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Checks and Balances

We have recently heard a great deal about the alleged evils of the Electoral College, and progressive opinion would currently like to abolish what it views as an obstacle to true multicultural democracy. Reasonable people can disagree about the virtues of the college itself, but the underlying arguments here are deeply troubling for what they suggest about the very widespread ignorance of the Constitution. This is a matter of rudimentary civics education.

The main indictment of the Electoral College is that it stands in the way of the expression of the voting majority. The main problem with this argument should be apparent: very few people actually believe in using simple electoral majorities to decide each and every political question.

If we did that, then all contentious issues would be resolved not by the decisions of courts or elected assemblies, but by referenda or plebiscites. And if the United States did work on that basis, many victories that progressives cherish—such as the end of formal racial segregation, the legalization of abortion, and the recognition of same-sex marriages—would have been achieved much later than they were or not achieved at all. Quite assuredly, the mass immigration that has occurred since the 1970s would not have taken place. The Founders knew plenty of examples of direct, unmediated democracy from the ancient world—plebiscites, referenda, votes on ostracism—and they absolutely rejected them.

The fact that particular institutions stand in the way of the popular will does not mean that they are anti-democratic. The United States does not work on the basis of crude majoritarianism, and it was never intended to do so. Any elected representative who fails to understand that is in the wrong profession.

Progressives further allege that the Electoral College’s undemocratic setup betrays the institution’s origins in the political needs of slave states: states’ power in the college is based on their total number of representatives and senators, and the Three-Fifths Compromise originally gave Southern states extra representatives in proportion to their (non-voting) slave populations. The college as an institution is thus tainted by a history of racial oppression. Only by ending it can the country march along the path to true racial equality.

But if you actually read the Founding Fathers, you see they are constantly trying to balance and reconcile two competing forces, namely the people’s role as the basis of government and the need to restrain and channel the shifting passions of that same people. That is why the U.S. government has the structure it does of House, Senate, and presidency, each with its different terms of office. The goal is to ensure that all three will not suddenly be elected together in a single moment of national fervor or insanity. While those institutions all represent the people, they do so with different degrees of directness and immediacy.

At every stage, the Founders wished to create a system that defended minorities from the majority, and moreover to protect smaller and less powerful regions and communities from their overweening neighbors. That protection did not just involve defending the institution of slavery, but extended to any number of other potential conflicts and rivalries of a regional nature: urban versus rural, merchants against manufacturers, farmers against merchants and manufacturers, skeptics versus pious true believers.

The critical need for intermediary institutions explains the role of states, which is apparently such an acute grievance for critics of the Electoral College. As the question is often asked today: why does that archaic state system stand in the way of the national popular will, as expressed through the ballot box? But let’s pursue the argument to its logical conclusion. If the Electoral College is really such an unjustified check on true democracy, its sins are as nothing beside those of the U.S. Senate, whose members hold power regardless of the relative population of their home states. California and Texas each have two senators, and so do Wyoming and Vermont. Is that not absurd? Back in the 1920s, the undemocratic quality of that arrangement was a major grievance for the leaders of populous industrial states, who could not understand why the half-million people of Arizona (say) had exactly the same Senate clout as the 10 million of Pennsylvania.

The Founders were also far-sighted enough to realize that those crude population figures would change dramatically over time. Probably in 20 years or so, Arizonans will outnumber Pennsylvanians. In the long run, things really do balance out.

So the next time you hear an argument that the Electoral College has served its purpose and should be abolished, do press the speaker on how far that argument should be taken. Why should we have a U.S. Senate, and should it be abolished forthwith? Why do we have more than one house of Congress anyway? Why don’t we make all decisions through referendum?

The Founders actually did know what they were doing, and Americans urgently need to be taught to understand that.

Philip Jenkins is the author of The Many Faces of Christ: The Thousand Year Story of the Survival and Influence of the Lost Gospels [1]. He is distinguished professor of history at Baylor University and serves as co-director for the Program on Historical Studies of Religion in the Institute for Studies of Religion.

14 Comments (Open | Close)

14 Comments To "Checks and Balances"

#1 Comment By Mitch On January 3, 2017 @ 2:41 am

You are being dishonest. It’s exactly because of the anti-majoritan design of the Senate and (to a lesser degree) of the House that the Electoral College should be abolished. You speak of checks and balances, and the vast majority of Americans approve of checks and balances. But there is one important check that’s missing from the US political system. And that is the check against minority rule.

Democrats won the popular vote for the presidency and House in 2012, yet Republicans were the majority among the Representatives. That’s an acceptable outcome, simple majority rule has been averted. Yet Democrats get nothing for their popular vote win 2016, while the minority controls all levels of government. If minority rule is all right, why don’t we abolish elections altogether and return to a rule by aristocrats?

#2 Comment By Nelson On January 3, 2017 @ 3:06 am

As I understand it, electors originally could casr their votes how they wished but are now legally required to vote the same as the popular vote for their state. I’m not sure how this achieves the goal of preventing a popular fit of insanity.

#3 Comment By Doug On January 3, 2017 @ 5:20 am

One can believe that, when voting for president, the vote of a Californian should be worth the same as an Idahoan without thinking we should abolish the Justice system and the legislature and decide everything by referenda. It’s really not that hard of a distinction to make. For example, Canadians are currently attempting to reform their electoral system, and one of the goals is to prevent the ability of a minority of the electorate to establish majority control of the government, an outcome that is likely to result when, for example, there are two left-of-center parties and one right-of-center party. Canadians are easily able to believe their government should become at least modestly more representative without also believing in the abolition of their Supreme Court and Parliament.

#4 Comment By Tom Riddle On January 3, 2017 @ 7:10 am

“But if you actually read the Founding Fathers, you see they are constantly trying to balance and reconcile two competing forces, namely the people’s role as the basis of government and the need to restrain and channel the shifting passions of that same people.”

But if you actually actually read the Founding Father, you will find that along with being concerned about checks and balances, rejected the popular vote in order to compromise with slave states. James Madison, father of the constitution and proponent of the popular for president, mentions in his constitution conventions that Hugh Williamson of South Carolina:

conceived that there was the same difference between an election in this case, by the people and by the legislature, as between an appt. by lot, and by choice. There are at present distinguished characters, who are known perhaps to almost every man. This will not always be the case. The people will be sure to vote for some man in their own State, and the largest State will be sure to succede. This will not be Virga. however. Her slaves will have no suffrage.

The South was worried about the fact that while they have a high population, they had low levels of suffrage, thereby limiting its influence on the choosing of the president. Thus the electoral college provided a happy compromise.

Let’s not be so excited to chastise liberals that we ignore proper historical research. Nor should we tell people to read the founding fathers and then not provide any reading material.

For more on this subject, here is noted legal historian Paul Finkelman on the subject. PDF WARNING!!!

[2]

#5 Comment By Johann On January 3, 2017 @ 8:47 am

Another reason for the electoral college is to protect the sovereignty of the states. Many people forget that we are the United States. Its doubtful the smaller population colonies would have agreed to join the union without the protections discussed in this outstanding article. We do not call them provinces or some other name for a reason. In fact at one time, people more readily identified themselves with their states than with the nation. They wanted to be known as Virginians or Texans first and Americans second.

Of course, over the centuries, the states have gradually lost much of their sovereignty to an ever increasingly powerful central government. But please, lets try to hold on to what state sovereignty we have left and try to reverse the decline.

#6 Comment By Miles Rind On January 3, 2017 @ 10:25 am

“The main indictment of the Electoral College is that it stands in the way of the expression of the voting majority. The main problem with this argument should be apparent: very few people actually believe in using simple electoral majorities to decide each and every political question.”

Thank you, Mr. Jenkins, for providing me with useful instructional materials for my logic course. This is about as blatant an example of the fallacies of red herring and straw man as I could ever hope to find in a short passage. Well done.

#7 Comment By SteveM On January 3, 2017 @ 10:44 am

Whether intended or not, the Framers baked a poison pill into the Constitution. In the 1790 census, the free-person population ratio of the largest state (Virginia) to the smallest state (Delaware) was 9 to 1. That ratio is now 66 to 1 (CA vs. WY). The disproportionality of the Electoral College and the Senate is all out of whack. In the presidential election, a Wyoming vote counts 18X more than a California vote.

Unfortunately Constitutional amendments are passed by state so WY counts as much as CA when passing amendments. In that context the small states would never vote to surrender political influence in the Senate or Electoral College. That’s the poison pill.

Professor Jenkins has it totally wrong. The proof is in the rancid pudding. Considering the evolution of the pathological Imperial Presidency, a chronically impotent Congress and a judiciary that makes it up as it goes along, like it or not, the American governance model is busted beyond repair and can’t be fixed.

#8 Comment By Will Harrington On January 3, 2017 @ 11:41 am

Steve M

What you call a poison pill is what those of us from rural states call a saving grace. It really is a matter of perspective, isn’t it?

#9 Comment By James Buerer On January 3, 2017 @ 12:51 pm

The Founding Fathers gave us the Electoral College. They also gave us only land-owning white males as voters and no direct election of Senators. Tell me again how they are always right.

#10 Comment By Baldy On January 3, 2017 @ 4:01 pm

In states where electors are legally obligated to follow the popular vote the electoral college is useless. We need an electoral college that actually does protect us from lunatic moral degenerates that the ignorant electorate votes in.

#11 Comment By Edmund Wolsey On January 4, 2017 @ 12:06 am

My issue with the college is that, as I see it, the one argument for it that isn’t sort of replicated by the way we vote geographically for Congress is that it act as an elitist check on the popular vote. I’m not taking a side on if voiding the popular vote is or isn’t a good thing – it certainly has its dangers. But for me, Trump was a textbook example of the sort of dangerous, unqualified demagogue the EC was, under the elitist-check theory, intended to stop. If it doesn’t act as that check in a case like Trump’s, for good or for I’ll, then I don’t see what the use of it is.

#12 Comment By Rambler89 On January 4, 2017 @ 2:38 am

As you say, “At every stage, the Founders wished to create a system that defended minorities from the majority, and moreover to protect smaller and less powerful regions and communities from their overweening neighbors.”

Just imagine the statement the DNC would issue if Clinton had lost the popular vote and won the Electoral College by even the narrowest minority (let alone the sweeping geographical statement made by the College this time).

I’m sure one key point would be that the Electoral College serves to preserve America’s diversity, as represented by geography, from the tyranny of a narrow majority.

#13 Comment By Craig On January 6, 2017 @ 7:37 am

Overall, I didn’t find this persuasive.

Based on a book I’m reading now, the design of the electoral college was flawed from the beginning. (See “The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy” by Bruce Akerman). Maybe it should have been redesigned at some point, rather than fixed by a series of patches.

Nor does the outcome of the most recent election seem to be a reflection of any particular constitutional principle. It wasn’t a case of small states prevailing over large states, or a protection from regionalism. Mostly, it was a case of the election being decided in a few moderate to large battleground states, with Trump doing better than any other candidate in history in terms of securing a large number of electoral college votes with narrow victories in a handful of closely contested states. ( [3])

#14 Comment By Steve On January 11, 2017 @ 3:27 pm

“At every stage, the Founders wished to create a system that defended minorities from the majority…” I’m not sure how you write this line with a straight face, considering many founders were slaves owners and most others were tolerant and accommodating of slave ownership.