ACRU

John Armor: American history shows reform is possible

This op-ed originally appeared in the Delaware County Times on August 8, 2008.

Most Americans don’t know there was another U.S. government, before the Constitution was drafted. Simplified books and courses leave out the Articles of Confederation, the government of the U.S. for its first 11 years. There were several fatal defects in the Articles; one was its presidency.

Concerned with the dangerous powers of the King of England and monarchies generally, the first framers created a presidency which was too weak. The “President of the United States in Congress Assembled” was elected for a one-year term by Congress itself. That “President” had almost no powers.

When John Hancock was elected to that post, he was too ill to travel from Boston to the capitol in New York during his entire year. The government functioned as well, as poorly if you prefer, without him. One of the major defects the framers sought to solve in writing the Constitution was creation of a “vigorous executive.”

They made the president the Commander in Chief of the military. They gave him the power to appoint all judges and major officials of the new government, subject to the Senate power to “advise and consent.”

Most important, they gave him power to veto legislation. It was not the absolute veto possessed by the Royal Governors of the American colonies (and by the governor of one subsequent state). Instead, Congress retained the right to override the veto by a vote of two-thirds of each House.

The task that most bedeviled the framers was the term and manner of election of the Chief Executive. Proposals varied from a single term of seven years, to a limit of two, four-year terms.

Because George Washington, the well-respected president of the Constitutional Convention, opposed that limitation, the framers settled on no term limitation. Then, George Washington as the first president set an example of retiring after two terms. Respect alone held that practice in place until the 20th century. Once President FDR violated that tradition, it was written into the Constitution as an amendment.

The manner of electing the president was an even greater problem. The framers had serious doubts about direct democracy, and rejected it in all three branches of government. For the president, they settled on the indirect process that people in each state would elect respected figures as Presidential Electors. They, in turn, would exercise their personal judgments in voting for presidents.

This process began to fall apart in the third election, when John Adams became president. By then, political parties had developed, despite the warnings against them both in Washington’s Farewell Address to the American people, and in James Madison’s Federalist paper, No. 10.

Electors were then simply pledged to specific candidates. Today, most electors are required to vote as pledged when elected, and it is a felony for them to exercise any discretion.

The college contains one continuing value. Because electors for president are elected state by state, candidates must to some extent focus on states, rather than merely on the largest cities, ignoring most of the nation. The framers did this deliberately. They made the electors equal to the states’ senators plus representatives to maintain the states’ political importance.

Alexander Hamilton argued in the Federalist, No. 78, that the institution of the Electoral College would prevent men who offered only “talents for low intrigue and the little arts of popularity” from becoming President of the United States.

I leave it to the readers to decide how many times the college has allowed people with “talents for low intrigue and the little arts of popularity” to become president.

We have never been quite satisfied with the Electoral College. More than 10,000 potential amendments to the Constitution have been introduced in Congress over the centuries. More than 1,000 of those were addressed to the terms and methods of election of presidents. None has ever come close to passage.

Two of the proposals were to choose the president by lot either from among the sitting senators, or sitting governors. Combine both of those and most presidential elections and a great deal of bad television ads, would have been eliminated, including the remaining parts of the 2008 election with two senators still in the running.

Various attempts have been mounted lately to get around the Electoral College with legislation. All such are unconstitutional because the Constitution trumps mere law. The only remotely possible reform is election of electors in each congressional district, rather than winner-take-all, statewide. States can do this by simple legislation, as Maine and Nebraska already have.

John Armor practiced law in the U.S. Supreme Court for 33 years, and has written and taught on constitutional issues. He is Counsel to the American Civil Rights Union.