Kennon-Green & Co. Global Asset Management and Value Investing

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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