Subtitle: Nationwide Consensus.
People react differently to the term “Federalism.” Some connect it to long-gone slavery, state’s rights, Jim Crow and oppression. Others, like myself, regard it an essential element of the unique American republic, that of divided responsibilities between the nation and states. Neither is federalism a competitor to democracy; it is its willing servant.1 Of course, thanks to the 17th Amendment, federalism is but a shadow of its former self. But, a small portion of our Framers’ original federalism lives on in the Electoral College (College).
Those who detest the concept of powers retained by the states typically oppose the College and support direct election of Presidents. They regard the College an undemocratic and indefensible 18th century relic. However, federalism is one of the fundamental and essential principles of our Constitution. Those unfamiliar with federalism will naturally misunderstand the College and shake their heads in wonder at our less-than-straightforward method of Presidential elections.
Most people aren’t aware of the College and far fewer understand its importance and simple congruence with the American federal republic. State-based College electors interface with Congress, and like the pre-17th Amendment Congress, the College is both democratic and federal.
There’s no doubt that direct election is outwardly simple. It is so simple, it’s the way of Venezuela and Russia. However, when it comes to securing liberty, history has not been kind to the worldwide record of direct presidential elections.
According to Political Scientist Judith A. Best, consensus is fundamental to American government. It was designed to secure liberty through unanimous consent. In the Framers’ system, reasonable majorities could govern because they had the consent of the minority. Why would a minority consent? Because, she says, “only if a minority can see that on some occasions and on some important issues it can be part of the majority. It’s irrational to consent to a game in which you can never win, never win anything at all.”2
The historian Gordon S. Wood probed a little deeper when he wrote: “founding era politics weren’t conceived as reconciling interests, but rather transcending the different interests of society in search for the single common good.”
Majorities can be tyrannical and the will of the majority is not always identical to the common good. While majority rule is certainly better than minority rule and might be wiser, this is not always the case. The Framers’ complex governing system didn’t plop all power directly into the hands of the majority; instead, it forced majorities to obtain the consent of the minority. Federalism is the key.
In each of the fifty sub-societies, majorities must be formed statewide and within each Congressional district to fill national offices. Candidates cannot ignore the various minorities; they typically work to accommodate them as much as possible. No system is perfect, yet the American approach historically stands alone in its stability and harmony between winners and losers that’s often missing in foreign presidential elections. America’s chief executive cannot conduct himself as an elected tyrant . . . unless Congress and Scotus roll over and go along.
Outside of elections, the Executive veto and Senate filibuster not only serve as checks; they offer opportunities for minorities to join the majority. While both sides may not entirely approve of the outcome, their general agreement to either pass or decline to pass legislation promotes national unity. Especially before 1913, legislation acceptable to both the people and the corporate States signaled the likelihood of good law. As opposed to judicial amendments to the Constitution imposed by five secretive lawyers, the Article V process also promotes harmony. Judith Best explains, “Our Constitution seeks to approach national consensus by giving state-affiliated minorities a voice and some form of qualified veto. It thereby creates federal public minorities rather than purely arithmetical private ones.”
1. Bybee, J. S. (1997). Ulysses at the Mast: Democracy, Federalism, and the Sirens’ Song of the Seventeenth Amendment. Scholarly Commons @ UNLV Law, 504.
2. General Reference: Best, J. A. (1996). The Choice of the People? Debating the Electoral College. Lanham, MD: Rowman & Littlefield Publishers, Inc. 4-7.