In the wake of the 2000 presidential election, numerous commentators discovered what they took to be flaws in the presidential election system. For Hillary Clinton, for example, the election of George W. Bush demonstrated that the Electoral College should be abolished in favor of a French-style national election on a one-man, one-vote basis. Displaying her characteristic combination of ideological commitment and historical ignorance, Clinton opined that it simply was not right that the victory should go not to the recipient of the most popular votes, but to the winner in the Electoral College.
Writing in the Claremont Review of Books for Fall 2007, the University of Texas School of Law’s Prof. Sanford Levinson takes up the same issue. Levinson, a prominent liberal legal academic who was once my Professional Responsibility professor, concedes that "I myself would endorse deviations from pure majoritarianism." He then offers as an example of a non-majoritarian provision of the federal Constitution so contrary to majoritarian theory that no one supports it the provision for deciding presidential elections in which no one receives a majority of the Electoral College vote.
According to the Twelfth Amendment, "if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President, the votes shall be taken by states, the representation from each state having one vote." After describing this provision, Levinson says, "I have yet to find any defenders of the electoral college [sic] who are willing to defend this peculiar feature of the system."
Ah, Sandy, but you never asked me. I can defend the House’s role in resolving presidential elections in which no one receives an Electoral College majority as easily as the veto power or bicameralism, and certainly far more easily than universal suffrage or judicial review. And what, exactly, is wrong with it? Levinson’s objection is that in case the House had to decide the issue with each state casting one vote, "Vermont’s single representative [would have] the same power as California’s 53 representatives."
This objection echoes Thomas Jefferson’s objection to the apportionment provision of the 1776 Virginia Constitution. George Mason’s handiwork retained the traditional English, thus colonial Virginian, practice of apportioning the legislature geographically. Thus, Jefferson complained, an individual’s vote in Virginia’s least populous county was worth seventeen times as much as an individual’s vote in the most populous.
Yet, Levinson’s objection and Jefferson’s are not the same at all. Jefferson’s complaint was that fellow citizens of a common republic (Virginia) should have equal votes in elections for their chief executive, while Levinson’s is that the constituent republics in a federal republic, the states, should not have equal voices in choosing their common chief executive.
Levinson, like Senator Clinton, makes the mistake of thinking of the United States of America as a nation, not a federal republic. In Senator Clinton’s defense, she likely has been influenced to reach that conclusion by "experts" such as Professor Levinson. On the other hand, Clinton’s conclusion is affected by the fact that she desires the power of a national chief executive, not a mere federal president.
What is the difference between "national" and "federal," and why should you care? In short, a national government is, theoretically, a completely centralized one. If it has local subdivisions, those subdivisions (provinces) exist solely for the convenience of the center. This is the kind of regime that France has had since the French Revolution.
On the other hand, a federal regime is one in which the central government’s power is limited, with most power remaining in the local units (in America, the states). The United States Constitution was sold to the states during the ratification process as a federal one. It could not have been ratified on any other basis, since the Revolution had been fought in the name of the federal model outlined by Thomas Jefferson in A Summary View of the Rights of British America (1774). The national model, in which a central government was sovereign (that is, possessed of unlimited power), was the one the British Parliament adopted in the hated Declaratory Act (1766).
In that act of 1766, the British Parliament claimed to be the kind of national government adored by such as Mrs. Clinton and Professor Levinson. In such a system, it makes sense that a national poll should be taken and the candidate with the most votes should be elected. Where the electorate is understood as made up of distinct communities, of different states that preexisted the federal constitution, however, it makes sense that those communities should have equal voices in making the ultimate decision. In other words, the Twelfth Amendment followed naturally from the assumptions behind the American Revolution.
Some scholars posit that the Electoral College was expected to serve only as a filter of popular opinion, and that Congress would usually decide among the three top candidates who had been essentially nominated by the College. The advantage of such a system would be that people more knowledgeable of the candidates’ personalities, of their characters, would choose among them. A Bill Clinton, a Gary Hart, or a Richard Nixon would be unlikely to be elected in such an arena — or at least, so the argument goes. It would have pleased the father of the Electoral College, Luther Martin of Maryland, to have small states play an equal role in the ultimate selection of presidents.
Levinson wants to make the United States Government more national — less federal — by depriving the small states of their equal voices in the presidential election system. This reform would be typical of the history of the American Constitution: the small states and minority section were promised a federal system, and over time the majority section and the judges (egged on by such as Sanford Levinson) have made it more national. And they have done so while telling the minority that it had no choice but to succumb. All of which has made the system both theoretically and practically a worse system than it was originally.
If it is problematic that individual Californians’ votes count less in the Senate, in the Electoral College, and in the occasional House of Representatives voting for president than those of Wyoming citizens, the solution is easy to identify: California should be divided into numerous less populous states. If it were, its citizens’ and former citizens’ votes would count more than they do now. The subdivision of megastates such as California should occur anyway, for numerous reasons — but that is a different column.
Kevin R. C. Gutzman, J.D., Ph.D. [send him mail], Associate Professor of History at Western Connecticut State University, is the author of The Politically Incorrect Guide to the Constitution.