We are facing a constitutional crisis. The Electoral College system, intended to protect liberty, has produced a profoundly unconstitutional president-elect. How did we get to this point?
Vision of liberty
In 1787 James Madison wrote in Federalist Paper No. 10—an essay intended to drum up popular support for the newly drafted Constitution—that “mischiefs of faction” can easily take over a democracy. He called a faction “a number of citizens”—majority or minority—who act “adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.” Factions engage in “mischiefs,” acting to “invade the rights of others.”
To curb factions, the Framers of the Constitution designed a representative democracy. Popular voters would not make major decisions. Madison was clear: representatives, including electors, were to be Americans’ insurance against attacks on liberty.
Madison thought, though, that the larger the nation, the harder it would be to carry out such attacks. In a more diverse country, those with “unjust or dishonorable purposes” would be less able to organize.
To be clear: liberty was the stated bottom line. The electoral system was intended to preserve it. Any faction that violated the rights of others was to be stopped in its tracks.
The unconstitutional president-elect
Yet in 2016 the Electoral College system—not the popular vote that Madison feared—has produced a spectacularly antidemocratic president-elect.
The centerpiece of Trump’s campaign was the attacking of liberty. He flaunted harassment and discrimination—ridiculing the disabled, belittling Mexicans, deriding Muslims, refusing to disavow boasts of criminal sexual assault against women, and ignoring his own history of housing discrimination against African Americans. He courted the attention of the Ku Klux Klan, engaged in TV ads in anti-Semitic rants, and supported threats of violence toward those not sharing his interests.
These are acts of intimidation—acts that when they occur in public schools violate federal standards of education. Federal warnings on bullying are clear: schools must take steps to reduce “a climate of fear and disrespect,” which “can seriously impair the physical and psychological health of its victims,” or schools risk federal prosecution.
Yet Trump succeeded by spewing hate. The public climate of intimidation unleashed at his election invades the rights of all Americans, including even those who voted for him. For when some of us are harassed, none of us are free.
Further, the policies proposed by the president-elect and his faction, according to the ACLU, violate no fewer than five constitutional amendments: the First, Fourth, Fifth, Eighth, and Fourteenth Amendments. These policies include a “plan to amass a deportation force to remove 11 million undocumented immigrants; ban the entry of Muslims into our country and aggressively surveil them; punish women for accessing abortion; reauthorize waterboarding and other forms of torture; and change our nation’s libel laws and restrict freedom of expression.” Proposals to reinstate a House Un-American Activities Committee targeted at Muslims or set up a Muslim registry leave no guesswork about the mischiefs a Trump administration intends to engage in.
Liberty for the few
So how, with the stated purpose of protecting liberty, did the Electoral College system produce Trump? The answer goes back as well to the Founders.
In the same Federalist Paper No. 10, Madison revealed that the Founders mistrusted direct democracy, and they did so because of property. Interests of landowners and landless would always differ. What set his propertied class apart, Madison went on, was “the diversity of faculties of men.” Landowners got where they were, in other words, through natural ability. Direct democracy was dangerous because it would increase the power of the rabble crowd. The Founders themselves were deeply undemocratic.
“Excess of democracy”
In fact, as Madison wrote in private, they feared an “excess of democracy.” Landowners knew they were outnumbered, and they fantasized the majority rising up in democratic rebellions to oppress them—as they had just witnessed in Shay’s Rebellion. Direct democracy was to be avoided at all costs.
Slavery also blinded them. At the Constitutional Convention, Virginia planters jerry-rigged the design of government to favor less-populous Southern states by winning the 3/5 concession—a vile law counting each slave as 3/5 of a person to increase Southern population numbers and award Southern states more representatives. Instituting electors extended this same power of slave states to presidential elections. Madison was explicit about this: “The right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election on the score of Negroes. The substitution of electors obviated this difficulty.…” The ploy worked—spectacularly. Nine of the first twelve presidents hailed from slave states. Racism lies at the core of the Electoral College.
Governing by white men
In the Founders’ minds, citizen rights belonged only to white men, and governing could be done only by propertied white men. The writers of the Constitution wanted an Electoral College for preserving rights—but only for the few.
Liberty gained over time
The Constitution was an incomplete document. It pointed toward liberty at the start but left it to succeeding generations to work their way toward that vision over time. Where Americans have found our greatest hope, where we have been most proud of our country, has been in our ability to expand the national net of freedom to include people the Founders never considered. The Fourteenth Amendment outlawed slavery and the 3/5 rule. The Nineteenth Amendment extended voting rights to women. The Twenty-fourth Amendment outlawed the voter-suppressing poll tax. The history of constitutional amendments is a history of nullifying, step by step, the legal ability to invade the rights of others.
Electoral College violates rights
In 2016 we face a constitutional crisis because of that chasm still yawning between vision and reality. Democracy for all is not yet realized. The Electoral College is the focus because it has become the tool of groups who “invade the rights of others.” How?
Through voter restriction laws
Because the Electoral College system exists, individual votes in swing states carry more weight than in other states. Swing states then become the focus of intense politicking, including laws intended to limit voting rights.
In this election 14 states, led by Republicans, adopted new voter restriction laws, most of them aimed at black people. North Carolina’s was so blatantly racist that it was struck down in July, though its effects lingered. Wisconsin’s voter ID law resulted in thousands not voting when the state did not issue timely IDs. US District Judge James Peterson said in a July 29 ruling that voters in Wisconsin could get an ID “only after surmounting severe burdens.” By giving more weight per vote to those states where voter suppression took place, the Electoral College betrays its own constitutional purpose of protecting liberty—and preserves at the same time the racism at the core of the Electoral College system.
Section 2 of the Fourteenth Amendment specifies that any state engaging in voter suppression can have its representation in government reduced proportionally, though this section has never been enforced.
Through a winner-take-all system
Most states give one candidate all their electoral votes. The winner-take-all system has no basis in the Constitution. It did not take shape until the 1880s, after a hundred years of power struggles among the states. It is a leading reason why in spite of this nation being large in size, it is still vulnerable in presidential elections to mischiefs of faction.
The Electoral College hijacks liberty. It is choosing a candidate who enjoys invading the rights of women, minorities, disabled, and poor. It does so by elevating the vote in states where voter suppression took place. The Electoral College is handing power to a faction intent on eroding civil rights. It has become the tool of profoundly antidemocratic forces—including those who prefer their government to look like the Founders: white privileged men of European Christian descent. It drags into the twenty-first century the paternalism and racism and sexism of the Founders without even a nod to the—limited—liberty they wrote into the Constitution. The Electoral College system is enacting the worst of their blindness and none of their vision. It is unconstitutional.
Madison and the Founders were wrong about representative democracy. It does not prevent groups of citizens from invading rights. It can, as in this election, empower them.
This country has arrived at a place the Framers couldn’t imagine—extending civil rights to people with religions and genders and skin colors and countries of origin unthinkable in the Framers’ time. But the same fault lines of race and class and gender and religion run through this country now as at the start. Those who fall on traditional sides of privilege may fear that extending liberty to others will diminish their own. It is just as tempting now as in 1787 to be suspicious of direct democracy—and for the same reasons.
The majority does not always choose liberty, but in this election it did. A strong majority said yes to Hillary Clinton—more votes than for any US president except Barack Obama, with a larger margin of victory than accompanied Kennedy, Nixon, or Carter to the White House.
The solution is clear: Accept the voice of the people in this election. Follow the popular vote, and inaugurate Hillary Clinton as president.
Not only is Trump an unconstitutional candidate, but the process that made him the apparent winner is unconstitutional as well. A Trump presidency is an egregious violation of the Constitution and should be resisted by every legal means possible. If the electors do not do their constitutional duty on December 19 and elect Clinton, the courts must intervene. All other candidate choices amount to mischiefs of faction.
For in 2016, only the direct democracy the Founders were so leery of can save the vision of democracy that we’ve been working toward ever since.
Update Dec. 12: For more info on the winner-take-all system of the Electoral College, see Harvard law professor Lawrence Lessig’s argument that WTA violates “one person, one vote”—and how to remedy it.
Note from Priscilla: I once thought I’d get a PhD in US history, so I took a year of doctoral seminars at UC Berkeley. How human beings treat one another is closely related to how we treat the Earth. Respectful relations in one arena is not possible without respectful relations in the other. I blogged about democracy here and here, and about the 1787 Constitutional Convention here.
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