In my last post, I noted that students in my Honors College tutorial are preparing posts for this blog. One of these posts alludes in passing to the fact that Mr. Trump is a minority president — his opponent received nearly 3 million more votes and he wields the awful powers of an American president solely due to the peculiarities of the ever-more-regrettable Electoral College.
Walking around the world day to day over the last ten months, I have tried not to dwell on this fact. It is just too galling to reflect that a clear majority of the American electorate correctly judged Mr. Trump unsuitable for the presidency, only to have that judgment overridden by a constitutional anachronism.
Consider, if you will, that the margin of Mr. Trump’s loss — 2.9 million votes — would have constituted more than 3/4 of all the 3.89 million human beings — male or female, children or adults, free or slave — living in the United States in the decade the Constitution was adopted. And substantially more than three times the number of free white males eligible to vote in the presidential elections of the period. Largely due to the political difficulty of excising the Electoral College, we are wont to minimize the sheer outrageousness of our current situation, sometimes by pointing out that even a margin of nearly 3 million is only 2.1 percentage points, sometimes by mumbling about how the considerations that led to the adoption of the Electoral College remain relevant today.
Both these rationalizations are bunk. A system that awards elective office to a candidate who comes in second by multiple percentage points and 3 million actual votes has lost any serious claim to producing a democratic outcome. Moreover, honoring democratic choice is not merely an abstract principle, but acknowledges that the judgment of the majority of a free populace is likely to be wiser than the judgment of the minority. A country that awards office to the losers of fairly contested elections may reasonably expect inferior performance from those the majority has found wanting. It is sobering to consider that two of the last three American presidents assumed office after losing the popular vote, and more sobering still to consider the performance of the two popular losers.
As for the founders’ reasons for cobbling together the Electoral College, space precludes addressing them one by one, but virtually none of them withstand scrutiny in the modern world. Leaving all else aside, the founders envisioned an Electoral College entirely different than the one we know, an institution that would be repugnant to modern notions of democracy. They imagined the electors as a body of persons not bound by the popular votes of the states from which they were chosen, but permitted and expected to exercise judgment in casting their votes. As Alexander Hamilton wrote in the Federalist, Number 68:
[T]he immediate election [of the president] should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.
Hamilton, who was no democrat, viewed the interposition of elite electors between the judgment of the democratic mob and the selection of a president as a good thing. Few would join that opinion today. And in any case, the Electoral College never served the function the founders envisioned for it. Rather, it has lingered as a means of preserving outsize influence for underpopulated rural states, of giving power to real estate rather than citizens.
But what have the deficiencies of the Electoral College to do with impeachment? Formally, little or nothing. Nonetheless, several connections suggest themselves.
First, there is, I think, a definite link between the voting public’s perceptions of the legitimacy of the presidential selection process and the ease with which those on the losing side turn their thoughts to impeachment. In Mr. Trump’s case, impeachment talk began almost as soon as the election results were announced. Some of the impetus for such talk surely stemmed from what many people across the political spectrum viewed as Mr. Trump’s manifest unsuitability for the office. But the idea of impeachment has, I think, also drawn strength from the undeniable fact that, measured on strictly democratic rather than formal constitutional grounds, Mr. Trump’s presidency lacks legitimacy.
Mr. Trump’s defenders (and indeed many who don’t like him, but are of a pragmatic turn of mind) may respond dismissively that the election rules written into the constitution make him legitimate beyond question. But those who find both the man and the anachronism of the Electoral College wanting can fairly respond that impeachment, too, is a constitutional mechanism, one that the founders imagined would be employed rather more often than has historically proven necessary. In short, an unsuitable candidate made minority president by one constitutional mechanism can be unmade by revivifying another constitutional mechanism devised to protect the republic from dangerous chief executives.
Second, and here my thoughts are a good deal more tentative, might it not be argued that the standards of impeachable conduct are fractionally less forgiving for a president whose democratic legitimacy is impaired by having been soundly rejected by a majority of the electorate? I’m not yet prepared to press this point very far because I see a number of fair objections to it. But inasmuch as impeachment is, by express design, a political judgment on both the personal conduct of a president and his capacity to fulfill the duties of his office with the confidence of the country, the question is worth thinking about.