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Liberals stunned by Republican Donald J. Trump’s presidential election last week are casting about for answers.
ADVERTISEMENTLosing Democratic candidate Hillary ClintonHillary Diane Rodham ClintonWhite House accuses Biden of pushing ‘conspiracy theories’ with Trump election claim Biden courts younger voters — who have been a weakness Trayvon Martin’s mother Sybrina Fulton qualifies to run for county commissioner in Florida MORE blames FBI Director James Comey’s public reopening of the investigation into her email system shortly before the vote. Hill Democrats seem to think the answer is that the party didn’t run harder to the left — a strange diagnosis after losing middle class votes in Rust Belt states. Many blame fatigue with the Clinton’s, the political obstacles to a party winning three presidential elections in a row, or the sluggish economy.
Now the losers of the 2016 election are turning their fire upon the Constitution. Clinton will win by a slight majority of the vote nationwide, but will not take the oath in January because of the Electoral College. Trump won a significant share of the electors, with more than 300 votes of the 538 at stake.
As they did after losing George W. Bush’s 2000 election by a majority of the Electoral College but not the popular vote, Democrats attack the Constitution’s method for selecting the president as fundamentally undemocratic.
Former Obama Attorney General Eric HolderEric Himpton HolderTrump official criticizes ex-Clinton spokesman over defunding police tweet Obama to speak about George Floyd in virtual town hall GOP group launches redistricting site MORE went on a talk show to demand that the United States elect the president by simple nationwide majority vote, while failed 1988 Democratic candidate Mike Dukakis declared that the nation should have thrown out the Electoral College “150 years ago.”
These liberal officials have a point. The Electoral College is not democratic, if by democratic they mean rule by simple majority. It allocates votes to each state by the combined number of Senators and Representatives, which means that states, as states, receive 100 of the 538 (almost 20 percent) of the electors.
This means that small states have a greater voice in the presidential choice than justified by their populations — Trump and Clinton campaigned in Nevada and New Hampshire, for example.
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The Electoral College further encourages candidates to campaign state by state, particularly in the large “battleground” states that Clinton ultimately lost, such as Florida, Ohio, Pennsylvania, Michigan, and Wisconsin. If Democrats had their way, candidates would ignore the states and campaign solely in the population centers that Clinton easily won, such as New York, Los Angeles, and Chicago.
But the Electoral College’s exaggeration of the power of the states is not some bizarre mistake or a constitutional version of the appendix.
The Framers specifically designed the Electoral College to dilute democracy and favor the states. Democrats who disagree are at war with the federalism that the Framers hardwired throughout the Constitution itself.
They forget that fundamental features of the Constitution are even more anti-democratic than the Electoral College.
The very existence of the Senate, where the Constitution allocates two Senators to each state, runs directly counter to the idea of popular representation. Delaware, with a tiny population, has the same number of Senators as giant California.
And yet the Constitution requires the agreement of the Senate, where the majority of the people have no voice, to most of our most important decisions.
Our nation can pass no law without the approval of the Senate.
The nation can make no treaties, our most significant instrument of foreign policy, unless two-thirds of the Senate consents.
The president cannot appoint his own cabinet, other executive branch officers, or Supreme Court Justices and federal judges, without the Senate.
Congress cannot recommend amendments to the Constitution or call for a new constitutional convention without two-thirds of the Senate.
The Framers underscored the importance of the states in our constitutional system by making each state’s right to two Senators the only provision in the Constitution which can never be amended.
If Democrats oppose the undemocratic nature of the Electoral College, they should seek to uproot other restraints on democracy.
They should start with judicial review, which gives nine federal judges, appointed for life, the power to strike down legislation. They could continue with the Bill of Rights, which exists solely to prevent the majority from infringing on the rights of individuals, no matter how great the benefit to society. They could finish with the administrative state, where unelected bureaucrats exercise most nation regulatory power.
Liberals, of course, would never oppose these undemocratic aspects of our government, because they more often than not advance their agenda.
The Electoral College has other positive features, despite its complicated process.
To the Framers, its main purpose actually was to increase, not decrease, the role of the people in the selection of the president, while dampening the chances of a demagogue seizing power. In the Constitutional Convention, the main alternative to the Electoral College was selection of the chief executive by the legislature — the approach eventually adopted by most western democracies.
But the Framers rejected parliamentary democracy because they wanted to give the president independence, all the better to check the legislature and ensure decisiveness and vigor in the executive.
At the same time, they wanted to dilute democracy and insert a chance for deliberation between a popular election and the choice of the President.
Gouverneur Morris declared in the Convention that an:
“election by the people at large throughout so great an extent of country could not be influenced by those little combinations and momentary lies which often decide popular elections within a narrow sphere.”
Or, as Alexander Hamilton explained:
“Talents for low intrigue, and the little acts of popularity may alone suffice to elevate a man to the first honors in a single state.”
But a nationwide election would prevent the worst from rising high. Morris predicted that the people “will never fail to prefer some man of distinguished character or services,” or of “continental reputation.” Only if the electors could not agree on a single candidate would the election go to the House, where states would vote by delegation (again enhancing the voice of the states).
If Democrats oppose the Electoral College, it only is in keeping with their broad hostility to the Constitution’s founding of a republican government, not a democratic one.
They are also only arguing to benefit themselves now, not to defend principle. For if they were serious, they should argue that the United States adopt a parliamentary democracy — indeed, the very goal of Woodrow Wilson, the intellectual father of progressivism.
In most of our democratic allies, such as Great Britain, Germany, and Japan, the majority party in the legislature selects a prime minister, who becomes head of the executive branch as well. But even under that system, Hillary Clinton would still have lost, as Republicans have built a huge majority in the House of Representatives over the last three elections.
Nothing better shows how liberal attacks on the Electoral College amount to nothing more than sour grapes and constitutional cherry-picking.
Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley.
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