April 18, 2011 – Article II, Section 1, Clause 3 of the United States Constitution – Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Article II, Section 1, Clause 3

3:  The Electors shall meet in their respective States, and vote by Ballot for two persons, of whom one at least shall not lie an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; a quorum for this Purpose shall consist of a Member or Members from two-thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice-President.

When determining the mode for selecting the President, the Framers were faced with a conundrum.  The President was to be a leader who could act with energy and dispatch.  Yet he was to maintain his constitutional pedigree as a republican, and he must exercise wisdom and judgment.  It was hoped that the President would be, as Henry Lee said in his eulogy of George Washington, “first in war, first in peace, and first in the hearts of his countrymen.”  But the president was not to gain that position as an American Caesar, a man whose immense talents and genius also proved to be fatal to that ancient republic that Revolutionary War-era Americans so admired.

Perhaps even worse, because so much more likely in the ordinary case, would be the man who, lacking the genius of a Caesar, would gain office through “talents for low intrigue, and the little arts of popularity,” as Hamilton sneered in Federalist 68.  To Americans of the time, “popular” suggested a certain cravenness and lack of principle.  Such a person would do what advanced his political standing, rather than what was best for the country.  As Plato long ago warned in his description of the demagogue (Greek for “leader of the people”), this was a particular flaw of democracy.  Such a man was most likely to emerge in a system that placed no electoral barrier between the mass of the people and him.

Hamilton’s response during the Philadelphia Convention was a complex multi-layered proposal of election by electors selected by regional electors themselves elected by some class of voters.  Such a convoluted system resembles an electoral Rube Goldberg-contraption. However, the historically well-read Framers had the experience of other republics from which to draw, and Hamilton’s system was a simplified (if that can be imagined) variant of the election of the Doge of Venice.  A system of electors avoids the democratic pitfalls of election of unqualified flatterers by a people corrupted by promises of favors or bedazzled by a façade of handsome features and soaring, but empty, rhetoric.  But, without more, election by a council of the few does not avoid the oligarchic pitfalls and factionalism inherent in any cohesive and organized group, characteristics Madison warned against in The Federalist.  Hamilton’s proposal would increase the number of participants and disperse their decisions.  This made it more difficult for a candidate to gain office by corruption and intrigue through a small and cohesive faction.

The Framers did not go along with the particulars of Hamilton’s proposal.  But, after making the easy call against direct popular election and rejecting, as well, election by Congress or by the state legislatures, they settled on a system similar to the one proposed by Hamilton. In the process, they resolved several practical problems.  Every efficient electoral system has to provide for a means of nominating and then electing candidates. Moreover, civil disturbances over what is often a politically heated process must be avoided. There must be no taint of corruption. The candidate elected must be qualified.

As to the first, the Electoral College would, in many cases, nominate multiple candidates. Electors would be chosen as the legislatures of the states would direct. Though the practice of popular voting for electors spread, not until South Carolina seceded from the Union in 1860 did appointment by the legislatures end everywhere. Once selected, the electors’ strong loyalties to their respective states likely would cause the electors to select a “favorite son” candidate. To prevent a multiplicity of candidates based on state residency, electors had to cast one of the two votes allotted to each for someone from another state. It was expected that several regional candidates would emerge under that process. There likely would be no single majority electoral vote recipient, at least not after George Washington. In effect, the Electoral College would nominate the candidates.  The actual election of the President then would devolve to the House of Representatives, fostering the blending and overlapping of powers that Madison extolled in Federalist 51.  The winner of the House vote would be President, the runner-up would be Vice-President.

That last step corresponded to the Framers’ experience with the election of the British prime minister and cabinet, and with the practice of several states. However, consistent with the state-oriented structure of American federalism, such election in the House had to come through a majority of state delegations, not individual Congressmen. Though modified slightly by the Twelfth Amendment as a result of the deadlock of 1800, this process is still in place.

As John Jay writes in Federalist 64, the Constitution’s system would likely select those most qualified to be President. Augmented by the Constitution’s age requirement for President, the electors are not “liable to be deceived by those brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle.”

Having the voters select a group of electors, rather than the President directly, would also calm the political waters. By making that election something other than an immediate vote about particular candidates, the process would encourage reflection and deliberation by voters about the capacity for reasoned judgment of the electors chosen. The smaller number of wise electors, in turn, would exercise that judgment free from popular passion.

Hamilton and others assured Americans that corruption and the influence of faction would be avoided by the temporary and limited duty of the electors, the disqualification of federal office holders to serve, the large number of electors, and the fact that they would meet in separate states at the same time rather than in one grand national body. Presumably, those protections fall away when the House elects the President. But Congressmen have to worry about re-election and, thus, want to avoid corrupt bargains that are odious to the voters.

The system never quite worked as intended.  After Washington’s election, the nomination of Presidents was informally taken over by factions in Congress, in a process dubbed the Congressional caucus system.  That system immediately caused the untenable situation of a President (Adams) and a Vice-President (Jefferson) from opposing factions.  The debacle of the House-controlled election of 1800 brought about by the intra-factional rivalry of Jefferson and Burr placed the young American experiment in self-government in mortal danger. That, in turn, brought limited reform through the 12th Amendment.

Though the constitutional shell remains, much of the system operates differently than the Framers thought. The reason is the evolution of the modern programmatic party, that bane of good republicans, which has replaced state loyalties with party loyalties. The Framers thought they had dealt adequately with the influence of factions (political groups that focus on a particular issue or coalesce around a charismatic leader) in their finely-tuned system. As modern party government was just emerging in Britain and—in contrast to temporary and shifting political factions—unknown in the states, the Framers designed the election process unprepared for such parties.

Today, the nominating function is performed by political parties, while election is, in practice, by the voters. Elections by the House are still possible, if there is a strong regional third-party candidate. But the dominance of the two parties (which are, in part, coalitions of factions) suppresses competition, and the last time there was a reasonable possibility of electoral deadlock was in 1968, when Alabama Governor George C. Wallace took 46 electoral votes. Mere independent national candidacies, such as that of Ross Perot in 1992, have roughly similar levels of support in all states and are unlikely to siphon electoral votes and block the usual process.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums.  Read more from Professor Knipprath at: http://www.tokenconservative.com/ .

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4 Responses to “April 18, 2011 – Article II, Section 1, Clause 3 of the United States Constitution – Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School”

  1. Cutler says:

    But if there were State loyalties rather than Party loyalties, could that have not in and of itself produced a “Party” that focused on a particular issue? For instance, suppose a Southern candidate in the 1800’s ran supporting primarily the Cotton industry at the expense of the industrialized North.
    Good Essay.

    • Ralph T. Howarth, Jr. says:

      That is exactly what the Phila Convention was like: the states had their particular interests, and it is that voice that made the federal seat more cosmopolitan; but within many states have been a myriad of interests. The vision was to have statesmen who held the interests of their state up against the federal seat; not to have politicians.

  2. Barb Zakszewski says:

    Hamilton, writing in Federalist 68, actually was able to look 220 years or so into the Future and described our current President rather perfectly.. Unfortunately, while the process outlined above was designed with several “safeguards”, today we are so far away from the intention, which is probably why, in many cases, we vote for the “lesser of two evils”.. Sad, isn’t it??

  3. Joerg Knipprath says:

    Thanks for writing, Cutler. The matter is one of terminology. The Framers certainly understood the concept of “party” in the sense of taking the side of an issue and seeking political advantage based on that position. They contrasted the “spirit of party” with the “spirit of the common good,” the latter of which has always been an ideal of “republicanism” (but rarely achieved and never for long).
    But, in the sense of an organized movement, they more commonly used the term “faction.” There is frequent reference, for example, in the Federalist, to “factious leaders” and “factions” in governing bodies. A faction develops around a hot issue (embargoes, France vs. England, internal improvements, tarriffs, debtor-relief laws, paper money) or follows a charismatic leader (Hamilton, Jefferson, John Randolph, Henry Clay, Andrew Jackson). When that issue disappears from the political front page, or that leader dies, the faction crumbles, though it may coalesce around someone else. They are more like single-issue or interest groups (environmentalists, public employee unions) today, as well as like those who follow, say, Sarah Palin.
    This is quite different from the modern programmatic political party, such as the Democrats or Republicans. The Green Party may be more like an old-style faction, though the analogy is far from perfect. The Reform Party in the 1990s (centering on Ross Perot) was more like an old-style faction.
    The Democrats and Republicans have an identity that transcends any particular issue that might arise or any particular candidate, no matter how charismatic. The death of Ronald Reagan was not the end of the GOP. There is some overarching long-term programmatic identity that each party has, but, beyond that, they are coalitions of groups that jockey for influence. Their power may wane as an issue becomes less significant. If a new issue arises around which a politically significant faction forms, one of the two parties (or both) likely will try to co-opt that faction. The “tea party movement” and the attempt by the GOP to embrace them is a recent reasonably apt example.
    The Framers did not anticipate the rise of such national mass parties. Communications and ideology in the 18th century US were not conducive to that. That was beginning to change, and, by the 1820s/1830s had changed sufficiently to produce the Whigs and the National Democrats out of the remains of the Democratic-Republicans (which had been more of a faction around the person of Jefferson in reaction against the Hamiltonian program of the 1790s).
    The example you mention of the Southern candidate did happen, especially in the tarriff controversy from the 1820s on. Parties did have a heavy sectional bent, culminating in the collapse of the Whigs and the split of the Democrats near the Civil War. There were Southern and Northern Democrats and Northern and Southern Whigs, but they were still part of a system that operated nationally.

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