The Electoral College as a Brake on Presidential Power: Its Evolution From Washington to Jackson

0:00I'm delighted to be here today, and since nobody's introducing me, I guess I have to introduce myself. I'm Randall Holcomb, and by way of introduction, I'll say that I noticed on the book table that the Institute here has one of my books for sale on the book table for only $8. And I think it's a wonderful book, but I'm not going to tell you what a wonderful book I think it is. What I'm going to tell you is it's a hardback book for eight dollars. So it is called Public Policy and Equality of Life. So a hardback book for eight bucks? You ought to go out and look at it anyway. So I'll thank myself for that wonderful introduction now and move into the topic I'm speaking on, The first topic I'm speaking on which is the Electoral College from the time of George Washington to Andrew Jackson and before I actually get into discussing the Electoral College specifically what I want to do first up is try to convince you that this is just not some obscure topic in American history but rather it's something that's very relevant to today's government, to American democracy and indeed to the future of governments around the world.

1:19on the World. If we were to take a cross-section of Americans and ask them what's the fundamental principle that underlies American government, I think the most common answer that you'd get today is democracy. We're a democracy. We not only try to promote ideas of democracy within our own country, but we try to spread American-style democracy throughout the rest of the world. When the Berlin Wall fell in 1989 and Eastern European dictatorships were overthrown, what we as Americans saw as an opportunity for those people, it wasn't freedom, it wasn't capitalism or a market system, it was democracy.

2:04What we wanted to do was try to promote democracy. If we were to go back a couple of centuries and ask the American founders, what's the The underlying principle of the government that you're fighting to try to establish, the answer back in 1776 would have been liberty. Liberty was the fundamental principle that the American Revolution was fought over and liberty to the founders meant freedom from government oppression because back then the government was the organization that was most likely to threaten people's liberty. So in a period of two centuries, actually the transition occurred in a shorter period of time than that, we went from a country where the fundamental principle underlying our government was originally liberty to today where people almost universally believe that the fundamental principle underlying our government is democracy.

3:01And as far as public policy is concerned, it's a strong argument in your favor. I don't necessarily think it should be a valid argument, but a strong argument in your favor When we try to make and decide policy issues, rarely do we go back and look at the constitutionality of policy issues, or consider that quaint concept of liberty that was behind the American Revolution two centuries ago. Rather, we look at whether people are in favor of it or against it. So democracy is that fundamental principle behind our government that most of us unthinkingly accept that American government is a democracy.

3:45I'm not a big fan of democracy myself, and so part of what I want to try to convince you is that it's not anti-American or un-American for me not to like democracy. In fact, I'm going to argue to you the American founders deliberately tried to design a country that was not a democracy. They deliberately tried to set up a government that was insulated from democratic pressures. And they deliberately tried to set up a government that would not be swayed by the will of the majority. Let's look at the American Constitution to see how the government was set up according to the American Constitution. Now we're familiar with the idea of checks and balances, that we have three branches of government that check and balance each other.

4:33And so just to do some rough arithmetic, I'm going to go with the assumption, which must be roughly true, that if these branches are supposed to check and balance each other, They must be roughly equal in power, otherwise they really wouldn't be able to check and balance each other. And then I want to go down through these three branches of government and look at the Constitution to see how they're set up. Starting with the judicial branch, where it's headed by a Supreme Court, and of course the Supreme Court justices are appointed by the President for life and confirmed by Congress. And finally, we can see that there's not much democracy going on there in the judicial branch of government and we can see that the judicial branch of government deliberately was set up to be insulated from democratic pressure.

5:25Second, I want to briefly touch on the executive branch. I'll be coming back to this. The Chief Executive, the President, according to the Constitution, was chosen by an Electoral College. And the main thrust of my talk, which I'll get into in a moment, is the Electoral College was originally not set up to be a democratic institution. If we go on to the third branch of government, the legislative branch of government, we have two Houses of Congress, the House of Representatives and the Senate. and as originally set up in the Constitution, senators were chosen by their state legislatures and it was that way until 1913 when the 17th Amendment to the Constitution mandated direct election of senators. In fact, it did so explicitly for the purpose of making the Senate more democratically accountable because people felt that the senators weren't so accountable to the opinions of the general public.

6:29So in 1913, after the 17th Amendment, we had direct election of senators. But before that, and more to the point, as the founders designed it, senators were not popularly elected. And voters didn't have a chance to select their senators. Senators were chosen by their state legislatures with a purposeful attempt to insulate the Senate from democratic pressures, from the will of the majority. Only in the House of Representatives was there direct election, and by my rough arithmetic here with the three branches of government, what that means is that only one-sixth of the government had any democratic accountability in the sense of the individuals being directly accountable to the general public.

7:16And even with the House of Representatives, While the Constitution said that individual voters voted to elect their representatives, the Constitution, as originally written, gave nobody the right to vote. Rather, it allowed states themselves to set the qualifications for being able to vote. So the Constitution doesn't guarantee anybody the right to vote. It allows, as originally written, allowed states to be very elitist if they wanted to, as far as who had the right to vote. So maybe I'm exaggerating a little bit even to say that one sixth of the government was accountable to the general public because the franchise was more limited. But we see there was only direct voting for the House of Representatives, and that was for the purpose not of having democratic policy making, but rather to give the people some check on the activities of their government, as legislation would have to pass through the House and the Senate.

8:09And I might throw in as a footnote a bit of an interesting separate topic to consider, But the reason that the founders wanted the House and Senate elected from different constituencies is to put more of a check on the activities of government. Now with the House and Senate essentially elected by the same voters, legislation has to be approved by the representatives of the voters and then the representatives of the voters. Not as much a test as before 1913 when legislation had to be approved by both representatives of the voters and representatives of the state governments. So it's interesting to consider, for example, some governors have complained from time to time about federal mandates on states and how that's costing the states and so forth. But it's likely these federal mandates never would pass the Senate if the senators were chosen by their state governments.

9:00But my larger point is that as the government was originally designed in our constitution, The American government was not designed to be a democratic institution. In fact, it was set up to be insulated from democratic pressures. Only the House of Representatives being democratically elected, Senate chosen by the state legislatures, the Supreme Court appointed by the president, and the president chosen by an electoral college. Now let me get directly to talking about the electoral college. And we can, looking at the Constitution, we can think about the Electoral College in two ways because it was originally designed by the Constitution and then subsequently modified, although only slightly modified in 1804 by the Second Amendment to the Constitution.

9:54But if we look at the Electoral College as originally designed, we see that the Electoral The Electoral College is made up of electors who are able to cast electoral votes for president. As originally designed, the electors voted for two candidates, at least one of which had to be from a state other than the electors' state. Electors, the members of the Electoral College, the electors are instructed by the Constitution to meet in their states and then to forward their electoral votes to the House of Representatives and if one candidate gets the votes of a majority of the electors, that candidate then becomes the President.

10:49Otherwise, as the Constitution originally specified, the names of the top five candidates would be forwarded to the House of Representatives and the House of Representatives then would choose the President. And after the Second Amendment in 1804, that's now the top three candidates, but the principle remains the same, that the Electoral College votes, they cast their votes and if nobody As the founders designed this system for selecting the president, what they envisioned when they designed the electoral college was that in most cases, no candidate would get a majority of the electoral votes.

11:41and so what they envisioned was that in most cases the president would be chosen by the House of Representatives. The way they reasoned it is that most electors would be inclined to vote for somebody from their state and that was one reason for putting in the provision they vote for two candidates at least one of which had to be from another state. They viewed that electors would be biased toward of Voting for People from Their States. So lots of different candidates were likely to get electoral votes, and unless there was really a consensus candidate, it would be likely that in most cases, nobody would get votes from a majority of the electors. So in most cases, what would happen is that a slate of five candidates, and after 1804, three candidates, but a slate of five candidates would be forwarded to the House of Representatives, and then the House of Representatives would choose which candidate they wanted to be president.

12:42And so the process as the founders envisioned it was using the Electoral College as a kind of a search committee. Rather than having people popularly vote for president, I mean if they wanted to do that, that was an option to just write in the Constitution everybody's going to vote for president. And in fact, the Constitution today, back then, the Constitution has never specified how electors are selected. It leaves it up to the states as to how electors are selected. The Constitution has never said and still doesn't say how states are to choose their electors. So they left that up to the states, but what they envisioned was that these electors would be people People who knew more than the general public about the merits of various candidates and they would be some experts in picking people who would be good candidates for president.

13:41But as I say, because of the way the Electoral College was set up, the founders envisioned that typically nobody would get an electoral majority. Now another provision in the Constitution that would lead this to be the case is the The Constitution specifies that the electors meet in their states. Sometimes I've heard the justification for this being that back then it was costly and difficult to travel and so it would be easier for the electors to meet in their states than to gather in Washington D.C. But senators and representatives went to Washington D.C. to do their business and surely if the founders thought it important, electors could go to Washington D.C. for a day or two to to meet there too. But the fact that they met in their states rather than meeting together as a group is yet more evidence that the founders didn't intend for them to arrive at a consensus.

14:36If the founders really thought that the electoral college would arrive at a consensus candidate, they could have them all meet together to make sure that there was a consensus. So the provision that they meet in their states, again, leads to more different candidates, it would be likely that more different candidates would be selected. So the way the founders envisioned The Electoral College puts together a slate of candidates. The top five vote-getters, then their names are forwarded to the House of Representatives, and it would be like if you're trying to hire a university president or a corporate CEO or something like that, you put together a search committee, in this case the Electoral College, and you instruct the committee, send me the names of the top five candidates and let me choose from among qualified candidates. And then it was the House of Representatives' job to choose the candidates.

15:24and the way this was set up it was deliberately designed to eliminate democratic forces, popular opinion, from determining who is going to be the president and to allow experts, people who would have a better knowledge of the candidates, to choose first of all the candidates, that's the Electoral College, and then among the top candidates, unless there's really a consensus, members of the House of Representatives would then choose who they want to be. and the way the system was designed, but it never worked the way the founders intended. In fact, they knew it wouldn't work that way the first time because the general opinion as the Constitution was being written was that George Washington would be selected to be the first president.

16:22So the founders, even as they thought most times nobody would get an electoral majority, anticipated that the first time George Washington would be the president and George Washington would have an electoral majority. But after that, for every election up until 1824, some candidate got a majority of the electoral votes. And so, the election was never thrown into the House of Representatives until the election of 1824. Meanwhile, as I mentioned, the Constitution never specified how electors were to be selected by the states.

17:11And originally, the most common method that states used for selecting electors was to have their state legislatures choose their electors, same way as senators were chosen back then. The most common way of selecting electors was to have them chosen by the state legislature. But over time, more and more states went to the kind of balloting that we have today called general ticket voting. More and more states went to general ticket voting where people voted for electors that represented particular candidates, and then the state's electoral votes went the direction of the popular vote. Increasingly, we went to general ticket voting very early on in our history.

17:57In the election of 1792, we had 15 states, 10 of which chose their electors through the state legislatures and only two of which used, excuse me, three of which used general ticket voting. By the election of 1800, with 16 states, there was only one general ticket state, only one state elected electors the way we do today, and 10 of the 16 states in 1800 chose their electors through the state legislature. A couple of decades ahead, in 1820, we had 24 states, there were 9 states that chose their electors through the legislature, 8 general ticket states. But after 1820, general ticket voting became increasingly popular and choosing through the legislature became less popular.

18:52So in 1820, let's say we had nine states choosing their electors through the legislatures, eight general ticket states. Four years later in 1824, we're down to six states choosing through the legislature, twelve general ticket states. In 1828, only two states chose their electors through the legislature, 18 general ticket states. In 1832, there was only one state that chose through the legislature and 22 general ticket states. And after 1836, all states except South Carolina chose their electors through general ticket voting like we use today. And in South Carolina, South Carolinians never cast votes for president until after the war between the states.

19:44So if we look at the Electoral College, we see it never worked the way the founders had intended. And there are a couple of reasons why I think this is the case. First of all, as we look through that first quarter of a century in the 1800s, we see that presidents are increasingly chosen by popular vote, as states migrated away from choosing electors through their state legislatures and went toward having popular votes for presidents. Of course, we still have the Electoral College, and voters are voting for electors who are Back in 1800, most people weren't voting for president. It was up to the state legislatures to choose who the electors were going to be.

20:40So there was no illusion that there was any kind of a general election for president, but increasingly we went to popular voting for electors, which looked like popular voting for president. And to add to that appearance, all of the presidents up until 1824 were chosen by the Electoral College, so the House of Representatives was never involved. So increasingly, there's popular voting for president, and over a period of a quarter century, which is a pretty good amount of time, Over a period of a quarter century, people get accustomed to the idea that they're showing up to the polls, they're voting for president, and the person who gets the most votes wins, because that's the way it worked.

21:31and the people who were chosen for president up through 1824 and including 1824 were a part of America's political elite. I think there was no illusion that sometimes you hear this idea perhaps even proven by a current president that hey anybody can grow up to be president but there there was no There is no illusion that that was the case back in the 1800s or in the early days of our country where the people who were elected as president, chosen as president were part of the American political elite. So these weren't common people. These were people who were in a really a separate ruling class.

22:23In the election of 1824, the system comes to a head a bit here, because in 1824, Andrew Jackson ended up getting the highest number of electoral votes, but he didn't get a majority of the electoral votes. So, now the election is thrown into the House of Representatives, and following the Constitution, and as amended by the Second Amendment in 1804, now it's the top three electoral vote-getters that are forwarded to the House of Representatives. and what ends up happening in 1824 then is the House of Representatives looks over the top three candidates even though Andrew Jackson got more electoral votes than than anybody else without a majority the House of Representatives chose John Quincy Adams as president and this this particular event in American history a lot of times it's well Jackson supporters The researchers said that John Quincy Adams was chosen president in a corrupt bargain.

23:33It's a bargain between Adams and Henry Clay, where Clay was made Secretary of State in exchange for throwing his support to John Quincy Adams. Clay, by the way, was out of the... Clay was the fourth highest electoral vote getter, so Clay wasn't one of the options for president. And so there's this corrupt bargain, so-called corrupt bargain, then, that puts John Quincy Adams in the White House. and John Quincy Adams again is a member of this American political elite as opposed to Andrew Jackson who's a war hero but also you know somebody who had more pedestrian roots. Well after the election 1824 Jackson supporters just completely outraged by this. I mean they can't believe that the presidential election is stolen from them like this when Jackson got the highest number of of electoral votes. And now as a result of this corrupt bargain, John Quincy Adams ends up in the White House. So first of all, I'll raise the question. I'm not going to get into

24:38a debate about what the answer to this question is, but I'll raise the question about this corrupt bargain. Because didn't the process really occur just as the founders intended The founders didn't intend for the top electoral vote getter to be chosen as president. If that were the case, they just would have said so. Why would they throw it to the House of Representatives? The founders thought it would be uncommon for anybody to have an electoral majority, and so a list of names would be forwarded to the House, and the House would choose the candidate they thought was most qualified. That's what happened in the election of 1824. So the process worked in 1824 as the founders had envisioned it, but by that time we've had more than a quarter century of popular elections for president where the person who gets the most votes is the person who ascends to the White House.

25:32So people have come to think of the presidential election as a democratic election where the top vote getter gets into the White House. Well, Jackson supporters were outraged by the House's choice of John Quincy Adams as president. Before Adams was even inaugurated as president, Jackson supporters, led by Martin Van Buren, formed the Democratic political party. And the Democratic party was formed for the sole purpose of getting Andrew Jackson elected as president in 1828. They said, we're not going to let them steal the election from us next time. We're going to put together political support such that we're guaranteeing ourselves Jackson's going to get an electoral majority and we're going to put Andrew Jackson in the White House.

26:23That was their plan and it worked. Jackson ended up getting an electoral majority in 1828 and ended up being elected president. But that 1828 election is a significant election, because it's the first time that political parties actively campaigned for candidates for president. If we go back in history, we can find politicians associated with parties, and we can see people that have different ideas and so forth. but there weren't political campaigns for president the way that there was a campaign undertaken for Jackson of course when state legislatures were choosing the president there's really no point in doing that I mean there's no point in mounting a popular campaign because it's people aren't voting for president anyway and and of course the founders wanted to try to insulate the The American government from partisan issues, what they call factions, so they didn't want to have this party apparatus set up anyway.

27:30But after the Electoral College evolved into a more democratic system, now the Democratic Party is set up in order to campaign for Jackson's presidency, and then subsequently the Whig Party arises in order to oppose Jackson because with the Democrats having a party apparatus, the only way somebody else is going to have a chance to win is if he has a party behind him also. And so really the two-party, the American two-party system evolved as a result of, well, the establishment of the Democratic Party through Andrew Jackson. But why did the Democratic Party end up arising to elect Andrew Jackson?

28:17It's because the electoral college system evolved from a system where it was supposed to be essentially a search committee forwarding a slate of candidates to the House of Representatives. It evolved into a democratic election mechanism. And so right away we see in the executive branch of government, you know, within half

29:10Jeffersonian debate several times here, and Jackson viewed himself as a Jeffersonian, wanted small government, but he viewed that the way to control this elite government that he thought was running out of control was to make it more democratically accountable to the people. Now, I think the end result of that was just the opposite, because when the government is more democratically accountable to the people, that lets people go to their representatives, including the president, say, We want this, we want that, and these democratic pressures ultimately lead to growing government. So, I'll end on the note just of observing with Andrew Jackson's presidency that here we have a situation where somebody sincerely is campaigning for smaller government, wants to limit the power of the government, and was somewhat successful in his own two terms of office.

30:05But ultimately, the longer legacy of Jackson was the introduction of more democratic systems in the election of president, which ultimately, because of these democratic pressures, led to larger government rather than smaller government. So it's ironic that these institutions brought in by Jackson, favored by Jackson, ended up leading to larger government, though he favored smaller government. And again, with a final note, I'm really not going to put too much of the credit or blame here on Jackson himself because the election of Jackson in the first place was a result of the fact that the Electoral College had metamorphized from the organization that originally it was intended to be.

30:52So thank you very much for your attention.