A Great Amarican

I had the pleasure on Monday of being on a panel with Akhil Reed Amar, the Sterling Professor of Law and Political Science at Yale, author of “America’s Constitution: A Biography” (Random House, 2005), and, for a few more weeks, a visiting professor at Harvard Law School. The panel was sponsored by the student chapter of the American Constitution Society, the center-left adversary of the hard-right Federalist Society.

Our topic, it will come as no surprise to regular readers of this blog to hear, was the National Popular Vote plan.

Professor Amar is one of the intellectual fathers of N.P.V. Way back in 2001, just a year after Bush v. Gore pushed the country off a cliff, he and his equally brainy brother, Vikram David Amar, who teaches at King Hall, the law school of the University of California at Davis, wrote a three-part article demolishing the main arguments for the electoral-college status quo and outlining most of the elements of what was to become, five years later, the N.P.V. proposal. The Amar brothers are N.P.V.’s Locke and Montesquieu.


Anyway, at this panel, Akhil Amar made two excellent points that deserve to be underlined.


1. It is often said that the Framers came up with the electoral college scheme because they wanted to set up “a republic, not a democracy.” They abhorred anything that smacked of direct democracy.


This is untrue. They specified that the House of Representatives, which in their view would be the single most powerful component of the constitutional design, would be elected by the people. Most of them also favored popular election of state governors. At least as important, the Framers put the ratification of the Constitution itself to a vote of the people or what amounted to a vote of the people.


What the Framers objected to was not democracy per se, but to democracy based on inadequate voter information. While ordinary people could adequately inform themselves about local political figures, or about a document whose text they could read for themselves, they would have no way of garnering sufficient information to judge potential Presidents from distant places. Or so (many of) the Framers thought. If this objection was ever valid, it’s obviously obsolete now, when the average citizen knows more about the personalities, biographies, and beliefs of the leading Presidential candidates than about his or her local sheriff or legislator.


2. Anyhow, the real reason for the electoral college wasn’t all that high-minded guff about voter information, or even some noble desire to protect small states. It was to enhance the power of slaveowners.


Electoral votes are alloted to states not according to the number of voters but according to population, with the disfranchised slave proportion counted at a forty per cent discount. The three-fifths rule wasn’t as good a deal for the (white) South as counting slaves as whole persons would have been, but it was a good enough deal to allow them to dominate both Congress and the Presidency for most of the pre-Civil War period.


We don’t have to guess that this was the overriding motivation for going with “electoral” instead of popular votes. You won’t read about it in the Federalist Papers, but you can in the private diary James Madison kept at the Constitutional Convention. The Amar brothers pinpoint some evidence. On June 1st, James Wilson of Pennsylvania, the man who contributed the phrase “We the People” to the preamble, expressed support for popular election, noting that “Experience, particularly in N. York & Massts, shewed that an election of the first magistrate by the people at large, was both a convenient & successful mode.” On July 19th, Madison summarizes a speech of his own:


There was one difficulty however of a serious nature attending an immediate choice by the people. The right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election on the score of the Negroes. The substitution of electors obviated this difficulty and seemed on the whole to be liable to the fewest objections.


Now that civil war and the Voting Rights Act have allegedly “obviated this difficulty” for good, it might be time to liberate ourselves from that voters should be subjected to an elaborate process of “substitution.”


For links to the text of the Amars’ original articles, scroll about halfway down.


P.S. The day before yesterday, the Nevada Assembly became the twenty-seventh state legislative chamber to pass the National Popular Vote bill, which so far has become law in Maryland, New Jersey, Illinois, and Hawaii.