Attacks on the Electoral College itself are not new. What is new is the demand being made by many progressives, including prominent constitutional scholars, that Electors themselves abandon their constitutional duties in the name of “fairness”…
As most readers probably are aware, Green Party presidential candidate Jill Stein launched a campaign to “recount” electoral results in three important states where Donald Trump outpolled Hillary Clinton (though she recently dropped her effort in Pennsylvania after missing a deadline). The presumed goal is to overturn the election’s results by finding enough missing or fraudulent votes to swing the electoral count from Mr. Trump to Mrs. Clinton. Few believe the recount will succeed in these terms. But the attempt may continue to focus attention on the Electoral College—that much-maligned institution being blamed by many on the Left for denying them a continued hold on presidential power.
Attacks on the Electoral College itself are not new; academics for decades have decried it as undemocratic because it interposes an institutional, federal mechanism between the people, taken as an undifferentiated mass, and control over the presidency. The claim is that the Electoral College’s intrinsic character as (with very minor exceptions) a state-based voting system means voters in sparsely settled states like Wyoming “count” more than those in highly populated states like California. There may even be elections in which the candidate who receives the most popular votes (e.g. Al Gore in 2000, Hillary Clinton in 2016) loses out on the presidency for lack of a majority in the Electoral College.
Of course, our Constitution is not and never was intended to establish a direct, mass democracy. The Electoral College is a reflection and reinforcement of America’s federal character, insuring that a few highly populous and uniformly partisan states cannot control the nation’s destiny. Progressives (broadly speaking, people of the left) do not like federalism, or anything else that gets between the central government and the people—again, taken as an undifferentiated mass, rather than members of various communities, intermediary institutions, and political organizations. This is not new.
What is new is the demand being made by many progressives, including prominent constitutional scholars, that Electors themselves abandon their constitutional duties in the name of “fairness”—by which is meant, of course, helping defeat progressives’ political enemies. Specifically, three professors at the University of Texas—Jeffrey Tulis, Sanford Levinson, and Jeremi Suri—are repeating to Electors the same arguments once urged on judges to make them abandon their constitutional duties to serve “justice” and, not coincidentally, undermine our system of limited, constitutional government.
Messrs. Tulis, Levinson, and Suri jointly signed an essay fittingly titled “The Hail Mary Pass that Could Deny Donald Trump the Presidency.” In it, they urge Electors to “think deeply about the sanctity of our democracy and the national interest” and vote for a candidate other than the one for whom they agreed to vote. “The Electoral College must perform its constitutional role, providing a check against tyranny,” they declare, by nullifying the last election.
The gentlemen from the University of Texas work hard to appear as reasoned advocates of constitutional stability. They even cobble together a few words from Alexander Hamilton, stating that electors “vote for some fit person for President” and resist the “heats and ferments” behind “any man who is not in an eminent degree endowed with the requisite qualifications” to serve as Chief Executive. But the goal is clear: to keep America moving toward the kind of centralized, managed mass democracy the Framers of our Constitution would abhor.
The gentlemen from Texas confidently assert that Electors have a duty to ignore their agreements (and, in some cases, laws) binding them to vote for Mr. Trump because, well… Trump. As one has heard persistently from the mainstream, progressive media, so one hears from the predictably progressive professorate: Mr. Trump is a racist, sexist, homophobe who attacks all kinds of good people (even the actors in Hamilton!) and presumably would foment hatred, white-supremacism, and the elimination of civil rights at home and abroad. No real evidence is provided, of course; the parade of horribles is merely a repetition of charges rooted in campaign rhetoric, media smears, and the active imaginations of the same people who for decades have portrayed every Republican candidate as the next Hitler.
Of greater concern than the all-too-common calumnies is the all-too-familiar tactic of calling on people in important positions to ignore their clear constitutional duties in favor of some “higher” call. The formula is as disingenuous as it is common: create the illusion of apocalyptic crisis and so stampede guileless officials into doing your bidding. They must “save” the nation by casting aside crucial constitutional provisions like the separation of powers or their own agreements and oaths of office. In this way, Franklin Roosevelt was empowered, not just to answer the emergency of the Great Depression, but to institutionalize a form of administrative state hostile to our Constitution. In this way, Lyndon Johnson’s Great Society furthered that damage in prosecuting “wars” on poverty and other social ills. In this way, the Supreme Court became a locus of unchecked power in the name of “simple justice.” In this way, the Constitution’s structural protections of ordered liberty against unrestrained power have been undermined in the name of a “living constitution” that changes with the times—or, rather, the policy preferences and degree of power enjoyed by progressives.
The gentlemen from Texas claim that Electors “must fulfill their clear constitutional duty of denying” the presidency to an “unqualified demagogue.” Of course, were it clearly true that Mr. Trump is some crazed Hitlerian figure, the situation might be sufficiently dire to justify Electors’ breaking faith with those who chose them for the sole and specific purpose of casting a vote for him. This is what makes it convenient to have so many incendiary charges, so much ideological bigotry, and such willing allies in the mainstream media to magnify and even create from whole cloth flaws in Mr. Trump’s character and proposals. The gentlemen from Texas almost literally tell Electors that Mr. Trump will commit impeachable offenses soon after taking office, and that they have a duty to launch a pre-emptive strike against him. That Electors are not impeachers (that role is reserved for Members of Congress) is apparently of no concern to the gentlemen from Texas.
A conservative, of course, should have less faith in mass hysterics and more in our constitutional system. But then, the gentlemen from Texas are no conservatives. Mr. Levinson, for example, has written of the “imbecility” of the Constitution and the need to dismantle its separation of powers and its checks and balances in the name of majority power. The Constitution must “live,” in his view, in that it must be re-shaped beyond recognition to serve progressives’ ideological program. It is not surprising, then, that Mr. Levinson should have little faith in constitutional mechanisms—other than that Electoral College to which he looks now for immediate (and passing) advantage.
The rhetorical strategy on display, here, seems almost silly in its reliance on ideological hysteria. But we should not forget that this very strategy has worked many times to undermine our constitutional system of government. It may well work again, if not to prevent Mr. Trump’s accession to the presidency (highly unlikely), then as a means of continuing the decades-long assault on the very constitution the gentlemen from Texas claim to defend.
Americans have suffered for eight years under the most radical President in our history. President Obama has brushed aside constitutional procedures and laws themselves to further a political agenda intended to transform the very character of our people through Executive Orders and the mere words of mid-level bureaucrats in the Department of Education and other agencies. He has been able to do so in large measure because scholars like the gentlemen from Texas have provided him with professorial cover in the form of constitutional theories deriding the Constitution and a model of public duty that derides fidelity to that Constitution. We do not need a Constitution that “lives” in this way; we need a living sense of duty to our constitutional republic. That, and not any hysteria-induced election nullification is the strongest defense we can provide for ordered liberty.
Books on the topic of this essay may be found in The Imaginative Conservative Bookstore.