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'A government of laws, and not of men': The Electoral College

By Nancy Salvato
web posted May 2, 2011

In Federalist 51, James Madison writes,

"In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions."

Madison's concern is that, even though the people are sovereign, hold the ultimate authority over the government, there need be additional mechanisms to assist in preventing the possibility of power becoming consolidated within a particular faction of those charged with governing on our behalf. Should power become consolidated under one entity, and the faction abuse its authority, the people would be ruled through tyranny, denying them their ultimate sovereignty unless they take drastic measures to remove the authority from power.

Perhaps what Madison is saying here is better understood through an analogy of what can happen when those charged with looking after our best interests give greater concern to selfish motives. Until a child grows into an adult, he or she cannot make all the decisions associated with being grown up. In such a case, all power is vested in one or two parents who are expected to make decisions in the best interest of the child. Sometimes one or both parents make really bad decisions that can cause irreparable damage to a child. This might require a drastic measure, such as a child protective services agency stepping in to remove the child from the situation. James Madison feared that those in a position of power may not always put our rights first. This problem would become much worse, and more drastic measures would need to be taken, when all authority is vested in one entity that is in charge of all decision making, as in the situation of a child with abusive parents.

The Framers built a number of checks and balances into the government to prevent authority from being held by one entity where it could quickly develop into tyranny; kind of like the fail safe systems we put in place to protect ourselves and others from possible dangers. Did you ever wonder why lawnmowers have a hand-closed lever that must be held down at all times? When it's released, the blade stops or the motor shuts off automatically. There are many examples of fail safes, they shut down reactors in nuclear plants, automatically brake some of the more expensive cars when they're too close to another object, prevent missile launches from deploying, prevent children from being able to open cabinets with hazardous materials, prevent surges of electricity from harming electronic equipment. All sorts of mechanisms can be employed to help prevent something from going terribly wrong, in a rapid progression.

In Federalist 51, Madison continues,

"In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit."

What Madison is explaining here is that the House of Representatives would be chosen by the people from their congressional district. As a result, they would protect the people's local interests. The Senate, on the other hand, would be elected by state legislatures, thereby protecting state's interests. Authority and interests would be vested and represented in different bodies. The 17th amendment, however, instituted direct popular election of US Senators. It took state's direct representation out. It took away a very important check on the national government, on national power.

In "Democracy" is not a Definitive Argument Against the 17th Amendment, Todd Zywicki explains,

"Whereas House members were considered representatives of the people, senators were considered ambassadors of their state governments to the federal government and, like national ambassadors to foreign countries, were subject to instruction by the parties they represented (although not to recall if they refused to follow instructions). And they tended to act accordingly, ceding to the national government only the power necessary to perform its enumerated functions, such as fighting wars and building interstate infrastructure."

Senators elected by legislatures were to represent the interests of their states, conducting negotiations on behalf of and between the states. They then had to reconcile the interests of the states and the interests of the people as a nation. When both branches are elected by the people, they are representing the same interests and negotiating for federal laws and monies to benefit their constituents' special interests, instead of balancing state interests against national interests.

Zywicki cites Federalist 62 to further explain bicameralism.

"Bicameralism – the division of the legislature into two houses elected by different constituencies – was designed to frustrate special-interest factions. Madison noted in Federalist 62 that basing the House and Senate on different constituent foundations would provide an "additional impediment...against improper acts of legislation" by requiring the concurrence of a majority of the people with a majority of the state governments before a law could [sic] enacted. By resting both houses of Congress on the same constituency base — the people — the Seventeenth Amendment substantially watered down bicameralism as a check on interest-group rent-seeking, laying the foundation for the modern special-interest state."

With passage of the 17th Amendment, one of the Founder's fail safe mechanisms was eliminated. Thomas Jefferson would have taken great concern with the removal of such a failsafe. He believed,

"When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated."

Zywicki explains that the Founders were dead set against any centralized power, they feared concentration of power. "It [The U.S. Constitution] promoted bicameralism and federalism. The goal [of a constitutional republic] is the preservation of liberty and the frustration of special interest faction, not the maximization of democracy."

In Democratizing the Constitution:The Failure of the Seventeenth Amendment, C.H.Hoebeke writes, "The Constitution's framers saw the will of the people as a force to be restrained and refined, not unleashed and encouraged." Furthermore,

"A system of government based solely on equality of political expression, therefore, had the paradoxical result of creating another form of inequality, because it gave the majority an absolute power over the rights of the minority. 'Who,' asked Madison, 'would rely on a fair decision from three individuals if two had an interest opposed to the third?' Whether it was three or three hundred million, impartiality would not be increased, 'nor any further security against injustice be obtained, than what may result from the difficulty of uniting the wills of a greater number.'"

The video, A Republic v a Democracy provides an excellent explanation as to why the goal of a constitutional republic is not to maximize democracy. The flaw in Democracy is that the majority isn't restrained. In a republic, the power of government is limited and the rights of the governed aren't subject to majority rule but to the law. The founders did everything they could to keep us from having a democracy. They understood that democracy can lead to tyranny.

Democracy >> Mob Rule >> Anarchy >> Tyranny, under an Oligarchy

This always brings to mind the novel, Lord of the Flies, in which the boys who are trapped on an island, begin by democratically voting for a leader, one faction of the group foments anarchy, and in the end, the group is ruled through tyranny instigated by the scariest, strongest boy. At no time is there any law under which all are pledged to uphold.

Most salient, in Zywicki's defense of the Founders methods for selecting the members of each branch of government, is his understanding that, "What matters is not whether a given method of selecting governmental officials is more or less democratic, but whether it will safeguard the constitutional functions bestowed upon each branch and conduce to their competent execution."

By changing the method of selection for senators, through passage of the 17th Amendment, we've undermined the authority of the states. Federalism was instituted to safeguard our republic. Madison elaborates in Federalist 51:

"In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself."

While most citizens in this country are required to pass a test on the U.S. Constitution, sadly, a tremendous importance is not placed on learning with comprehension the collective experience and knowledge influencing the deliberations of the 55 delegates enjoined in the Constitutional Convention that long, hot summer in Philadelphia in the year 1787. Yet the context from which they debated and compromised over each section of each article to reach consensus on what would be included in the final document is critical to being able to understand the reasoning behind and justification for the fundamental law of our land.

As Zywicki so succinctly describes,

"The Framers provided that the power of various political actors would derive from different sources. While House members were to be elected directly by the people, the president would be elected by the Electoral College. The people would have no direct influence on the selection of judges, who would be nominated by the president and confirmed by the Senate to serve for life or 'during good behavior.' And senators would be elected by state legislatures."

One cannot help but notice, as James R Whitson explains in President Elect, "only the House of Representatives was voted on by the people."

What becomes clear, when one studies the Founders deliberations, is that every method of selection was to protect the rule of law and to prevent rule by majority, democracy. So a movement to elect the president through popular vote, rather than through the Electoral College, is extremely disconcerting.

As Whitson points out, "The 17th Amendment took the states out of the federal legislature and indirectly out of the federal judiciary (they had a vote in the Senate on judicial appointments). By getting rid of the Electoral College, the states would lose their power over the third branch of the government, the executive branch."

How does the Electoral College work on behalf of the states' rights? Whitson explains:

"The Electoral College helps prevent a candidate from pandering to one region, or running up their votes in certain states. In the Electoral College system, once you win a majority of the votes in a state there is no need to get more. In a direct election, the more votes in a state the better. Here's an example why this can be a bad thing. Massachusetts is very Democratic. The Democrats will almost always easily win 50% of the vote. In the Electoral College system, the Democratic candidate visits a few times to make sure he'll win and then moves on to other states. In a direct election, the Democratic candidate would spend a lot more time in Massachusetts trying to push his vote total to 70-80%. In a close election, why visit a state where the polls say it's 50-50%, spend a bunch of money and time, and maybe get 1-5% more votes when you can go to a safe state that says you're leading 60-40%, spend less money and effort, and maybe get 5-10% more votes. In direct election, candidates would spend more time in states they're easily going to win in order to run up their vote total. With the Electoral College, candidates have to actually fight the close states."

The Electoral College prevents candidates from ignoring smaller states in favor of big metropolitan areas. In a direct election, Chicago IL has twice as much voting power as the entire state of New Hampshire.

If there were direct election, Ken Burnside explains in Should the electoral college be abolished?

"A political candidate need only appeal to the 91 percent of the population that lives in five metropolitan areas: Los Angeles/Orange County/San Diego County (78 million people), the Boston-Washington Corridor (106 million people), Chicago and surrounding areas (38 million people) and Houston, Texas (33 million people). In a direct election, only the residents of those cities matter in choosing the Presidency. The person who carries those precincts carries the country. While the current system is still heavily weighted towards certain states (New York, California, Florida and Texas chief among them), the disparity of electoral college votes is merely 27 percent of the total. A candidate, as a result, has to appeal to a broader range of constituents, and cannot simply be beholden to the larger urban areas. This results (in theory) in a President who represents all of America."

The Framers had compelling reasons for dividing political power, reasons which are still applicable today. As Hoebeke explains, "While all political power ultimately derived from the people, each branch answered in an immediate way to an essentially different constituency from that of the others, and was thus considered less liable to fall victim to the same errors, the same impulses, or the same corrupting influences."

In other words, as Hoebeke correctly points out, the U.S. Constitution fragments…

"...the power of the majority, deliberately supplying 'opposite and rival interests' as a more reliable guarantee of individual freedom and minority rights than could reasonably be expected from merely relying on the good will of the superior number of citizens."

When citizens understand the reasons for the Electoral College, they can understand why direct election would undermine a Constitutional Republic. Enactment of such legislation might sound like a good idea, but, in the end it would lead to majority rule and our rule of law would no longer protect the rights of our citizenry. This is because majority rule inevitably leads to tyranny. To borrow the words of the rock band R.E.M., it would be, "the the end of our world as we know it." ESR

Nancy Salvato is the President and Director of Education and the Constitutional Literacy Program for Basics Project, a non-profit, non-partisan 501 (C) (3) research and educational project whose mission is to re-introduce the American public to the basic elements of our constitutional heritage while providing non-partisan, fact-based information on relevant socio-political issues important to our country. She also serves as a Senior Editor for The New Media Journal. Copyright © Nancy Salvato 2011

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