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The government of the United States is best described as a representative democracy, in which its citizens choose people to represent their interests. But American democracy is unique among representative democracies because its framers were so concerned that power be limited. Thus, in addition to a federal system (necessitated, of course, because the new United States of America was being formed out of thirteen separate and independent colonies), the U.S. Constitution created a government of three branches, each of which was intended to have limited power. This construction followed the political philosophy of the French writer Montesquieu, who coined the term “trias politica” or “separation of powers” in his book, Spirit of the Laws, which James Madison extolled in the Federalist Paper Number 47. There, he claims that Montesquieu is to the British Constitution as Homer is to epic poetry. In Federalist Number 47, Madison argued that “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
In order for the new Constitution to be ratified, given the wariness of most Americans of the giving the government too much power, ten amendments (the Bill of Rights) were added to the Constitution enumerating the rights of Americans. These included freedom of the press, freedom of speech, freedom of assembly and protest, freedom to bear arms, freedom of religion and, among others, a number of protections in criminal trials such as the right to a jury trial. But while the Constitution was a singular document in protecting liberty, it was, in many ways, anti-democratic.
Let’s look at the Constitution in some detail.
Article 1 Section 2. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. In practice this meant only property-owning white men over the age of 21 were able to vote. Thus, in 1820, 108,539 people voted for President (actually for electors) out of a population of 9,638,453 (or 1.1%). It has been said that in the early years of the Republic about 6% of white adult men could vote legally.
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. Thus, slaves (in the Constitution’s quaint phrase “other Persons”) were to be counted as three-fifths of a person to increase the representation of slave-holding states. This reduced the value of a vote in free states.
Section 3. The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote. New York with a population of 340,000 people had the same vote in the Senate as Rhode Island with a population of 68,000 people. In other words, a Rhode Islander’s vote was worth 5 times that of a New Yorker. It wean’t until the ratification of the 17th Amendment in 1913, that senators were elected by the people.
Article 2 Section 1. The executive Power shall be vested in a President of the United States of America. 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. The Electoral College was created by the framers of the U.S. Constitution as an alternative to electing the president by popular vote or by Congress. Once again, the Constitution advocates for a representative rather than a popular democracy. In 1788, for example, New York had eight electoral votes while Rhode Island had three. Thus, New York had 2.67 times as many electoral votes as Rhode Island, while having five times the population. In those six states where electors were elected by the people rather than the legislatures, the median number of voters were about 6,000 (Massachusetts had the most at 17,700, while Delaware had the least at 685).
Why did the Constitution decide on an electoral college system? Because of slavery. According to the web-site Fair Vote, “Under a direct election system, the southern states would be at a significant disadvantage because their slaves could not vote. Through the Electoral College and the Three-Fifths Compromise, however, partially counting the slaves when determining the number of presidential electors allowed southern states to rival the electoral power of their northern brethren.” However, the Constitution says nothing about how electoral votes are to be divided. Devin McCarthy writes, “Of the three most common rules for choosing a state’s electors, the most widely used initially was appointment by the state legislature, which avoided a popular vote entirely. Madison did not like this system, as he worried that allowing state legislatures to elect the president would give the state and national legislatures too much power over the executive branch.” A second option was to chose electors by district. “The third system was for all electors to be elected on a winner-take-all basis in a statewide vote, so that every elector in a state would likely vote for the same candidate. States quickly realized that this last method maximized the advantage they could give to their preferred candidate.”
As can be seen from the chart below after 1824, the direct method became more popular and the others receded and by 1836 disappeared altogether. But it’s important to stress that there’s nothing in the constitution that requires winner take all.
There have been six amendments to make the Constitution more democratic: the 15th Amendment ratified in 1870, says all men over the age of 21 have the right to vote regardless of race; the 17th Amendment ratified in 1913, legalized the popular election of senators; the 19th Amendment ratified in 1919, gave women the right to vote; the 23rd Amendment ratified in 1961, gave the District of Columbia three electoral votes; the 24th amendment ratified in 1964, eliminated the poll tax; and the 26th Amendment ratified in 1971, lowered the voting age to 18.
But the United States is far from a democracy. Three undemocratic institutions remain: the Electoral College, the Senate, and the Supreme Court.
The Electoral College.
Steve Coll in the New Yorker writes, “In 1961, Estes Kefauver, the crusading Democratic senator from Tennessee, denounced the Electoral College as ‘a loaded pistol pointed at our system of government.’ Its continued existence, he said, as he opened hearings on election reform, created ‘a game of Russian roulette’ because, at some point, the antidemocratic distortions of the College could threaten the country’s integrity. Coll goes on to say, “The system is so buggy that, between 1800 and 2016, according to Alexander Keyssar, a rigorous historian of the institution, members of Congress introduced more than eight hundred constitutional amendments to fix its technical problems or to abolish it altogether. In 1969, the House of representatives passed a constitutional amendment to replace the Electoral College by a popular vote. While President Nixon considered it “a thoroughly acceptable reform,” a filibuster (another undemocratic feature of the American political system) conducted by Southern segregationists killed it.
This defeat is another example of how the Electoral College is not only undemocratic, but racist, diluting the power of people of color, who are disproportionately urban, while expanding that of whites living in sparsely populated rural states like Wyoming. This year, heavily white Wyoming will cast three electoral votes, or about one per every hundred and ninety thousand residents; diverse California will cast fifty-five votes, or one per seven hundred and fifteen thousand people.
This is demonstrated in the following three maps: 1) the 2016 electoral vote map, 2) a map of the 2016 election results by county and 3) a cartogram weighting the counties by population.
The 2016 Electoral College Map (Trump wins 304-227)
The 2016 Election by Counties (Trump wins 2,626-487)
There’s an awful lot of red, especially in the middle of the country. The chart below presents the 2016 election by land area (including Alaska and Hawaii). Trump wins 79% of the United States’ land area. Of course, we don’t count votes by land area. Well, except in the Electoral College.
The 2016 Election by acreage (Trump wins 79% to 21%)
However, if we weight the counties by population, we produce a cartogram. Here is the cartogram for the 2016 election. The blue areas equal the share of popular vote for Clinton (48.18%) while the red areas equal the share of the popular vote for Trump (46.09%). Third party candidates won a little less than 5% of the vote.
The 2016 Election by Popular Vote (Clinton beats Trump by 2.8 million votes)
There have been five elections in American history in which the loser of the popular vote won the electoral vote: 1824, 1876, 1888, 2000, 2016. The 1824 election saw John Quincy Adams defeat Andrew Jackson in 1824. There were four candidates: Jackson, the hero of New Orleans, who garnered 43% of the popular vote, Adams, John Adams’ son, received 30%, and the rest was divided between Henry Clay and William Crawford. None of the candidates had a majority of electoral votes, so the election was thrown into the House of Representatives. Clay was Speaker of the House and detested Jackson. He negotiated a “corrupt bargain,” having his electors vote for Adams, who, in turn, appointed Clay Secretary of State.
The 1876 election was one of the most notorious in American history, giving rise to the shameful compromise of 1877, by which the Democrats conceded the election to Hayes in return for an end to Reconstruction and the withdrawal of federal troops from the South. We all, of course, remember the 2000 election and the hanging chads in Florida. And 2016 leaves a bad taste in many of our mouths.
Is it possible to change our way of voting for president? A 2019 Morning Consult poll found 50% of responders favoring the abolition of the Electoral College, while 34% wanted to see it stay. In 2012, 54% of Republicans and Republican-leaning Independents favored replacing the Electoral College with a national popular vote. Today, only a third take that position. Nevertheless, fifteen states and the District of Columbia (all reliably democratic) have supported the National Popular Vote Interstate Compact by passing bills containing identical language pledging to cast their electoral votes for the Presidential candidate who wins the most votes nationally. This is seventy-four votes short of what is needed to guarantee that the candidate who wins the largest number of votes in the United States wins the College and gets the job. Until the swing states become reliably democratic, its unlikely that the Voting Compact will get enough states to join to form a majority and then it would be a moot point.
Conclusions
The Constitution of the United States created a representative democracy; the framers, having fought the tyranny of George III and his Parliament, were much more focused on liberty than democracy, and much more worried about government power than enfranchisement. The Constitution allowed for:
- A bicameral legislature with the upper house apportioned by states rather than by population;
- A Senate which was elected by state legislatures rather than directly; and
- A Presidential election process which was indirect and undemocratic.
However, other features of limited government with which we are familiar are not enshrined in the Constitution, particularly the allocation of presidential electors on a winner take all basis. Nor does the Constitution say anything about the rules of the legislature, such as the filibuster. The number of Supreme Court Justices was not stated in the Constitution and it has ranged from five to ten, depending on Congress.
The electoral system has led to profound corruption on at least two occasions (1824 and 1876) and now seems poised to deliver a President elected by a minority of American as frequently as a majority.
Our next post will discuss the Senate and the Supreme Court.
