The Constitution Faces a Challenge (And It Will Probably Fail)

The Constitution faces a challenge later this month when electors cast their votes for the next President of the United States. What is almost certain to happen is that electors from states in which Donald Trump earned more votes than Hillary Clinton will cast their votes for Trump. Hillary Clinton will earn the votes of electors of states in which she received more votes than Trump. Some states even mandate that this should happen, although electors cannot be forced to vote in this manner. Two states—Nebraska and Maine—direct their electors to vote somewhat differently, but neither state is large enough to make a difference in the election.

What is distressing, of course, is that Hillary Clinton garnered about 2.8 million votes more than Donald Trump. Trump revels in his victory, indulging his expansive ego in a victory tour. Yet Trump is the country’s second choice for President. The people wanted a President Hillary Clinton.

Were the Electoral College to operate as was originally intended, wise electors would fail to give Trump the votes needed to move into the White House and, instead, would give that privilege to Mrs. Clinton. The only reason the Electoral College was created was to protect the nation from the popular vote for an unqualified or dangerous demagogue. Federalist Paper #68, presumed to have been written by Alexander Hamilton, offers this observation in favor of the presidential election mechanism specified by the Constitution:

It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.

The constitutional mechanism ran into problems in early elections and was modified by the Twelfth Amendment in 1804. The amendment was particularly concerned with the election of the Vice President and need not concern us here.

Alas, the Founding Fathers did not anticipate the immediate development of political parties. Pretty much from the beginning, electors represented parties, not simply wise and judicious upstanding citizens. Gatherings of electors never became deliberative bodies. As the system has developed, electors are chosen by parties from the party faithful, and the likelihood that any one of them will vote for someone other than his or her party candidate is vanishingly small. It is particularly ironic that electors meet in their own states to protect them from the influence of electors elsewhere. In our wired modern society, this merely saves travel money.

In 2016, the Electoral College has the potential to save the United States from the unqualified, loose-canon plutocrat that is Donald Trump. Electors could act as the Founding Fathers apparently intended and protect the country from the collective insanity that was the 2016 election. Given that the Democratic candidate is competent, sane, and preferred by more voters, making this happen would be an easy moral choice.

For the Electoral College to make Hillary Clinton President would require that 38 electors chosen by local Republican parties cast votes for Clinton, rather than Trump. That this is as likely as snow in Death Valley in August is obvious from the fact that, although so many high-profile Republicans were part of (or sympathetic to) the Never Trump movement, that movement virtually disappeared when Trump was declared the victor in November. Being in power was too seductive. Making a deal with the Devil and risking the Republic was not too high a price to pay.

So, the Constitution faces a challenge next week. Can it protect us from an egomaniac supported by billionaires, white nationalists, religious fanatics, and hopeful, but ignorant, working people? The Constitution will certainly fail this test, and Donald J. Trump will officially become the next President of the United States.

Assuming that the expected outcome occurs, the people of the United States should immediately begin an energetic and sustained campaign to amend the Constitution to provide for the direct election of the President and Vice President. The Constitution must be amended. State laws to give electoral votes to the popular winner is a kluge that is simply not good enough. A Donald Trump must never be elected again.

Postscript. Some have argued—I, myself, have argued—that our electoral system encourages candidates to campaign throughout the country, as electoral votes are to be had everywhere. In fact, however, the system has the opposite effect. The Republican candidate need not campaign in New York, and the Democratic candidate need not campaign in Alabama. It is safely assumed that those states will go to the Democratic and Republican candidate, respectively. In a popular-vote system, however, the Republican would certainly want to campaign in New York, and the Democrat would likely want to campaign in Alabama. The perverse influence on campaigning is yet another reason to prefer voting for our chief executives by popular vote, as does every other democratic country on the planet.

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