Originalism may well include some consideration of consequences, but in a disciplined manner that prevents justices' values from driving the process.
The American people have learned much about the Electoral College since the November election. Much has been learned about the origins, evolution and contemporary functioning of our system of presidential elections. We have debated the merits of our system versus allowing a simple national popular vote. We have seen an unprecedented campaign to try to get electors to vote against their pledge. And some have tried to instruct us on the nuances of the Founding environment that created our unique electoral system.
But among all the good information and honest debates have arisen a misleading half-truth aimed at undermining the Electoral College.
Law professor Paul Finkelman ominously opines that Americans would be “disgusted” if they knew the real origin of the Electoral College was in protecting slavery. Following the 2016 election, the New York Times called for the abolition of the Electoral College, labeling it “a living symbol of America’s original sin.” In Time, constitutional law scholar Akhil Reed Amar recently offered that “Standard civics-class accounts of the Electoral College rarely mention the real demon dooming direct national election in 1787 and 1803: slavery.”
The Electoral College as a living symbol of slavery? Slavery doomed the dream of a national popular vote for President? Reading the debates at the Constitutional Convention regarding how to elect a President would disgust us? What evidence is there for such extraordinary and hyperbolic attacks?
Yale’s Akhil Reed Amar, who may be the originator of this peculiar reading of the Constitution, cites one remark on one day by one member of the Constitutional Convention. And that remark comes two months before the final Electoral College is debated and settled upon. In his remarks, James Madison discusses the importance of separated powers and the difficulty of electing a President, offering that a direct election by the people may be the best option so far on the table. However, he offers that the down side of a direct popular election would be that the Southern states would have no hope of electing Presidents since their voting populations were so much smaller than those in the North. He offered having electors represent the people might obviate this imbalance.
It’s a thin reed that gets thinner when you realize that Madison was responding to New Jersey’s William Paterson, who spoke immediately before him and endorsed a system of electors. Paterson, you see, was a dedicated opponent of slavery and surely did not propose such a system in order to uphold the institution he was otherwise working to undermine. As is typical of opponents of the Electoral College, Professor Amar seems more interested in tarnishing the institution than providing a complete and nuanced picture of the Constitutional Convention and the institution’s origins.
If not slavery, what “doomed” a direct national election for President? Even to frame the question like this is a misrepresentation of the situation, pushing contemporary values back into the 1780s. James Wilson of Pennsylvania and Gouverneur Morris of New York both proposed such a direct national election, but they made up a small minority at the Convention and were well outside the mainstream of discourse on the question. To assume some kind of conspiracy or nefarious slave interest was behind denying the American people a direct national vote for President is just not supported by the evidence. Rather, the objections to such a system were numerous and came from all sides. Some thought the people could not logistically come out to participate in a national election. Others found the people themselves to be ill-suited for settling upon a suitable character for such a high office. Others feared the power of an organized interest like the Society of the Cincinnati to sway such an election, or the dangers of agitating a national populace and causing divisions of passion and interest. And still others offered that it would be unlikely that a large and diverse population spread over the continent would be able to settle upon a single candidate for office.
But even to say this is to create the wrong impression. A direct national vote was only one of many proposals at the convention and it was among the least seriously considered. Other proposals considered included having Congress choose the President, or the state Governors, or state legislatures. Of these proposals, an election by some subset of Congress was by far the most popular over the course of the debates. And the problems inherent in a congressional choice point us to the real origins of the Electoral College and it has nothing to do with slavery.
An election by Congress, they believed, would have given us the likelihood of the choice of President being made by relatively knowledgeable and serious citizens familiar with the candidates and the needs of the nation. On the other hand, it would make the President the creature of the legislature and thereby undermine the carefully crafted system of separated powers and checks and balances that the Framers found essential to the preservation of liberty. The creation of the Electoral College allowed for an establishment of a temporary body of citizens who could make an enlightened choice for President but who would then dissolve back into the populace, where they could not unduly influence a President who might seek to curry their favor.
What does slavery have to do with this? Almost nothing at all. To taint the Electoral College with the poison brush of slavery one first needs to leap back to the Great Compromise that created the Congress itself. In this compromise, small states were protected by being given equal representation in the Senate. Large states were given offsetting power in the House of Representatives, which was based on population size. The Electoral College math simply replicates this compromise to be used to elect the President, with each state getting electors equal to their representation in the House and the Senate. To bring slavery into it, one must then take a second leap into the three-fifths compromise where the Convention agreed to count each slave as three-fifths of a person for the purposes of allocating representation in the House of Representatives. That terrible injustice was eventually rectified in the Fourteenth Amendment and today’s Electoral College math, like the math creating Congress, has nothing to do with counting slaves.
The opponents of the Electoral College, in attempting to undermine support for the institution, have painted it with an unfair half-truth that distorts the historical record as well as the constitutional principles undergirding the system itself. Their slings and arrows of social justice, however, would be more honestly aimed at the existence of the House of Representatives. That would once have seemed absurd. But, one assumes, they will someday be fine with that, too—if Republicans continue to win majorities in that institution.