A Constitutional Accident Waiting to Happen

By Amar, Akhil Reed | Constitutional Commentary, Summer 1995 | Go to article overview

A Constitutional Accident Waiting to Happen


Amar, Akhil Reed, Constitutional Commentary


In the category, Most Mistaken Part of the Current Constitution, I nominate the electoral college. The ingenious scheme of presidential selection set up by Article II and refined by the Twelfth Amendment was a brilliant eighteenth century invention that makes no sense today. Our system of selecting Presidents is a constitutional accident waiting to happen.

I nominate the electoral college in part because some constitutional scholars might tend to overlook its flaws. Constitutional Law courses typically stress courts, cases, and clauses that get litigated. Despite the vast constitutional significance of the Presidency, it is woefully understudied in law schools today. (It gets far more attention in political science departments--a vestige of the early twentieth century world in which academic study of the Constitution generally nestled in political science, while law schools stressed "private law" like contracts and torts.) Constitutional Law scholars may likewise prefer to focus on clauses that can be "fixed" by creative judicial interpretation. The electoral college can be fixed only by a formal amendment, and talk of constitutional amendment scares many law professors.

But amendment is exactly what is called for here; the reasons that made the electoral college sensible in the eighteenth century no longer apply. The Framers emphatically did not want a President dependent on the legislature, so they rejected a parliamentary model in which the legislature would pick its own leader as prime minister and chief executive officer. How, then, to pick the President? The visionary James Wilson proposed direct national popular election, but the scheme was deemed unworkable for three reasons. First, very few candidates would have truly continental reputations among ordinary citizens; ordinary folk across the vast continent would not have enough good information to choose intelligently among national figures. Second, a populist Presidency was seen as dangerous--inviting demagoguery and possibly dictatorship as one man claimed to embody the Voice of the American People. Third, national election would upset a careful balance of power among states. Since the South didn't let blacks vote, southern voices would count less in a direct national election. A state could increase its clout by recklessly extending its franchise--for example, if (heaven forbid!) a state let women vote, it could double its weight in a direct national election. Under the electoral college system, by contrast, a state could get a fixed number of electoral votes whether its franchise was broad or narrow--indeed, whether or not it let ordinary voters pick electors.

None of these arguments works today. Improvements in communications technology, and the rise of political parties, make possible direct election and a populist Presidency--de facto, that is our scheme today. Blacks and women are no longer selectively disenfranchised, and states no longer play key roles in defining the electorate or in deciding whether to give the voters a direct voice in choosing electors. …

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