This article is an uncle’s response to a lad’s question shortly after the presidential election of 1968.
Bertel M. Sparks, the uncle, worked his way out of "poverty stricken" Appalachia through law school and two graduate degrees in law. He served on the faculty of New York University School of Law for eighteen years and is now professor of law at Duke University. He is the author of two books and numerous articles in legal periodicals.
In reply to your question about my opinion of the Electoral College, I am in favor of retaining it. Before abolishing any institution that has been with us for such a long period, we should take time to ask why it came into existence in the first place, how it has worked in the past, and what substitute we have to offer. It is my opinion that a careful consideration of these questions will lead to the conclusion that the Electoral College is not so bad after all.
It seems that when our Founding Fathers were about the task of writing our Constitution they were almost unanimous on two basic ideas. They wanted a government strong enough to keep the peace and they feared any such government that was that strong. They had learned from their experience under King George that unlimited power in human hands was a dangerous thing. Being a highly educated group, their knowledge and understanding of history had taught them that tyrannical power was not confined to any one form of government. It could exist whether its form was that of a monarchy, aristocracy, theocracy, or even a democracy. Their experience under the Articles of Confederation had also taught them that a government without adequate power could not protect its citizens in the exercise of their commercial and social relations with each other. It was a recognition of these diverse and somewhat conflicting policy goals that led them to the establishment of a form of government that made possible the greatest exercise of personal freedom and the development of the highest level of material well-being that has ever been known anywhere else on the earth before or since. How did they do it?
The scheme agreed upon by that little group of men gathered in Philadelphia in 1787 was not a democracy but a republic, characterized by a separation of powers and a division of authority. To them this meant much more than a separation of the legislative, executive, and judicial departments of government. Regardless of what separation of the departments could be achieved, the men who were laying our foundation feared the consequences of having all three concentrated in one central government. That much had been tried before in various parts of the world, and under such arrangements tyranny had often been the ultimate result even where the election of the officials imposing the tyranny had been by popular choice. The added feature was a federal system where the local units of government, the states, were made independent entities and not just instrumentalities of the central power and the central government was made one of strictly limited powers.
The exercise of even such limited powers was carefully circumscribed. The Senate was to represent the states, with all states being equal for this purpose, and the House was to represent the people. The chief executive was not to be chosen by the legislative body, as is the custom in many countries of the world, but was made independent of them. Yet the power he could exercise without their approval was strictly confined. Although the judges were to be appointed by the President, they could not be removed by him and therefore it was highly unlikely that the judiciary would ever be dominated by any one President. It was no accident that the Representatives and Senators were given terms of different lengths and the election of Senators was so arranged that not more than one-third of them could be changing at any one time. And the President’s term was made of different duration from that of either House or Senate. This somewhat awkward staggering of terms was to avoid the instability that could result from having the whole government change, even by popular vote, at a moment of great emotional upheaval.
The Electoral College was invented as a part, although maybe only a small part, of this general scheme of separation of powers and division of authority. It was a scheme for letting the people choose but at the same time avoiding some of the dangers inherent in a direct choice. Not the least of the dangers they had in mind was that in a time of national turbulence, such as we might be approaching at the present time, sufficient emotional excitement might be generated to elect a popular and glamorous personality such as a Julius Caesar or a Napoleon Bonaparte. Of course, these dangers exist under any system of government. The important question is under what system can the extent of the dangers be diminished?
Any present-day student of the American government knows that this system of separation and division of powers with each department and each political unit serving as a check on every other did not work out exactly as intended by the Founding Fathers. None of the three branches of the central government has ever behaved exactly as the founders anticipated, and the powers and responsibilities of the state governments have declined to a degree that would probably frighten any delegate to the Constitutional Convention out of his wits. The Senate was never an impartial body of wise men serving to check the popular passions likely to be present in the House. Both the chief executive and the courts quickly developed into something that would probably be unrecognizable by any but the most discerning of the Fathers. And it is doubtful if any of them anticipated the emergence of either political parties or the extensive administrative machinery that now plagues the central government. The Electoral College never became the uninstructed gathering of superior and sober men calmly deciding upon a suitable citizen to serve as the Chief Executive for the coming four years.
But the fact that the formal expectations of the Fathers were never realized should not blind us to the fact that the basic framework which they established has served us well for almost 200 years. The central core of the tradition they established is still with us and it is now our tradition. The Electoral College is part of that tradition. While it is not the representative body exercising an independent judgment as was originally intended, it does have a function to perform. It is at least an accounting device registering a summation of the will of the people on a state-by-state basis. Being on a state-by-state basis, and that not strictly according to population, it has some tendency to decrease the likelihood of a President winning primarily through an emotional appeal giving him an overwhelming advantage in one section but probably making him obnoxious to a majority of the voters in other parts of the country. It also makes it a little more difficult for one social or economic unit to become dominant. What is even more important in my mind, it continues to remind us that we are a federal republic whose separate political units still have vitality.
And after all these years is anyone in a position to say the Electoral College has produced any bad results? There have been a few instances when the electoral majority did not coincide with the popular majority and also two instances when the electors failed to elect anybody and the question was thrown into the House of Representatives. But can anyone rightly say that any of these instances have produced bad results? I believe not. And in each instance the matter was handled peacefully and without any substantial amount of public excitement. That within itself is no small accomplishment when it is remembered how frequently a change of administrations is accompanied by varying degrees of disorder in many foreign countries. It might even be pointed out that the two Presidents who were chosen by the House of Representatives, Thomas Jefferson and John Q. Adams, are regarded by many as being among our more able Presidents.
Much has been made of the unfortunate things that could happen under our present system. But in view of the fact that none of the feared disasters has ever happened, I wonder if the danger isn’t more imaginary than real. I find it hard to argue against almost 200 years of uninterrupted success! Even if no candidate had received an electoral majority in 1968, is there any reason to believe a peaceful and satisfactory solution could not have been reached? Let’s explore the possibilities.
First of all, the electors, except in a few states, are not legally bound to vote with the party that elected them. It is possible that if no candidate had won a majority on November 5, enough electors would have switched their allegiance to give somebody a majority when the electoral votes were cast. If that had been done, is there any reason to believe the result would not have been a reasonable one or that it would not have been accepted by the public? If the electors had stood by the candidates for which they had been chosen and nobody had received a majority, is there any reason to believe the House of Representatives would not have acted in a responsible fashion?
Even if the House had acted so irresponsibly as to fail to choose anyone, there is still another route to follow. In such a case the Vice-President is to serve as if he were President. The election of the Vice-President would be by the Senate. Would the Senate be so irresponsible as to fail to choose a Vice-President?
So it seems that in order for us to end up without a lawfully chosen President, the Electoral College, the House of Representatives, and the Senate would all have to act in an irrational and irresponsible way. And as we moved from one of these bodies to the other the failure of each would place that much more moral pressure upon the next and would dramatize to the public the seriousness of the occasion. The period of uncertainty during which the matter was being resolved would tend to be a period of sober reflection. Tempers would cool a bit and the danger of rebellion would be lessened rather than increased. With so many safeguards in operation, it is unlikely that we would ever find ourselves without a lawfully chosen and reasonably acceptable Chief Executive. At least I haven’t heard any other system proposed that holds greater promise of permanence and stability than has been demonstrated by the one we have.
The Clash of Opinion
It were best to draw the veil of oblivion over the weakness of character which like a moral contagion afflicts this good land in these later years, except for the menace to our free institutions contained therein. Intolerance of difference of opinion is death to them. Tolerance of such difference is not enough to maintain them. Respect for it is still insufficient to secure their true development. It must be sought, invited and encouraged, for only through the clash of opinion and the attrition of thought can man press onward towards the goal of truth and the perfection of civilization.
JOHN W. BURGESS, Recent Changes in American Constitutional Theory