The Liberalization of the U.S. Constitution

Wise or otherwise, it’s currently en vogue for Democratic candidates to support replacing the Electoral College with a national popular vote. As expected, Republicans, who promote a purer interpretation of our founding fathers’ wishes, push back against such a “radical” proposal.

Today, we’ll leave aside the two parties’ obvious political motivations for their respective stances.[1] I’m also not looking to rehash the pros and cons of the Electoral College itself. Instead, I’d like to make a case that, for better or for worse, such a change of our presidential vote shouldn’t be seen as “radical” at all. It wouldn’t be revolutionary as much evolutionary.

Such an evolution would feel right in line with Constitutional history. With great consistency, our Constitution has become increasingly liberal.[2]

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The Original Constitution: Context

For most of the 1780s, including the latter part of the American War of Independence (1775-1783), America’s original 13 states were governed by the Articles of Confederation. Perhaps “governed” is too strong a word, however. It was a notoriously weak document that lacked the ability to tax, enforce laws, and regulate commerce. It also lacked executive and judicial branches to coordinate the government or settle interstate disputes.

With that critical description, one might wonder why the Articles were created in a such a way. The answer is context. The system was devised during the war, when 13 newly independent states fought against an overbearing government after years of British control. Thus, when it came time to make its own system, America decentralized the government and turned over nearly all authority to the states, so the states could govern themselves with almost total sovereignty. That is indeed why they were called “states” in the first place, a term most of world uses for countries.[3] This “confederation” of states had a national Congress where each state had one vote, but that Congress had little authority outside negotiating foreign policy or overseeing western lands that were not yet part of a state.

With no conservatives in decision-making positions — typically loyalists, conservatives had either fled to England or kept their mouth shut during a dangerous political climate — liberal initiatives shaped not only this new quasi-national government, but each state government as well. Like the Articles did, individual states overcompensated from the old style of authoritarian government. Each state constitution gave tremendous authority to an elected legislature, while executives and judges, which reminded Americans of unpopular royal governors and courts from the latter-day colonial era, were relegated to weak, secondary branches. The legislature was king, and the people controlled the legislatures. Liberalism had carried the day.

Not having that conservative ballast proved to be a problem. The Articles failed miserably. In their haste to not be centralized or authoritarian, American leaders had overreacted and created a system on the opposite end of the spectrum. The nearly sovereign states became trade and boundary rivals. A disjointed economy that had racked up considerable war debt remained sluggish. Multiple currencies confused prospective merchants and traders. A constantly poor national government asked cash-starved states for taxes and were regularly rebuffed. Meanwhile, state governments — which, remember, were mostly just elected legislatures — were perhaps too responsive to the people’s demands, and they often prioritized short-term demands, like inflationary paper money, over long-term wisdom.[4]

It was time for a change. So, in the summer of 1787, 55 representatives from 12 of our original 13 states converged in Philadelphia to fix the broken political system of the young United States.[5] This convention of delegates aimed to unify the economy, strengthen the national authority, and reduce the power of the “mob” over the government. Though in the subsequent months many states resisted the change — some had grown accustomed to minimal national interference at the state level — the convention controversially offered a replacement to the Articles of Confederation. In time, all 13 states ratified the United States Constitution.

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The Original Constitution: Text

Compared to the Articles, the Constitution created a radically different government. Among many changes, it severely reduced the power of the people over the government. For example, the Constitution raised the national authority over the states in nearly every way; it could therefore tax, enforce laws, and regulate commerce.

Additionally, the structure of the new federal government ensured a “mobocracy” could not control it. The Constitution replaced the Articles’ single-branched government — which was just Congress — with three, and each of the three had a degree of independence from the people.

1. Article I of the Constitution created a considerably different Congress than existed under the Articles. It was bicameral — two chambered — and no laws could be passed without a majority vote in both. The “lower chamber” — the House of Representatives — would be directly elected by the people, as it is today. Unlike today, however, the original Constitution gave state legislatures the power to appoint a state’s U.S. Senators, known as the “upper chamber.” Though state legislatures were elected by the people, it still provided a filter between the people’s wishes and who went to the national capital to pass national legislation.[6] Since the House alone can’t create a law, the “lower chamber,” or “people’s chamber,” would always need approval from the unelected “upper chamber.”
2. Article II created the executive branch — the president and vice-president. The office of the president, like the Senate, was also unelected. (Originally, some states didn’t even keep track of the people’s presidential preferences.) Instead, the Electoral College picked him or her. Electors from each state, picked by the state legislatures (and today by state parties), would have their own mini-election to determine the president. This process erected another barrier between the people and a powerful government official. They were free to vote for whoever they liked. Assuming re-election, presidents could serve four-year terms in perpetuity.
3. Article III created the judicial branch — the federal courts. As we now see with the high profile Supreme Court vacancies, they are appointed by the president, who the people didn’t elect, with the advice and consent of the Senate, who the people also didn’t elect.

In total, the American people, federally speaking, initially only directly elected the House of Representatives. That’s one-half of one-third of America’s branches — just one-sixth of the federal government. Meanwhile, the people who voted were all white men, with some states having land-owning requirements for suffrage. Liberal this was not.

If it seems to you that the Americans again overly course-corrected, you’re not alone. Many charged that the new government too closely resemble Britain’s.[7] In America’s conservative reaction to the Articles, power had become centralized in a national capital that had a lot of power over the states and was much less beholden to the whims of the people.

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Amending the Constitution

If we had never amended the presidential voting system or the Constitution, we could indeed call today’s proposed replacement of the Electoral College as “radical.” Yet, we have seen changes. For example, states gradually tied their Electoral College votes to their state’s popular vote.

More broadly, meanwhile, we’ve seen significant changes to the Constitution since its ratification. Many of these changes suggest that America, much more slowly than with the abrupt change from a British colony to the Articles of Confederation, is returning power to the American people.[8] Consider the following:

• 1865: The 13th Amendment abolished slavery.
• 1868 and 1870: The 14th and 15th amendments formalized citizenship for all Americans, including former slaves and descendants of slaves, and guaranteed their voting rights.
• 1913: The 17th Amendment required U.S. Senators to be directly elected.
• 1920: The 19th Amendment gave women the right to vote.
• 1951: The 22nd Amendment limited presidents to two terms.
• 1961: The 23rd Amendment gave Washington DC electoral votes. Previously, its citizens had no say in a presidential election.
• 1971: The 26th Amendment lowered the national voting age from 21 to 18.

Together, these eight amendments represent about half of the Constitutional amendments since the Bill of Rights (we’ve had 17 since the original ten), and their theme is clear: the people’s Constitutional authority increases over time.[9]

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Constitutional Conclusions

There was a time when women’s suffrage or the people electing the Senate would have been seen as “radical” or “revolutionary.” Now, of course, we see them as natural parts of our politics. Imagine trying to roll them back!

The latter change — direct elections of Senators — is particular apt here. Though it was once seen as sufficient that the people elected state legislatures and state legislatures elected the Senate, we now see that particular filter as an unnecessary barrier between the people and their U.S. Senators. The 17th Amendment demolished that barrier, and as a result all of Congress became directly elected by the people. This demolition increased voter control over the branches from one-sixth of the federal government to one-third. In one amendment, our authority over the federal government doubled.

It could happen again. The Electoral College is a barrier between the will of the people and one-third of the government. Though the College is meant to relay the will of the states, so, too, were state legislatures when they picked Senators. The barriers are similar, particularly when we consider that in several elections the Electoral College broke from the will of the people. To convert our presidential vote to a popular one, we would merely be repeating history, again doubling the people’s direct influence over the federal government, now from one-third of it to two-thirds. Frankly, it can be argued that a national popular vote for our only elected national office makes a lot of sense.

I’m not saying it’s a good idea[10], but I am saying it fits in line with the trajectory of America’s Constitutional history. Food for thought.

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FOOTNOTES:

[1]It goes without saying that the two sides are mostly motivated by political advantage, and their arguments are then tailored to support their side. If Democrats were helped by the Electoral College, they certainly wouldn’t be pushing to abolish it. If Republicans were hurt by the Electoral College, they’d want to make a change. One survey found that in 2011, when President Obama won convincingly in 2008 and most pundits saw a blue grip over the Electoral College looming in 2012, 54 percent of Republicans wanted a popular vote to determine the presidency. Now it’s just 19 percent.

[2]For the purposes of consistency across time, it’s imperative here that we define our terms. I’m using the terms ¨liberal¨ and “conservative” in their classical meanings. “Liberal” — from the Latin liber, or free — means more freedom and authority to the people, goals usually achieved by upending traditional political and social practices. Note that though that sounds good, it isn’t necessarily. A fully liberal society would allow people to do anything they wanted, with no government to restrict them or collect taxes and no social norms to check other kinds of deviant behavior. The classical “conservative” recognizes those dangers and fears the ensuing chaos. Instead, they think a firm government should promote law and order to control the people’s baser instincts, and that more unified political and social value systems makes for a stronger civilization. I’ll have more to say about some of this in a looming Top 30 entry.

[3]The modern U.S. was very much shaped by this initial approach. We still have separate “states” in our country, each with their own governors, legislatures, and state laws. That can be very confusing to foreigners who share the same laws from border to border. To them, we are a state of states, which makes about as much sense to them as England, Scotland, Wales, and Northern Ireland all being their own countries while also being part of the larger United Kingdom does to us.

[4]Nowhere are these problems with a “mobocracy,” or tyranny of the majority,” more evident than in Daniel Shays’s infamous 1786 rebellion in western Massachusetts. Hundreds of farmer-veterans, many of whom had never been paid for their service in the Revolutionary War and struggled in a poor economy to the point where they couldn’t pay their mortgage and were having their farms seized by lenders, rebelled against the Massachusetts government. Demanding more money be printed, taxes reduced, and foreclosures ended, the rebels took up arms. A relatively weak Massachusetts militia had trouble putting it down, and the state’s legislature eventually gave into some demands, though not before three Americans were killed. With one event, the weakness of a single state, and the ease of a mob getting its way in a government run mostly by an elected legislature, became clear.

[5]Sensing a plot afoot, tiny Rhode Island, who kind of liked the broken system where every state had an equal say nationally, did not want to legitimize the meeting, so they sent no one. They became the last of the original 13 states to join the union as a result.

[6]Meanwhile, though the entire House could be voted out every two years, only one-third of Senators were up for re-election every two years in a series of staggered, six-year terms. Thus, at least two-thirds of Senators will remain in any given election year, which favors continuity over the people’s election-year mood.

[7]The resistance from liberal watchdogs ultimately earned the Bill of Rights. Advocates for Constitutional ratification promised they’d add the Bill of Rights, which became the first ten amendments to the Constitution, if ratification’s opponents agreed to support the document.

[8]This is only Constitutionally speaking, of course. Many argue, for good reason, that bureaucratic lifers, interest groups, restrictive state voter laws, and gerrymandering actually make the government less beholden to the people than it used to be.

[9]In fact, the only amendment that was a conservative step — 1919’s 18th Amendment, which prohibited alcohol — was repealed 14 years and three amendments later with 1933’s 21st Amendment.

[10]Among other arguments in favor of the Electoral College, an appropriate question for today can be: is extending the people’s direct control over the government inherently a good thing? If it were, should judges also be elected? I take solace in having some people in government not beholden to a direct popularity contest. The question is: how much of the government should be?