Where does our Presidential selection system come from?

If you try to look to the Framers for guidance about how the Presidential selection system should be handled today, you are going to be disappointed.

If we concentrate specifically on the electoral college rather than looking at what it may represent to Constitution making, we find, first of all, that the records and therefore the evidence are sketchy and slight. The electoral college appears to have been created at the end of a long hot summer by some very tired men who were not at their best. You can call it a mistake but certainly must conclude that imputing meaning to it that the framers never contemplated is a historical mistake. The latter is what often happens in discourse concerning originalism, which is discussed at the below.

Proof that the selection system was not well thought out by the people who created it is that its creators neglected to specify that electors make it clear whether they were voting for the president or the vice president when they cast their ballots. The result was that Aaron Burr tied Jefferson for the presidency in 1800. The result of that was the 12th amendment. This was a foreseeable dilemma caused by allowing a very important component of the selection of the nation’s chief executive to slip through the cracks.

If we look more broadly at the process of crafting the Constitution, what we see is a set of people who on the one hand believed that government derives its just powers from the consent of the governed (Madison believed “the people are the only legitimate source of power”) and did not want the legislature to select the President. But on the other hand, they were, in the words of Gouverneur Morris’ notes, “anxious even for an immediate choice by the people.” They wanted to create something that was impossible–a government of the people, by the people, for the people in which the selection of those who were to govern was thoroughly cushioned from the direct influence of those being governed. As a pragmatic last resort, they chose to keep the electors physically apart. Again from Morris’ notes, “As the Electors would vote at the same time throughout the U.S. and at so great a distance from each other, the great evil of cabal would be avoided. It would be impossible to corrupt them.” (See Robert Dahl, How Democratic is the American Constitution?, Yale, 2d, paperback, 2003, at page 77). Obviously technological advances in communication and information eliminated the presumed virtue of distance within two generations.

As Jack Rakove put the matter in Original Meanings, page 267 (Vintage, paperback, 1997), “The electoral college…owed more to the perceived defects in alternative modes of election than to any great confidence that this ingenious mechanism would work in practice.” Robert Dahl said it more bluntly: “The arrangement they finally cobbled together at the last minute was adopted more out of desperation, perhaps, than out of any great confidence.” How Democratic, page 74.

The electoral college in fact never functioned as those who created it hoped it would. It became a tool of political parties even though as the great historian Richard Hofstadter pointed out, the American Constitution was “A constitution against parties.” And when the constitutional convention convened in 1787 there was nothing approximating the parties that existed in 1800.

The founders didn’t like political parties. They seemed too much like the factions which they felt created mischief in Britain. Jefferson declared in 1800 that “We are all Republicans. We are all Federalists.” This may have been his aspiration, but it already was not true when he said it.

To the framers’ surprise “the election of the president would soon emerge as the most important stimulus for political innovation and the creation of alliances running across state lines.” Rakove, 266. Indeed, the “institution of the presidency encourages a two-party system.” George Edwards III, Why the Electoral College is Bad for America, (2d edition, paperback, 2011), page 177. More than that, since the advent of mass media and virtually unlimited spending on elections, the Presidential candidates, through the primary and in the general election, effectively re-invent and then run the political parties, not the other way around. For a very recent report to this effect, see Donna Brazile, Hacked (2017).

If we wish to increase participation, to assure that candidates must appeal to all the populace in order to win a plurality, and to bind voters more consistently to the belief that the process legitimately selected a winner, then we must cause the Presidential selection process to fortify political parties in every state and region. We have to make sure that the rules of this process cause the participants to look for vote, and to weigh the importance of every vote equally. Because the Supreme Court has clearly interpreted the Constitution to give states the power to select electors as they choose, McPherson v. Blacker, 146 U.S. 1 (1892), the states can adopt a selection mechanism that achieves these goals — none appears superior to the National Popular Vote Interstate Compact. By contrast, there are arguments against replacing the states’ authority to experiment with selection mechanisms by means of a constitutional amendment. Encouraging states to adopt new ways to solve problems with democracy is consistent with our history.

Even though “[n]o part of the constitution revealed the flaws in its design more quickly than the provision for the electoral college,” Robert Dahl, page 77, some who adhere to the school of thought called originalism search for the meaning of the text of the Constitution in respect of the electoral college.

The premise for originalism is the basic premise of positive law: law is enacted at a moment in time by someone with authority to make it law. The law is set at that moment and can only be changed by whatever process is set up for the purpose: courts can overrule their earlier decisions, the legislature can repeal or modify a statute, the Constitution can be amended under Article V.

But how do we know what the law means, or meant, at the moment it was enacted? This has always been the difficult question as regards law generally and the Constitution.

In its first guise, usually called original intent originalism, the meaning of the Constitution was what the people who framed it intended it to mean. So, it was “the intent of the Framers,” which was gleaned from sources like the Notes of the Convention, etc. This was heavily criticized on two grounds. First, as a normative matter, why should the intent of the Framers matter? They were not authorized lawmakers. They were like an outside lobbyist who drafts legislation that Congress enacts. We don’t look at the “intent” of the lobbyist, but that of the members of Congress. So, if anyone’s “intent” is determinative here, it would be the intent of the ratifiers at the various state conventions, as it was their action that turned the Constitution from a proposal into a law. A second criticism was more practical: how do we know the intent of the Framers anyway? There were 55 men, many of them never spoke, the notes are sporadic and unclear, etc.

In response to this criticism, originalists modified their theory and offered what is usually known as “original understanding” originalism. This shifts from the Framers to the ratifiers in the various state conventions. In so doing, it answers the first objection to original intent originalism, but it makes the second criticism worse: there were 11 conventions (13, but Rhode Island and North Carolina did not ratify until several years later, after the Constitution has gone into effect). Each of the 11 had hundreds of participants. Many did not speak, the records are of wildly disparate quality, different issues were debated in each, etc. etc. etc.

Justice Scalia offered the response to this criticism, offering the current version of originalism, which is usually called “public meaning originalism.” First, he argued, the law is not the intent of lawmakers or of individuals in the lawmaking body. It is what is actually enacted: the text. Of course, textualism is nonsense, so we must still look somewhere for meaning. According to Scalia, the meaning is the “public meaning” the language would have had in 1787 (or 1791 in the case of the Bill of Rights), when the law was enacted. This solves the problem, as we now have a reference point for meaning that doesn’t depend on the inner minds of a particular body of people.

But what does it really mean? Does he mean what ordinary readers would have understood? That can’t be right, as this is technical legal language (which is why Courts are its unique interpreters). So how do we make sense of this?

Here is how: imagine a statute enacted yesterday. A case comes up today that requires us to apply the statute and the language isn’t obvious and clear on the face of it. How do we interpret it? Scalia had much the same criticism of statutory interpretation as he did of constitutional interpretation. We don’t look at the subjective intent of the individual lawmakers. We look at the text, and we understand the meaning of the text (where it is unclear) in light of legal rules for interpretation that are accepted as the way to find meaning.

Let’s think about those rules. They have a number of relevant qualities.

First, they are not so precise that reasonable people can’t disagree about how they apply or what they mean in a particular case. But that’s okay: we accept that, accept the possibility of reasonable disagreement, so long as the appropriate interpretive rules are genuinely applied. Using those rules makes an interpretation legitimate, even if there is disagreement about the particular result.

Second, the rules of interpretation are a matter of legal convention: the acceptable rules of interpretation are the accepted rules of interpretation. Accepted, that is, by the legal community and, chiefly, by judges. Of course, these change over time. Go back to the 1980s, and it was an acceptable rule of statutory interpretation to look at committee reports and legislative history. That is no longer accepted. Or, in constitutional law, it was acceptable in the 1980s to make arguments based on morality, while arguments drawn from a dictionary would not have been accepted. A few decades later, acceptance of those rules has reversed. The point, in any event, is that, at any given moment in time, there are interpretive rules that are acceptable, interpretive rules that are not acceptable, and (often) rules that are on the borderline — either moving into or out of acceptability. An interpretation based on acceptable rules is legitimate, even if we disagree about what the rules say in the particular case. An interpretation based on unacceptable rules is not legitimate. And disagreement about the legitimacy of an interpretation that relies on borderline rules is really disagreement about whether the rules are “in” or “out.”

Public meaning originalism is just the same, except that it tells us that the rules we use to determine the legal meaning must be the rules used at the time the Constitution was adopted. Any other rules violate the underlying positive law premise of originalism.

So what are the problems here:

First, originalists do not consistently follow their own premises. The “rules” they use bear no resemblance to the way anyone at the time interpreted the text. Instead, they resort to things like dictionaries and lots of outside sources that no one in the late 18th and early 19th centuries consulted.

But there is, second, a much more fundamental problem: at the time the Constitution was adopted, there was not yet agreement on its nature and so not yet any agreement on the proper rules to use in interpreting it. It was, as yet, unclear whether to interpret the Constitution like a statute, like a contract, like the common law, like some mix, or using wholly new rules. Much of the disagreement in the early years arises from this uncertainty and confusion, and it was not until the late 18-teens or early 1820s that a consensus began to emerge. (The best history on this is in Ted White’s volume for the Holmes Devise on the Marshall Court.) And so long as this is true, one can’t employ public meaning originalism because the premises on which it rests are themselves unsettled. There literally was no accepted public meaning because there was, as yet, no accepted way to define or determine that meaning. When originalists do their thing, in other words, they are literally just making things up — inventing rules and pretending that they would have been used back then. They are just taking sides in an unsettled political debate — not over meaning, but over the process of determining meaning.

So that’s the theoretical problem with originalism. To which one needs to add the practical points stated earlier: the underlying premises were all wrong and needed to be adapted, so the Constitution and constitutional structure have been evolving from day one. Imagine the blue print for a boat (let’s call that the Constitution). Now you build the boat and launch it (let’s call that the government). Once at sea, you discover all sorts of problems in the design: it doesn’t work right, doesn’t work the way you thought it would when you designed it. But you need to stay afloat, so you make adjustments and changes. You move the engine from the front to the back. You jerry-rig a new waste system. You add new seats for people. And each of these changes leads to other consequences that require still more changes, one change adding to another. Now you’ve been sailing for 250 years, so the actual boat bears little resemblance to the one you designed and originally launched. If a new problem arises, no one would go back to the original blue print for an answer. The only thing that will do is make things worse, because it’s no longer relevant. You would still go back and look at it, because it would be the smart starting place to understand how the boat took its present shape. But the boat has been in the process of being designed all along. So, you need to understand the principles on which it was started, and understand how those principles and their manifestations in practice have evolved, so you can understand the boat you have today and make sensible repairs.

Fortunately, the Founding generation understood this perfectly well. Which is why they themselves were not originalists.

*Richard Tedlow obtained his doctorate in American history from Columbia University, retired as MBA Class of 1949 Professor of Business Administration at Harvard Business School, and currently is employed at Apple University. Reed Hundt obtained his law degree from Yale, was chairman of the Federal Communications Commission from 1993 to 1997, and has practiced law and served on various boards for many years. Both are board members of Making Every Vote Count.