In the wake of Monday's electors gathering in various states
to officially vote for Donald Trump, Hillary Clinton, Colin Powell, Bernie Sanders, Ron Paul, John Kasich, and Faith Spotted Eagle, we've seen a new round of liberals (and even a leftist like Doug Henwood) claiming the Electoral College is a vestige of compromises with slavery.
Erm, not quite. To the degree that it is so, it's only indirectly so. In other words, people like Michael Moore, in points 3 and 4 of
this Facebook post, are a mix of simplistic and flat wrong. In this case, it IS Michael Moore. Are you surprised?
And today, the New York Times, though less egregiously than the likes of Moore,
also gets it wrong with its own historical (and intellectual?) shortcuts.
Unfortunately, as the "I blame Putin" whiff of the vapors continues, many Clintonista types relish such simplistic ideas. Unfortunately, on this particular issue, a few Greens do, too, I think.
(I'm setting aside the issue that all state laws that ban, on paper, "faithless electors" are unconstitutional and one of them needs to be take to the Supreme Court for a clear ruling as such. That, in turn, would get Greens, Dems and others who are concerned to realize the only sure-fire way of getting rid of the Electoral College is, per John Roberts, to get rid of it. By amendment.)
We need to start with
the three-fifths compromise. The Wiki article at that link is pretty good.
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Not all about slavery, but very much about conservative elite control.
"Scene at the Signing of the Constitution of the United States." (Wikipedia) |
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The compromise, at the Constitution, was not to count slaves as three-fifths of a person for voting purposes only, but also for property taxation as property. Which, of course, they were. That is, of course, disgusting, but it is the nature of slavery, whether race-based or not.
This compromise, as Wiki notes, carried over from a Northern attempt under the Articles of Confederation government to count them as whole persons, for taxation purposes first. It must be remembered that, under the Constitution, until the 16th Amendment, federal income taxes were supposed to be assessed on a state-by-state basis relative to a state's population.
(And, per delinking the three-fifths compromise from the Electoral College, it must be remembered that the Articles of Confederation government, without a president, had no Electoral College.)
In 1783, the Confederation government tried to move in that direction. The three-fifths ratio, once the South rejected a whole-person definition, was put forth for amendment. But, under the unanimity needed then, the amendment failed by two states.
The same idea was revised in 1787 Philadelphia. Since small states, primarily in New England at that time, had their vote power boosted over direct population ratios by the Connecticut Compromise and equal voting in a Senate, they signed off on the three-fifths compromise with little dissent. Indeed, the two proponents of the issue were both northerners.
Let's also not forget that slavery was legal in all 13 original states, not just "the South," and Philadelphia-including Pennsylvania (though already working toward abolition), New York and New Jersey had substantial numbers.
Now, and only now, can we talk about the United States'
Electoral College system, since this method of electing presidents was adopted after, and separately from, the three-fifths compromise.
First, Congress batted around several ideas for the presidency, including a plural executive similar to the dual consuls of Rome, before settling on a single person.
Then, not wanting direct popular election because of fears of "the mob," it considered various options to select a president
One was election by Members of Congress, or more specifically, the House. But, that was seen as voiding the vaunted separation of powers.
The other two methods originally proposed were direct popular vote, quickly dismissed, and election by state legislatures. And that method would either have had to have a one-state, one-vote system similar to the Articles of Confederation Congress, or something else. (Hold on to that thought.)
So, eventually, an Electoral College system was adopted — even though many founders thought that, after Washington, most elections would wind up going to the House anyway, as per the adopted constitutional procedure. (Note: As Wiki observes, though the Constitution talks about "electors," it never uses the phrase "Electoral College." In fact, because the founders stipulated each state's electors had to meet separately, they likely would reject such an idea.)
Discussion over the Electoral College never made explicit references to slavery, nor did Northern delegates express great opposition to it over this reason.
Beyond what Wikipedia says, good books on the Constitutional Convention will tell you that, while there were bits of friction over slavery, there was nothing huge, overall. Things like the 20-year period for legal slave importation weren't contentious at all. And, while the musical "1776" does go over the top at times, New Englanders were running slaver ships. And, due to that and other things, they dealt with the Deep South on the 20-year period for importation, after the three-fifths rule was accepted, in exchange for not creating a two-thirds rule on Congress passing navigation laws and other things favorable. (I.e., tariffs, per today's Trump trade wars and Congress surrendering most of its trade power to the president after WWII.)
In turn, the Upper South, namely Virginia, would have to wait 20 years before profiting off the sale of surplus slaves.
(This is also why Abraham Lincoln said
exactly what he did on March 4, 1865, about not judging. He knew the North's own past degree of involvement and more.)
Oh, that "something else"? The Constitution doesn't specify that electors must be chosen by direct popular vote. Until the Civil War, South Carolina had theirs chosen ...
By the state legislature.
The degree of federal power, the degree of presidential power, and large-state/small-state issues were all more serious bones of contention.
As for elections? Gary Wills and others may be right that Jefferson beat Adams in 1800 because of the three-fifths compromise. But, Wills ignores the Connecticut Compromise. And,
Wiki says Jefferson was a massive popular vote winner. So, all "liberty loving" historians doing ax-grinding over the three-fifths compromise while not also complaining about the electoral college in general are rank hypocrites, rank idiots or both. Per Wiki's link above about the election of 1800, it's no shock that Akil Reed Amar is among them. (Corey Robin identifies Amar, along with Larry Tribe and Jack Balkin, as "liberal originalists." That explains enough about his idiocy.)
With the possible exception of 1848, where Taylor had only a plurality in the popular vote — but, as a Whig, more of his support came from the North — the three-fifths compromise when connected with the Electoral College
never influenced a pre-1860 election. Other than the 1824 runoff, where nobody had a majority of either popular or electoral votes, but Adams was second in both, every plurality or majority winner of the popular vote was elected president.
It DID influence that one, 1860, with the note that Lincoln was the plurality winner of the popular vote. Without the Electoral College, a popular vote runoff would likely have gone to Stephen F. Douglas over Abe Lincoln; ditto if we kept the constitutional provision of sending a no-majority election to the House.
So, stop it, people. Stop making untrue claims about the Constitution. Read first. And also, per
my review of The Frozen Republic, learn just how many problems the body of our Constitution has.
This is also probably another reason I call myself a left-liberal. (That said, I'm not ready to call myself a straight-out leftist.)
Finally, Trump is NOT the worst popular-vote loser to win the Electoral College. By percentages, not raw numbers, Quincy Adams in 1824 and Rutherford B. Hayes in 1876 were both bigger popular vote losers. And this one will get mentioned again in another blog post.
This also ignores that pre-TR, the United States, with the exception of Jackson and Lincoln, was largely a nation of Congressional government. The presidency just wasn't that big a deal.
That said, a case can indeed be made that the 3/5 clause highly influenced Congress, at least the House. When Democrats were in the ascendancy, they couldn't elect a Speaker and make committee assignments without Southern concurrence.
As for the Presidency? When the Jacksonian Democracy adopted the 2/3 rule for presidential nominations, for the presidency, that had far more influence than the 3/5 Compromise. Van Buren was blocked in 1844 because of it, as was, of course, Douglas in 1860 until, in this case, Northern Democrats refused to lay down for the South any more and the party split.
It gave Southern Democrats a veto of sorts after the war, though, until it was finally abolished in 1936.
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Various other updates to the original:
First, while Paul Finkelman
is generally right (with some quibbling) that the Second Amendment was not done to protect slavery,
he's generally wrong in claiming the EC was created for that reason, especially with the word "explicitly" in the header. And I don't care if he wrote a law review journal piece to this end, he's still wrong. (Lots of people write law review journal pieces that are wrong, of course.)
The part about governors electing the president? Kind of a red herring. It and similar one-state, one-vote ideas had little traction, relatively little discussion. The claim to be able to read the inner mind of Charles Pinckney? Poor historiography. Semi-laughable.
And, like Wills, Finkelman ignores that the three-fifths compromise was at least partially offset by the Connecticut Compromise. And, he doesn't even discuss the Articles of Confederation background. Other errors of his, too, are basically covered in my original post.
It's interesting how someone can be half right or more about the one issue, but certainly more than half wrong about the other.
