Tags: Hillary Clinton | Presidential History | chief executive | dnc | tom perez

Electoral College Imperfect But Preserves Nation

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Monday, 30 Oct 2017 03:31 PM Current | Bio | Archive

Democratic National Committee (DNC) chairman Tom Perez wrongly suggested last Tuesday that the Electoral College, which provides for indirect election of the president, and which made possible the election of Donald Trump and the loss of Hillary Clinton, "is not a creation of the Constitution. It doesn't have to be there."

Mr. Perez misspoke, as the Electoral College is right there in Article II of the Constitution, governing the selection of our chief executive. His speech, at Indiana University was actually a plea for a scheme favored, primarily by Democrats, to have states pass legislation binding their presidential electors to cast votes for whoever wins the popular vote in the presidential election. It is not all clear, since it would fly in the face of the clear intention of the Constitution, that such legislation would be upheld by the courts. It is worthwhile seeking to understand why, even if it were constitutional, it would be unwise.

Mr. Perez (and Mrs. Clinton) who, not surprisingly has actually called for the elimination of the Electoral College purport to be acting on democratic (with a small "d") principles, but they both conveniently forget that the U.S. is not a democracy, and is, instead, a republic (with a small "r"). Not generally understood today, is the difference between a democracy and a republic, and why the Framers of our Constitution chose the latter and rejected the former.

The Framers were students of ancient and modern political history. They understood, as did Aristotle, that pure democracies were inherently unstable; citizens of a democracy often thought only of their own individual interests, and their societies thus tended to degenerate into anarchy and chaos. Thus, Plato and other ancient and renaissance thinkers came up with the "republic," a society literally devoted to the public good, rather than the gratification of individual desires, and, as the institution developed in early modern times, one implemented through representative government rather than direct democracy.

The Framers understood that by breaking with Great Britain they had repudiated monarchy and hereditary aristocracy. They further agreed that any government in America had to be bottomed on only the sovereignty of the people, but it was a sovereignty cabined by well-understood republican principles. When Benjamin Franklin purportedly told an interlocutor asking, "What form of government have you provided for us?" "A Republic, if you can keep it."

In his response to the question, Franklin was invoking not only the idea of a government devoted to the common good, but one fit only for a virtuous citizenry that could implement altruistic as well as other republican characteristics. These included a respect for individual rights, especially the rights to protection of person and property, the rights to due process, and the rights to be free from unreasonable searches and seizures.

All of these were understood to be general features of republican government, and all of these, together, were regarded as core elements of the rule of law itself. When John Adams claimed that ours was a "government of laws and not of men" he was referring to these widely understood characteristics of true republican governments, and seeking to distinguish them from arbitrary tyrannies of the past, whether monarchies, aristocracies, or democracies.

Some of our late 18th century judicial decisions also make clear that there were certain principles of republican governments that always prevailed, even if they were not expressly written in Constitutions.

Among these were the notions that no republican legislature could take one citizen’s property and give it to another without paying compensation, no legislature could punish someone for a crime which was not so when a defendant committed particular acts, and no legislature could make a citizen judge and party in his or her own case. While it was understood that a pure democracy had no such boundaries, and, indeed, could jettison the rule of law itself, this was not possible for republican governments.

The easy and familiar rhetoric of democracy often leads us to forget why the framers constructed a republic with representative government, checks on popular arbitrary actions, separation of the legislative, executive, and judicial branches, and a central government with limited and enumerated powers.

The DNC's Mr. Perez, and the schemers who would do away with the Electoral College, forget its original purpose, which, though transformed somewhat (the idea was that presidential electors would exercise their own judgement, not simply follow the will of the party preference of the voters of their states) the Electoral College still operates in a manner differing from a national plebiscite — it helps secure broad-based geographical support for the chief executive.

Just as we could not have had United States without the original constitutional compromise giving the smaller states extra representation in the Senate and concomitantly in the Electoral College, the Electoral College preserves our republican scheme, and indeed, the nation itself.

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). To read more of his reports — Click Here Now.

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StephenBPresser
Just as we could not have had United States without the original constitutional compromise giving the smaller states extra representation in the Senate and concomitantly in the Electoral College. The Electoral College preserves our republican scheme, and indeed, the nation itself.
chief executive, dnc, tom perez
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2017-31-30
Monday, 30 Oct 2017 03:31 PM
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