The Cult of the Majority

(or You Don’t Have a Right to Vote for the President of the United States)

Countless Americans mistakenly believe that the constitution says we are a nation, “of the people, by the people, and for the people”.  Though it’s a nice sentiment, many don’t realize that the line came halfway through the nation’s history in the Gettysburg Address by President Lincoln and isn’t part of our constitutional framework at all.

Consider, for a moment, that people actually believe they have the right to elect the President of the United States.  It is completely absurd given the constitutional, legal, and political history of this country, but they actually are under the impression it is somehow their constitutional right to determine who resides in the White House.  Yet, the constitution clearly states that this decision is up to the electoral college.

Each state is given a specific number of electoral college votes based on the total representatives it has in Congress (every state has 2 Senators and then a certain number of Representatives in the House of Representatives based upon population).  But here is the kicker: How those electoral college delegates are chosen is a power vested in the individual state legislatures.  The state legislatures can decide what they want to do with that power.

A Brief Explanation of the Electoral College

In recent history, the state legislatures have allowed individual state citizens to vote in a popular election with a winner-take-all system (Maine and Nebraska being the exceptions) so that the majority winner in that state gets all of the electoral delegates allocated to the state.

For example, in the 2008 Presidential election, McCain barely won the State of Missouri.  As in, barely won.  But under current Missouri law, McCain received all 11 of our electoral college delegates (we have 11 because Missouri had 2 Senators and 9 Representatives in the House, or 11 total, at the time – though that number will decrease in the future due to the recent census and population shifts – we lost a representative so our electoral delegates will fall to 10 since we will only have 8 Representatives in the House).  In Missouri, we allow the political party of the winner to choose the individual electoral college delegates that they send to Washington to elect the President in December.

But it doesn’t have to be this way.  The State of Illinois could modify, through its legislature and governor, its own law and assign the power to decide the state’s electoral college delegates to Oprah Winfrey or even have the decision made by throwing a pair of dice on the floor of the state’s biggest casino. It could do this because the state legislature is the one that holds the constitutional power to determine how the electoral college delegates are chosen.  There is no “right” for an individual citizen, or a political party, to weigh in on the decision except to the extent that a legislature has decided to assign its power to the people or the party, which is its constitutional prerogative.  It is simply common and customary for states to permit this.

The Electoral College Is Free to Ignore the Will of the People

Furthermore, there is a constitutional question as to whether or not the state has the right to bind their electors to vote a certain way (half of states currently have laws in place that bind the delegates to vote according to the election results).

We haven’t faced a significant enough constitutional crisis to force the issue but, theoretically, once the electoral college met, it could literally decide that whomever serves as the current CEO of General Electric is also the President of the United States and nobody could do anything about it as long as the requirements for office were met.  Likewise, if after the 2008 President election, the electoral college had decided that Warren Buffett would make a better President than Barack Obama, it could have voted him into office and told the nation, “We’re sorry.  But we think you made a mistake.  Buffett would do a much better job so we are using our power to put him in office.”

Many people don’t even realize that the President is actually elected in December when the electoral college meets, not in November.  That is, Obama wasn’t elected President in November 2008.  He was elected in December of 2008 when the electors decided to cast their votes for him.  Alternatively, you could argue that he was technically elected when the new Congress met the first week of January to count the votes of the electoral college cast a few weeks prior.

It’s clear from even a brief overview of history that the founding fathers were not populists.  They were elitist through-and-through.  They wanted a check on the great, unwashed masses.  They were brilliant men but they were not men of the people.  Should their safety net be invoked, I imagine there would be riots as people were suddenly forced to confront the actual system in which they live but the constitutional question is crystal clear in that it is the electoral college that has the ultimate power to determine our President.  If the electoral college can’t make up its mind due to a tie, the power reverts to the House of Representatives.

This actually happened in the election of 1800 when the electoral college tied and the House had to vote on the next President of the United States.  The electoral college decided upon Thomas Jefferson, who became the 3rd President after having served as Secretary of State for President Washington and Vice President for President Adams.  (He is known for holding “the triple crown” of Secretary of State, Vice President, and President.)  The point is, Jefferson won 61.4% of the popular vote but tied in the electoral college.  The House of Representatives ultimately selected him as President but it didn’t have to do so.

Of course, you also have to realize that the checks and balances in the constitution are so great that if the electoral college did exercise its discretion to elect someone that the people didn’t want, the House of Representatives could find a way to impeach the President, the Senate could vote him out of office, and they could continue to do this until a candidate acceptable to the people took power.  In that regard, our system is rather brilliantly designed.

There Is a Very Real Cult of the Majority Rising Right Now That Threatens the Republican Principles Upon Which the Country Was Founded

A cult of the majority rule has taken up over the past 50 years since civics and social studies education has been relegated to the back burner.  This call to have direct elections on all federal judges, to put minority rights up for grabs at the ballot box, and to “American Idol” every political decision is a danger to the framework of the republic that has served us so well.  The founding fathers wanted a system of checks and balances in place.  They really did believe – as offensive as it is to point out – that the majority was too stupid to rule itself except through carefully controlled mechanisms that channeled human passions in productive ways.  That belief, while having some significant downsides, also gave us one of the longest, most peaceful, most prosperous societies in the history of human civilization.  Somehow, though, those same founders have been deified.  People who have no sense of historical accuracy complain about the “elite” today while simultaneously venerating them, not realizing they were the elite of their time.  General Washington was worth $500 million.  Jefferson was writing from his mansion in the hills of Virginia.  Franklin was the richest man in the colonies for much of his life.

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  • mvymvy

    The current system does not provide some kind of check on the “mobs.” There have been 22,000 electoral votes cast since presidential elections became competitive (in 1796), and only 10 have been cast for someone other than the candidate nominated by the elector’s own political party. The electors are dedicated party activists of the winning party who meet briefly in mid-December to cast their totally predictable votes in accordance with their pre-announced pledges.

    If a Democratic presidential candidate receives the most votes, the state’s dedicated Democratic party activists who have been chosen as its slate of electors become the Electoral College voting block. If a Republican presidential candidate receives the most votes, the state’s dedicated Republican party activists who have been chosen as its slate of electors become the Electoral College voting block. The winner of the presidential election is the candidate who collects 270 votes from Electoral College voters from among the winning party’s dedicated activists.

    The U.S. Supreme Court has upheld state laws guaranteeing faithful voting by presidential electors (because the states have plenary power over presidential electors).

  • I think you’re missing the forest for the trees, mvymvy. The fact that the *state legislatures* have the right to force electors to vote how they wish (for example, to remain loyal to the party that won the popular vote) merely underscores that the power is vested with the legislature and not the people. The legislatures have temporarily lent their discretion to the popular vote and in many cases could take it back quickly.

    The fact that the electoral college has adhered closely to popular results doesn’t remove the benefit of having it as a check on the majority. Just because we don’t use a safety valve doesn’t mean it isn’t valuable.

    Consider that we have never called a constitutional convention. Yet, the constitution permits us, with approval of enough states, to go into a national conference and completely propose a re-written constitution. This power is so expansive that most of us fear a constitutional convention because the delegates are not bound by anything – they could literally draft proposed amendments that required everyone to be tagged and monitored for life (doesn’t mean we’d have to approve it, but you get the idea).

    A constitutional convention remains a powerful way to fix the government if things went terribly, terribly wrong. The fact we have never used it doesn’t take away from its value, just like the electoral college safety valve doesn’t take away from its importance.

    I am not so much interested in the electoral college as it stands but rather in the idea that some people suffer from this perception that the government is designed to treat every man’s opinion equally. The founding fathers knew that the average guy was incapable of knowing enough to govern a nation wisely. Do you really think a baker in Iowa, in 99% of cases, is capable of knowing how to regulate privately negotiated derivative contracts? Of course not!

    We are a republic, not a democracy. Not everything is up for a vote and not everything is a popularity contest. That is one of the things that makes us so strong as a nation.

  • mvymvy

    A “republican” form of government means that the voters do not make laws themselves but, instead, delegate the job to periodically elected officials (Congressmen, Senators, and the President). The United States has a “republican” form of government regardless of whether popular votes for presidential electors are tallied at the state-level (as has been the case in 48 states) or at district-level (as has been the case in Maine and Nebraska) or at 50-state-level (as under the National Popular Vote bill).

  • CollegeStudent

    Hey Joshua,
    I have been reading a couple of your posts. I stumbled across a blog about dress shirts and ended up in the political section. I never truly grasped politics in HS. I passed all the tests and received high marks, but I was just regurgitating information I didn’t truly understand.
    I have really enjoyed reading a lot of your posts. I usually keep my mouth shut when people talk politics because I have not taken a firm stance. However, I have enjoyed your posts and they have been very insightful. Thank you for taking the time to write all these articles. It really makes a lot of the information I learned in HS come to life.

  • Austin

    “General Washington was worth $500 freakin’ million dollars. That is pretty elite to me. Jefferson was writing from his mansion in the hills of Virginia! Franklin was the richest man in the colonies for much of his life! Men of the people my ass. They knew exactly what they were doing.”

    Reminds me of Boy Staunton’s view of Jesus. You are incredibly pompous, Kennon.

  • Joshua Kennon

    The comment system was flagged by the other readers as abusive so it was kicked to moderation. That is why you didn’t see it show up after you posted it.

    Normally, I defer to the decisions on the community but since you are new, I am going to go ahead and approve your post with a warning. The rules around here when you comment:

    Awesome = “I think that is an incredibly idiotic idea because …[insert reasoning and facts here]”

    Not Awesome = “I think you are an idiot”

    You can disagree, argue, attempt to persuade, rebate, pontificate, correct, agree, disagree, or counter-discuss anything with me or any of the other posters. You can attack ideas with violent fervor. You can’t attack people.

    For example, re-reading this post, my thesis can be stated as:

    1. Given that the founding fathers (with some notable moral objectors, such as John Adams) purposely disenfranchised a vast majority of the population from voting on the grounds of race and gender, to ascribe to them a populist world view is not historically accurate. and

    2. Americans do not understand the rights to which they are entitled because, as a whole, they do not understand the system as presently designed.

    If you disagree with either of those two conclusions, state your reasons. Post evidence. Convince me (or the other readers) that you are correct.

    If you can play by those rules, welcome to the site. I look forward to hearing your reasoned opinions on whatever topic we’re discussing at the time, especially given your particular sociodemographic profile and where you live in Florida, both of which are almost certain to influence your worldview. Diversity to a conversation is valuable and you can add that so I hope you do stick around in the future. (Though, for future reference, don’t be rude. My name is not Kennon. My name is Joshua.)

    • Erwin

      I have been around the site long enough to start to understand how you think. The mental model approach has changed my life and I am seeing it now.

      You couldn’t help but leave the last paragraph because most intelligent people will get the irony, and only the ones who don’t will comment on it.

      It is a way for you to weed out those who can’t pick up on subtext or do deeper analysis because they won’t be able to have the kind of conversations this site attracts. I notice you have a lot of more in-depth conversations with some people on the site than others, even who disagree with you strongly.

      Here is my counter. Have you thought about those with autism? An autistic person would not be able to pick up on that sort of thing but they might still be analytically intelligent and useful to the site. I feel like there is so much subtext in your writing that you only tend to anger those who lean toward that end of the spectrum. It is clear that sometimes you say one thing but you are imparting the exact opposite meaning.

      You are busy but if you can I would like to know how close or far off I am. I will send my contact information through the mail bag form. If you don’t respond I understand.

  • Chance Pemberton

    Given the amount of money Corporate America contributes to our so called democratic process, I am convinced that the president and most of congress are appointed by the real power behind the proverbial curtain.