Four current opinions on the Electoral College
Four current opinions on the Electoral College
A recent flurry of published opinions on the Electoral College has created a valuable debate on a central issue of the Constitution and of subsequent American history: the Constitution's provisions relating to slavery. In the columns that follow Professors Sean Wilentz of Princeton, Akhil Reed Amar of Yale Law, and Alan Singer of Hofstra each explore the origins and purposes of the Electoral College, and political analyst John Avlon provides broader historical perspective and details on a current movement to reform the Electoral College. These four columns — in abridged forms — are the subject of Historic Matters, vol. XII. = = = = = = The Electoral College Was Not a Pro-Slavery Ploy There is a lot wrong with how we choose the president. But the framers did not put it into the Constitution to protect the South. By Sean Wilentz, The New York Times, April 4, 2019 Wilentz is Professor of the American Revolutionary Era at Princeton University and the author of No Property in Man: Slavery and Antislavery at the Nation’s Founding (2018) I used to favor amending the Electoral College, in part because I believed the framers put it into the Constitution to protect slavery. I said as much in a book I published in September. But I’ve decided I was wrong. That’s why a merciful God invented second editions. Like many historians, I thought the evidence clearly showed the Electoral College arose from a calculated power play by the slaveholders. By the time the delegates at the Constitutional Convention in 1787 debated how the president ought to be chosen, they had already approved the three-fifths clause — the notorious provision that counted slaves as three-fifths of a person to inflate the slave states’ apportionment in the new House of Representatives. The Electoral College, as approved by the convention in its final form, in effect enshrined the three-fifths clause in the selection of the president. Instead of election by direct popular vote, each state would name electors (chosen however each state legislature approved), who would actually do the electing. The number of each state’s electoral votes would be the same as its combined representation in the House and the Senate. By including the number of senators, two from each state, the formula leaned to making the apportionment fairer to the smaller states. Including the number of House members leaned in favor of the larger states. But the framers gave the slaveholding states the greatest reward: The more slaves they owned, the more representatives they got, and the more votes each would enjoy in choosing the president. The framers’ own damning words seem to cinch the case that the Electoral College was a pro-slavery ploy. Above all, the Virginia slaveholder James Madison — the most influential delegate at the convention — insisted that while direct popular election of the president was the “fittest” system, it would hurt the South, whose population included nonvoting slaves. The slaveholding states, he said, “could have no influence in the election on the score of the Negroes.”Instead, the framers, led by Madison, concocted the Electoral College to give extra power to the slaveholders. If you stop at this point in the record, as I once did, there would be no two ways about it. On further and closer inspection, however, the case against the framers begins to unravel. First, the slaveholders did not need to invent the Electoral College to fend off direct popular election of the president. Direct election did have some influential supporters, including Gouverneur Morris of New York, author of the Constitution’s preamble. But the convention, deeply suspicious of what one Virginian in another context called “the fury of democracy,” crushed the proposal on two separate occasions. How, then, would the president be elected, if not directly by the people at large? Some delegates had proposed that Congress have the privilege. Other delegates floated making the state governors the electors. Still others favored the state legislatures. The alternative, and winning, plan, which became known as the Electoral College only some years later, certainly gave the slaveholding states the advantage of the three-fifths clause. But the connection was incidental, and no more of an advantage than if Congress had been named the electors. Second and most important, once the possibility of direct popular election of the president was defeated, how much did the slaveholding states rush to support the concept of presidential electors? Not at all. In the initial vote over having electors select the president, the only states voting “nay” were North Carolina, South Carolina and Georgia — the three most ardently proslavery states in the convention. Southerners didn’t embrace the idea of electors because it might enlarge slavery’s power; they feared, as the North Carolinian Hugh Williamson, who was not a slaveholder, remarked, that the men chosen as electors would be corruptible “persons not occupied in the high offices of government.” Pro-elite concerns were on their minds — just as, ironically, elite supporters of the Electoral College hoped the body would insulate presidential politics from popular passions. Third, when it first took shape at the convention, the Electoral College would not have significantly helped the slave-owning states. Under the initial apportionment of the House approved by the framers, the slaveholding states would have held 39 out of 92 electoral votes, or about 42 percent. Based on the 1790 census, about 41 percent of the nation’s total white population lived in those same states, a minuscule difference. Moreover, the convention did not arrive at the formula of combining each state’s House and Senate numbers until very late in its proceedings, and there is no evidence to suggest that slavery had anything to do with it. Fourth, the college dit not — whatever the framers’ intentions — become a bulwark for what Northerners would later call the illegitimate slave power. Nonetheless, some historians have revived an old partisan canard that the slaveholding states’ extra electoral votes unfairly handed Thomas Jefferson the presidency in 1800-01. They ignore anti-Jefferson manipulation of the electoral vote in heavily pro-Jefferson Pennsylvania that offset the Southerners’ electoral advantage. Take away that manipulation, and Jefferson would have won with or without the extra Southern votes. The early president most helped by the Constitution’s rejection of direct popular election was John Quincy Adams, who won the White House in 1824-25 despite losing both the popular and electoral votes to Andrew Jackson. As president, the slaveholder Jackson became one of American history’s most prominent critics of the Electoral College, which he blasted for disallowing the people “to express their own will.” The Electoral College system made no difference in deciding the presidency during the 36 years before the Civil War. There are ample grounds for criticizing the Constitution’s provisions for electing the president. That the system enabled the election in 2016 of precisely the kind of demagogic figure the framers designed the system to block suggests the framework may need serious repair. But the myth that the Electoral College began as a slaveholders’ instrument needs debunking — which I hope to help with in my book’s revised paperback. = = = = = = Actually, the Electoral College Was a Pro-Slavery Ploy That fact alone does not mean it ought to be scrapped. But we should be clear about its disreputable origins. By Akhil Reed Amar, The New York Times, April 6, 2019 Amar is a professor at Yale Law School and author of books including America’s Constitution (2005) Many Americans are critical of the Electoral College. These critics often make two arguments: first, that electing the president by direct popular vote would be preferable in a democracy; second, that the Electoral College has disreputable origins, having been put into the Constitution to protect the institution of slavery. Defenders of the Electoral College often counter that it was designed not to help maintain slavery but for other reasons, many of them still relevant, such as to balance the power of big states against that of small states. (Even some critics of the Electoral College have made this argument.) Both sides are misguided. There are legitimate reasons to keep the Electoral College system, odd and creaky though it may be, but we must accept the fact that it does have deep roots in efforts by the founders to accommodate slavery. The Electoral College was not mainly designed to balance big states against small states. It certainly did not have that effect: Eight of the first nine presidential elections were won by candidates who were plantation owners from Virginia, then America’s biggest state. Only three candidates from small states have ever been elected president: Zachary Taylor, Franklin Pierce and Bill Clinton. As James Madison made clear at the Constitutional Convention in 1787 in Philadelphia, the big political divide in America was not between big and small states; it was between North and South and was all about slavery. So, too, was the Electoral College at the founding, both in its original incarnation in 1787 and in the version later created by the 12th Amendment, which was adopted in 1804. Behind closed doors at the Constitutional Convention, when the idea of direct presidential election was proposed by the Northerner James Wilson, the Southerner James Madison explained why this was a political nonstarter: Slaves couldn’t vote, so the slaveholding South would basically lose every time in a national direct vote. But if slaves could somehow be counted in an indirect system, maybe at a discount (say, three-fifths), well, that might sell in the South. Thus were planted the early seeds of an Electoral College system. And while some have argued that direct election was doomed because the Philadelphia delegates disdained democracy (popular opinion), we must look at what the framers of the Constitution did, rather than what they said. They put the Constitution itself to a far more democratic vote than had been seen before. They provided for a directly elected House of Representatives (which the earlier Articles of Confederation did not do). They omitted all property qualifications for leading federal positions, unlike almost every state constitution then on the books. So why didn’t they go even further, providing direct presidential election? Because of Madison’s political calculation: Direct election would have been a dealbreaker for the South. For a while, having members of Congress elect the president emerged as a possible alternative, but this idea, too, would have been pro-slavery for the same reason: Thanks to the three-fifths clause, slave states got extra votes in the House, just as in the Electoral College system that was finally adopted. In the first two elections under the Constitution, America witnessed its first two contested presidential elections. Twice, most Southerners backed a Southerner (Thomas Jefferson) and most Northerners backed a Northerner (John Adams). Without the extra electoral votes generated by its enormous slave population, the South would have lost the election of 1800, which Jefferson won. It is true, as some have noted, that some Northerners manipulated the vote in that election to their advantage, but that does not erase the ugly fact that the South had extra seats in the Electoral College because of its slaves. When the Constitution was amended to modify the Electoral College after 1800, all America had seen the pro-slavery tilt of the system, but Jefferson’s Southern allies steamrollered over Northern congressmen who explicitly proposed eliminating the system’s pro-slavery bias. (Congress passed the 12th Amendment to the Constitution, ratified in 1804, which distinguished clearly between votes for president and vice president and streamlined other elements of the process.) As a result, every president until Abraham Lincoln was either a Southerner or a Northerner who was willing (while president) to accommodate the slaveholding South. The dominant political figure in antebellum America was the pro-slavery Andrew Jackson, who in 1829 proposed eliminating electors while retaining pro-slavery apportionment rules rooted in the three-fifths clause — in effect creating a system of pro-slavery electoral-vote counts without the need for electors themselves. Today, of course, slavery no longer skews and stains our system — and maybe the Electoral College system should remain intact. The best argument in its favor is simply inertia: Any reforms might backfire, with unforeseen and adverse consequences. The Electoral College is the devil we know. But we should not kid ourselves: This devil does indeed have devilish origins. = = = = = Slavery and the Electoral College: One Last Response to Sean Wilentz By Alan Singer, History News Network, April 21, 2019 Singer is an historian at Hofstra University and author of New York's Grand Emancipation Jubilee: Essays on Slavery, Resistance, Abolition, Teaching, and Historical Memory (2018). Professor Sean Wilentz has retracted his earlier opinion on the origin of the Electoral College. In his book published in September 2018, Wilentz concluded “the evidence clearly showed the Electoral College arose from a calculated power play by the slaveholders.” Now Professor Wilentz asserts he was mistaken. “There is a lot wrong with how we choose the president. But the framers did not put it into the Constitution to protect the South.” I understand Wilentz's new position on the origin of the Electoral College is this: that, it, like slavery, it an undemocratic element of the new Constitution endorsed by writers from the North and South who feared slave insurrection, democratic insurgencies like Shay’s Rebellion, and popular government, who represented slave states (there was still slavery in most of the North) or commercial interests tied into the slave trade, and And that while the EC probably got a slaveholder elected President in 1800, but historians shouldn't conclude that they considered that the Electoral College, like the 3/5 clause, the fugitive slave clause, and the ban on banning the slave trade for 20 years, might protect slavery. I don’t consider myself equipped to debate either the earlier or later positions taken by Prof Wilentz, but I thought James Madison might be, so I decided to consult his Notes of the Constitutional Convention. Hugh Williamson representing North Carolina seems to have first introduced the idea of an Electoral College in discussion of an Executive on June 2, 1787. A month later, the Constitutional Convention debated a series of proposals for selecting a national “Executive.” Madison noted that “There are objections agst. every mode that has been, or perhaps can be proposed. The election must be made either by some existing authority under the Natil. or State Constitutions — or by some special authority derived from the people — or by the people themselves. — The two Existing authorities under the Natl. Constitution wd be the Legislative & Judiciary.” Madison opposed the judiciary and legislative options as “liable to insuperable objections.” According to Madison, “The Option before us then lay between an appointment by Electors chosen by the people — and an immediate appointment by the people. He thought the former mode free from many of the objections which had been urged agst. it, and greatly preferable to an appointment by the Natl. Legislature. As the electors would be chosen for the occasion, would meet at once, & proceed immediately to an appointment, there would be very little opportunity for cabal, or corruption.” The convention voted down that the Executive be chosen by the national legislature, with only New Hampshire, Connecticut, Pennsylvania, and Maryland voting in the affirmative. Charles Pinckney (South Carolina), George Mason (Virginia) and Elbridge Gerry (Massachusetts) supported a motion to have the Executive selected by the Legislature. The idea of an Electoral College was reintroduced by Pierce Butler, a South Carolina rice planter, one of the largest slaveholders in the United States, and one of slavery’s strongest defenders. Butler also introduced the Fugitive Slave Clause into the Constitution, supported the Constitution provision prohibiting regulation of the trade for twenty year, and demanded that the entire slave population of a state be counted for Congressional apportionment. According to Butler, “The two great evils to be avoided are cabal at home, & influence from abroad. It will be difficult to avoid either if the Election be made by the Natl Legislature. On the other hand, the Govt. should not be made so complex & unwieldy as to disgust the States. This would be the case, if the election shd. be referred to the people. He liked best an election by Electors chosen by the Legislatures of the States.” The issue of selecting an Executive was then referred to a special Committee of Eleven, also known as the Brearly Committee. (David Bearly, Committee on Postponed Parts) Later in the Convention, the Brearly Committee reported its recommendation that “Each State shall appoint in such manner as its Legislature may direct, a number of electors equal to the whole number of Senators and members of the House of Representatives, to which the State may be entitled in the Legislature.” “Many were anxious even for an immediate choice by the people,” and “the indispensable necessity of making the Executive independent of the Legislature.” Pierce Butler defended the recommendation, although “the mode not free from objections, but much more so than an election by the Legislature, where as in elective monarchies, cabal faction & violence would be sure to prevail.” On Septmeber 6, the edited Brearly Committee report was brought to the convention again. Alexander Hamilton, who had a strong “dislike of the Scheme of Govt. in General,” announced, “he meant to support the plan to be recommended, as better than nothing.” It was finally accepted by the Constitutional Convention and submitted to the states for approval. Madison’s notes do not definitely prove either Wilentz’s earlier or later positions on the relationship between support for the Electoral College and defense of slavery. What I find most suggestive in the debate is the role played by Pierce Butler, one of the Convention’s greatest slavery champions. The Electoral College may not have been expressly designed only to protect African slavery, but based on Madison’s notes, it was the mode most preferred by pro-slavery forces. = = = = Electoral College is a hot topic again: Calling James Madison By John Avlon, Cable News Network, March 20, 2019 Avlon is a political analyst at CNN and author of books including Independent Nation: How Centrists Can Change American Politics (2004) Electoral College reform is suddenly all the rage. Elizabeth Warren endorsed abolishing the Electoral College in her CNN town hall. Beto O'Rourke and Kamala Harris soon joined the chorus. In response, President Donald Trump slammed the idea on Twitter -- but back in 2012, he'd described the Electoral College as a "disaster for our democracy." So, is this simply a case of Democrats trying to change the rules after winning the popular vote but losing the presidency twice in two decades. Is it an insult to the Founding Fathers' original intent? Or could it actually happen? First of...