzpah to state that I’m lobbing strawman arguments when in this very thread you’ve been repeatedly twisting my words around and “responding” to arguments I never made. And believe me, I’m not the first commenter to notice this about you.

  57. Pch101 says:

    @Kylopod:

    That’s a rather verbose way of saying that you didn’t understand a rather simple point: Electors are rarely faithless, so voters almost never have their decisions challenged by them.

    Anyone who attended an American middle school knows that each state has its own electors and that the US essentially has 51 presidential elections, so no need to restate that here.

  58. Kylopod says:

    @Pch101:

    That’s a rather verbose way of saying that you didn’t understand a rather simple point: Electors are rarely faithless, so voters almost never have their decisions challenged by them.

    You’re right. I didn’t understand that point until you educated me about it. And all this time I was under the impression that electors functioned as independent actors who vote their conscience rather than based on the intent of the voters who chose them. Thank you for setting me straight on this point.

    Except just a a couple of weeks ago, in a thread in which you participated, I wrote: “Nowadays, of course, the electors no longer function as independent actors who come together to choose a president; they’re pledged in advance to support their party’s nominee and may face legal consequences for failing to do so (as the recent controversy in Washington State highlights).”

    The fact you’re seriously trying to argue I’m somehow ignorant of all this is a measure of your desperation. Keep digging.

  59. Bob@Youngstown says:

    @Just ‘nutha ig’rant cracker: Yes, I said that poorly. In Ohio, although (for example) Trump’s name appears on the ballot but Ohio voters are actually voting, en mass, for 18 people whose names are NOT on the ballot.

    The point I was trying to make was that this group of 18 are required by state law to cast ballots for a predetermined candidate —- there are no deliberations involved with their actions.

    Hardly what Hamilton describes as “A small number of persons,… will be most likely to possess the information and discernment requisite to such complicated investigations.”

    So (tongue-in-cheek)….. when does the “complicated investigation” begin?

  60. Bob@Youngstown says:

    @HarvardLaw92: Well I see your point, however in my state the 18 electors are required to each cast their votes for a specified person, that person not so coincidentally, is the person that a majority of the popular voters thought they were voting for . To do otherwise they become faithless electors and are in violation of state law.

    Regardless of this tangling over legalese, the voters in the general election for president are NOT voting for representatives to a deliberative body who will be conducting investigations leading to the ultimate selection of a president.

  61. HarvardLaw92 says:

    @Bob@Youngstown:

    Understood, but the position of elector is created and empowered by Article 2, as amended by the 12th Amendment. States are given the power to appoint them, but their power to vote is conferred in absoluto by the federal constitution. Due to the supremacy clause, no state constitution / state law can override that power.

    Short version: OH can pass whatever laws it likes, but it can’t force a federal elector to vote a certain way. Were it to try to enforce such a law, it would without doubt find itself subject to a federal injunction barring enforcement.

    It can certainly attempt to punish such an elector after he/she has voted, but it has no power to force them to vote for anything.

  62. Pch101 says:

    @HarvardLaw92:

    Ray v. Blair permits states to impose pledge requirements on their electors. So I would not expect your argument to fly.

    If there is a serious desire to inspire electors to be faithless, then it would be wise to find a benefactor who will agree to pay the fines and fund the legal defense of the individual electors. Perhaps you’ll end up with a few, which would provide a symbolic win of sorts against Trump even it it isn’t enough to change the election itself.

  63. @Pch101: I agree with @HarvardLaw92, it is certainly possible for states to punish electors for their votes ex post, but they cannot force the elector to voter a certain way.

    The constitutional power to cast an electoral vote is with the elector, not the state.

  64. But the strongest inducement for electors to remain faithful is for the electors to be party loyalists, which is the case.

  65. Pch101 says:

    @Steven L. Taylor:

    Given that the Supreme Court has already decided that states can impose pledge requirements on electors, I would presume that the Court would be willing to take that argument to its logical conclusion and allow other similar types of restrictions, as well as reasonable penalties for violating those laws. Allowing the law to be imposed but forbidding the law to have any teeth would be inconsistent.

  66. wr says:

    @Jenos The Deplorable: ” But I did vote for the guy, so yeah, I’ll take on the burden of being called part of the winning team”

    Jenos and Trump! We haven’t seen such a winning team since turkey and axe!

  67. HarvardLaw92 says:

    @Pch101:

    Ray dealt with the permissibility of a state bar on seeking candidacy as an elector based on refusal to accede to a pledge to support a party’s nominee. Specifically, Alabama chooses electors by direct ballot, and Blair was being denied a spot on the primary ballot as a potential elector based on that refusal.

    The crux of the ruling in Ray is that states are permitted to impose pledges as a prerequisite to seeking to serve as an elector. It does not address the merits of whether or not an elector, once chosen, enjoys freedom under Article II / Amendment 12 to vote as he/she chooses, beyond acknowledging that the question exists:

    even if such promises of candidates for the electoral college are legally unenforceable because violative of an assumed constitutional freedom of the elector under the Constitution, Art. II, § 1, to vote as he may choose in the electoral college, it would not follow that the requirement of a pledge in the primary is unconstitutional.

    Indeed, the court has never ruled on the constitutionality of state laws seeking to force an elector to vote a certain way or laws seeking to punish them if they fail to do so.

    21 states impose no requirement or penalty whatsoever. The other 29 (and DC) impose punitive measures which only come to bear after an elector has voted. The small number of states (three the last time that I checked) which actually have laws on the books proposing to void the vote(s) of faithless electors have never utilized them.

    To wit, however, there has never been an instance of a faithless elector being subjected to legal penalties for exercising his/her constitutional prerogative, and – more to the point – there has never been an instance in which the vote(s) of faithless electors were voided or changed in any way other than by the individual choice of the elector(s) themselves.

    Presumption is a dangerous game. I can, however, tell you with certainty that there are three sitting Supreme Court justices who agree with my argument. Whether it would garner five is the magic question, but the more important goal is to get it before the court in the first place. My goal isn’t to swing an election. It’s to cripple the EC system itself.

  68. Pch101 says:

    @HarvardLaw92:

    I get your argument, but it isn’t necessarily consistent with the sentiment behind the case law that gives states some authority over regulating electors.

    And it isn’t going to matter if no case arises from it. The only way to have a case is to get some electors to be faithless and for the state(s) to take action against them.

    So first things first. Is anyone making a serious effort to encourage any of the electors to vote against Trump? I haven’t heard about one, although perhaps there is something underway that has escaped my notice.

    It’s not enough to ask them. The electors who are serious about it will need lawyers and cash to defend their cases.

  69. HarvardLaw92 says:

    @Pch101:

    The extant case law permits state to regulate who gets to be an elector.

    The case law regarding to what extent, if any, states are permitted to dictate how an elector may exercise a constitutionally prescribed role is murkier – because it literally doesn’t exist.

    Which brings me to the as yet unrevealed ars imperatoria – what’s to stop a well heeled person with the cash and the will from recruiting persons to seek out service as an elector with the specific intent of those persons then casting faithless votes (and the promise that their legal interests will be well represented in the aftermath)? It would engender chaos.

    which would buy us either of two potential outcomes – either the states do nothing, and we’re therefore notified that it’s open season on the EC system, or they push the issue in court, which allows us to get the issue right where it needs to be.

  70. Pch101 says:

    @HarvardLaw92:

    Let’s be pragmatic here. If you’re an attorney in a credible law firm, then you are in an ideal position to locate some other attorneys who could defend electors who would be faithless and put this to a test.

    If you can find those attorneys, then you would need to build a team that can directly lobby electors, as well as some donors to fund what could prove to be a costly bit of litigation. Electors who might be tempted would be more likely to participate if they know that they will be protected.

    Go give that a shot. It’s one thing to talk about it, it’s another thing to do something about it. And you may actually be in a better position than most people in the US to do something about it.

    As an added bonus, if it actually is possible to create a constitutional question about this that the case might be expedited so that it is heard with only eight people on the court. So the time is now.

    (No, I’m not actually expecting it to work. But it doesn’t have to be a complete win in order to have value. Just stirring up the muck would produce some benefits by reminding the public that this president has no mandate.)

  71. @Pch101: Yes, the Court allows for punishing unfaithful electors–I am not disputing that.

    What I am saying is that there is nothing that the states can do to force the actual vote of the elector. The vote cast by the elector is constitutionally binding regardless of whatever punishment is dealt out after the vote. So, one supposes a punishment grave enough would deter unfaithfulness, but it cannot direct the vote itself.

  72. Bob@Youngstown says:

    @HarvardLaw92: @Pch101: @Steven L. Taylor:
    One of the things I appreciate from OTB is how much I learn, and the realization I’ve got so much more to learn.

    Thanks to all and Happy Thanksgiving.