It has never been clearer that the Electoral College is under systemic assault.
It has become de rigueur for 2020 Democratic presidential candidates to casually excoriate the institution in no uncertain terms, and oftentimes vow to eliminate it via constitutional amendment. Furthermore, as The Daily Wire reported this morning, Nevada is the latest state to pass a bill that adds the Silver State to the National Popular Vote Interstate Compact (NPV), which, if upheld as constitutional after 270 Electoral College votes’ worth of states join, would guarantee the presidency to the candidate who receives the most popular votes across all 50 states and the District of Columbia. As I explained last month, the NPV project is largely funded and promoted by partisan Democratic activists, including a California-based computer scientist named John Koza.
The constitutionality of NPV is debatable. Such a backdoor route toward the abolition of a core constitutional structural provision would indubitably violate the Framers’ intent, but the question from a purely textualist perspective is murkier. After all, Article II, Section 1, Clause 2 of the Constitution seems to provide that state legislatures have plenary power over allocation of their states’ electors: “Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.” As long as NPV amounts to a purely voluntary and non-binding compact for each state that joins, constitutionalists would be severely misguided to rely on our black-robed judicial overlords to save We the People from our own self-inflicted follies.
But NPV ought to be countered on a state-by-state basis, because the Electoral College is an important institution worthy of protection and preservation.
Alexander Hamilton most expressly defended the Electoral College in The Federalist No. 68. The Electoral College, Hamilton argued, “affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.” Specifically, Hamilton added that “it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union.”
More generally, the Constitution’s Framers envisioned the Electoral College as one of their many structural securities against majoritarian tyranny — what James Madison described in The Federalist No. 10 as the problem of “faction”:
By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.
There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.
The Electoral College, in attempting to ensure that smaller, more rural states would not be politically overrun by parochial urban interests, was one means by which the Framers sought to “control[ the] effects” of faction. Other examples of counter-majoritarian protections abound, and are woven into our constitutional structure: A bicameral legislature at the national level, a senior legislative chamber whose (pre-17th Amendment) state representative nature was intended as a deliberative counterweight to the more populist proclivities of the people’s more junior legislative chamber, a tripartite separation of powers framework borrowed from the French political theorist Montesquieu, and the uniquely American political innovation of a federalist system of genuine dual sovereignty.
The Daily Wire’s own Michael Knowles explained it well on his show in March:
[The Electoral College] has a few purposes. One, it’s to restrain pure democracy. Very good, very important, that’s a wonderful thing. What is another purpose of the electoral college? It doesn’t just restrain democracy — let’s say all of the American people voted for super-duper mecha-Hitler or they elected Stalin Jr. to be president, the Electoral College could then come out and say nope, sorry we are going to disagree with the American people and we’re going to elect a good candidate, so there’s that aspect. … The people participate in votes in their states to choose electors to elect the president, but the people don’t elect the president. We are not a democracy; we are a democratic republic. We have a representation system of government.
Rebelling as they did from the tyranny of Britain’s King George III, the Framers were doubtlessly petrified at the prospect of monarchy — and all the unpredictability, impulsivity, and tyrannical threats to individual liberty that rule by one necessarily entails. At the same time, the Framers also feared the wrath of unchecked ochlocracy — the equally petrifying tyranny of mob rule, which is best encapsulated by a plebiscite such as that which NPV aspires to be. Constitutional structural provisions such as the Electoral College and the Senate are not bugs, but features, of the Framers’ genius in securing the people against their own zealous caprices. As Jonah Goldberg succinctly put it, the Framers understood that “democracy depends on some undemocratic mechanisms to maintain liberty.”
At its core, the NPV movement lacks this fundamental, key insight into human nature.
“If men were angels, no government would be necessary,” Madison mused in The Federalist No. 51. But men are not angels. And because men are not angels, structural constitutional provisions are necessary to chasten the whims of the frothing mob. The Electoral College is one such constitutional mechanism and, as such, it is worth preserving.