July 30, 2010 – Federalist No. 68 – The Mode of Electing the President, From the New York Packet (Hamilton) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

Friday, July 30th, 2010

Federalist 68 to 72 address the election and structure of the Presidency. Who better to address that than Alexander Hamilton, whose knowledge of executive power combines with an affinity for it that caused much suspicion during his political career?

The first essay is a brief foray into the Electoral College. The matter excited so little passion during the ratification debates that Hamilton barely gets his writing hand limbered up. He allows himself to wax poetic and substitute a couplet edited from Alexander Pope’s Essay on Man for some of the acerbic put-downs of his preceding efforts as Publius. Yet, the frivolity of the approach should not obscure the delicate political balances reflected in the constitutional settlement of the President’s election. The Framers’ had rejected direct popular election (an easy call due to its profound conflict with the idea of the United States as a confederated republic), election by Congress, election by the state legislatures, and election by electors selected by regional electors elected by the people (Hamilton’s multi-layered proposal).

The Framers wanted at once to have an energetic executive and to prevent the emergence of an American Caesar. The first would be accomplished by unity in the office, the latter through, among other things, care in the selection of the person. They also were deeply fearful that some foreign power might place a Manchurian Candidate among the presidential contenders. Hamilton mentions that concern in his defense of the system, a concern also reflected in the requirement that the President be a natural-born citizen. This was no small matter to the Framers. There were various plots and other connections between foreign agents and American politicians and military officers (the Wilkinson/Burr cabal with Spain, for example). Moreover, these kinds of intrigues to place a foreigner in executive office were familiar, both because they were common abroad, and because of the Confederation Congress’s offer in 1786, quickly withdrawn, to the republican-minded Prince Henry of Prussia to become regent of the U.S.

The Framers faced 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. 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.

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.

The Electoral College also was to be the mediating device that would balance the desire for popular input with the realistic concern that a direct popular vote would promote candidates with “talents for low intrigue, and the little arts of popularity.” Hamilton, a skilled in-fighter, possessed very sharp elbows politically, but lacked those particular talents and despised them in others. 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 a 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.

There is also the problem of corruption of the electors. Every polity must address that. The Republic of Venice had a truly byzantine system of election and selection by lot of those whose sole responsibility it would be to elect the Doge (the executive). The sheer number of participants and the unpredictability of the eventual identity of the Venetian electors made vote-buying, influence-peddling, and intimidation impractical. In Federalist 68, as well, Hamilton assures the reader that, in the American system, corruption and the influence of faction are 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 meet in separate states at the same time. 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.

Though the constitutional shell remains, much of the system operates differently than the Framers hoped. 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 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.

Parties have had a beneficial effect in that they have prevented repetitions of the debacles of 1800 (when, due to the tie vote between Jefferson and Burr, it took the House 36 ballots and probable political intervention by Hamilton on the former’s behalf to resolve the election) and of 1824 (when the election dominated by just the regional candidacies anticipated by the Framers was thrown into the House and extensive bargaining precipitated charges of corruption that stymied the J. Q. Adams presidency). Had parties not emerged to provide necessary lubrication, the creaky constitutional machinery well might have had to be reformed. Though they have smoothed the process, parties arguably also have promoted the very evils (other than foreign intrigue) that Publius assured his readers were avoided under the electoral system designed by the Framers.

At the same time, the emergence of modern political parties has not made the Electoral College obsolete, as it still promotes important values. It reinforces the founding principle that the U.S. is a confederated republic and not a consolidated national government, as analyzed so persuasively by Madison in Federalist 39. Despite the occasional misfire, as in the election of 2000, the Electoral College often gives the narrow victor in the popular vote a mandate through a significant electoral college majority. The need to find a lot of electoral votes to overturn such a result reduces the likelihood of persistent challenges. Elections such as 1948, 1960, 1968, and 1992 come to mind. Proposals to change or abolish the Electoral College have appeared frequently since the Constitution’s adoption and are of predictable types. But they always lose steam, as there has been no showing that they will serve republican values better than the current system. Indeed, efforts to change the system have declined in the last half century, even after the contested election of 2000, a testimony to the enduring legitimacy of the Electoral College.

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.  Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums.  His website is http://www.tokenconservative.com


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