In the weeks following Donald Trump’s ascension to the Presidency, there was every reason to fear that the Constitution might be stretched to breaking-point. On his route to the White House, Trump brazenly defied political orthodoxy at every turn, while making clear he had no plans bend to the conventions of Washington DC. Republican successes in the House and Senate only added to the fears harbored by Trump’s detractors. If Congress proved in any way servile to the President, then would anything be able to restrain him? And what of the more malignant aspects of his agenda?

Since taking office, Trump has shown his critics to be reasonable in their concerns, but misguided in their prognosis.  Not even a year into his tenure, and Trump is drenched in scandal. Conflicts of interest abound, and his administration reeks of corruption and the injustice of nepotism. However, crucially, and reassuringly, the President finds himself under attack from all angles. Just as the Courts are proving themselves to be formidable adversaries, lawmakers in the Senate are beginning to find their sea-legs in the unstable world of a Trump Presidency. Even the states, which have seen better days as centers of power, can be found resisting the executive branch with a zeal not seen since the early days of “Obamacare”.

But to marvel for too long at the Constitution’s “checks and balances” would be a mistake. While presidents can be largely forced to work within the proper constitutional channels, there are palpable limitations to how far the other branches of government can nullify the office. The executive branch enjoys an immense degree of latitude, and trust alone can often stand as the last line of defence against presidential recklessness. No longer a purely theoretical concern, this reality has drawn a deeper issue into focus. The American system of government is lacking the ultimate check: the guarantee against the possibility of an irrational demagogue exercising any power whatsoever.

Electors and the Elected

Electoral systems have a tendency to make institutions. Just look to Britain where the ruthless “First-Past-the-Post” system has created a parliamentary culture driven by loyalty, discipline, and decisiveness. The same is true of Canada where prime ministers serve at the discretion of parliament – and require Commons majorities to do so. A contrasting, but no less pertinent, example can be found in Germany. There, the Bundestag’s “Mixed-member” system discourages single-party rule and rewards cross-party collaboration. Far from accidental, the express purpose is to strike a balance between the political fragmentation of the Weimar Republic and the one-party dominance seen after its collapse.

When the Electoral College was first established in 1787, it too was designed to foster a certain type of governance. The Constitution’s framers reasoned that if future presidents were to embody the virtues of deliberation and judiciousness, the method for their election ought to be grounded in those same attributes. A two-stage process was agreed-upon as a way of marrying the two republican ideals of representation and circumspection. The people would have the opportunity to appoint ‘electors’ who, in turn, would deliberate and chose a president.

The guiding theory behind the Electoral College is strongly supported by (very) recent history. The framers feared that nationwide elections would expose the republic to a whole manner of extraordinary “convulsions”; and at worst, could leave the door open for the rise of a majority “adverse to the rights of other citizens“. Baked into this was an awareness that populist agitators could take advantage of popular discord, and Hamilton even once remarked (with astonishing prescience) that the Electoral College would be necessary if only to thwart the nefarious influence of foreign powers. In this sense, the electors were given the vital role of acting as political circuit-breakers. The would be conduits for the will of the people, while remaining primed to resist anything inimical to the health of the republic.


 


In its original form, the Electoral College was a regrettably short-lived project. Before long, the individual states began conducting “winner-takes-all” elections for the presidency, stripping the process of its distinctly republican characteristics. No longer required to represent and deliberate, the role of the elector was soon reduced to rubber-stamping the result of the “state-wide” election. The introduction of “pledge laws” solidified the diminished status of the elector, and today most are legally mandated to vote in line with the outcome of their state’s “at-large” election. According to Madison, the mastermind behind the Constitution, the unstoppable trend toward state-wide voting amounted to a “betrayal of the spirit of the Constitution” — and it’s a betrayal that has been left uncorrected.

Satisfying neither the criteria for a democratic contest, nor the framers’ demands for deliberative calm, the purpose of today’s Electoral College is difficult to discern. The most recent election exposed the institution’s weaknesses with crystal clarity. Not only was there a wild variance between the popular vote and electoral college calculus, but the contest produced a president who was by any objective measure plainly unfit for the role. Compare Trump – both the man and the President – against any of the criteria set out in Federalist No.68, and “The Donald” falls short. As a president, he represents precisely what the Electoral College was established to impede. And as a man, stands as the antithesis of everything the framers expected from the officeholder.

Populism and Popularity

In the wake of 2016, it might be easy to simply follow the data and pin Trump’s rise on an absence of democracy. Pointing to his loss in the popular vote, one could very reasonably suggest that the people might be the tonic constitutionalists have been looking for all along. We could even draw upon less-recent history to shore-up such a thesis. After all, the most revered presidents in American history — Lincoln, Reagan, Kennedy, Eisenhower and both Roosevelts — all enjoyed successes in the popular vote, whereas racial dissenters — like Goldwater and McGovern — failed comprehensively.



But to find comfort in such reasoning is to court complacency. Trump’s presidency diminishes past precedent. An honest assessment would conclude that we know only how Trump and Clinton performed in that election — one which revolved around the states, no the people per se. While we can make attempts at extrapolation, there’s really no telling how each candidate would have performed in an run-off conducted on the basis of popular voting.

If nothing else, Trump’s electoral resumé tells us that nothing is off the table. He accrued millions more votes than either Mitt Romney or John McCain, and in the 2016 GOP primaries, amassed almost double the number of votes picked up by his nearest rival. A sober appraisal of Trump’s electoral viability suggests that it would be profoundly dangerous to hold-up popular voting as the antidote to candidates like the sitting president. Trump, let’s not forget, is above all else a populist. And populists win elections.

Hamilton returns

The evolution of the American system of government is one that has always trended in a democratic direction. Whether it’s the Seventeenth Amendment, the birth of the National Convention, or even the “right of recall”, the major reforms to the political process have generally been about giving the governed more control over the governors.  For the most part, this trend toward enhanced democratic control has been both positive and laudable. Producing increased accountability and legitimacy, it can indeed help to explain the remarkable longevity of the American model.  It’s worth noting that the United States stands as a conspicuous outlier among the world’s presidential republics. While almost all have, at some point, descended into ruin, the American example suggest that presidential government can work – but only on the condition that it is supported by a strong and unrelenting democratic tradition.

But not every well-intentioned development has reinforced the Constitution’s liberal basis — and the derogation of the Electoral College is a case in point. When the two-stage method of election was set aside almost two centuries ago, the process was stripped of its flexibility in exchange for a superficial veneer of democracy. Gone is the capacity for electors to draw on their own reasoning; gone is their ability to slam the breaks on movements inimical to the health of the republic. Instead, the electors are forced to ratify whatever emerges from the white hot heat of a nationwide election. There is no valve to release the pressure, and nothing to let the process bend before it snaps.

 



The framers, let’s not forget, had someone like Trump in mind when the Electoral College was first developed. Its primary purpose was to interpret the will of the people and filter-out the unworthy and unqualified. The current President’s rise might not have been caused by a weakness in the electoral system, but it was certainly facilitated by the displacement of the two-stage Electoral College process. If electors were permitted and encouraged to exercise discretion in times of abnormality, it’s almost certain that candidacies like Trump’s would fail to seriously materialize.

It’s important to emphasize that this is not an appeal for electors to have carte blanche independence. Such a demand would be dead-on-arrival — and perhaps with good reason. However, there are elements of the original Electoral College which, if resurrected, could inject the process with the flexibility it currently lacks. The return of district-by-district voting and the abolition of state-level pledge laws would re-fit the Constitution with “ultimate check”, namely the capacity to prevent the ascendancy of a candidate hostile to the very health of the republic.

None of this is to say that the will of the people would be rendered irrelevant under a return of the processes of the original Electoral College. In normal times, electors would struggle to find candidates more able and worthy than the winners of the party primaries. For instance, if the parties were to nominate candidates in the mold of Obama and McCain, any attempts to look beyond them would rightly be seen as illegitimate and unnecessary. The critical point is that the Electoral College was in no sense an attempt to undermine the people. It was instead simply an institution established to blend democracy with moderation.

But whatever you think is the solution, something has to change. When putting the draft Constitution to New York in 1787, Hamilton had the confidence to remark that “there will be a constant probability of seeing the [presidency] filled by characters preeminent for ability and virtue”. No one could dare make such a claim today.

This article is partially based on the author’s doctoral dissertation which can be read here.

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Managing editor, ShouldHappen.com.

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