Friday, March 17, 2017

Federalist No. 68, et al, Part VII: The Forlorn Hope, contd.

            Notwithstanding the adoption of the Twelfth Amendment in 1804, and a powerful inclination among the states in favor of the winner-take-all selection model which culminated in the 1830s, public opinion concerning the Electoral College continued to be at least somewhat malleable through at least the 1820s. Though by that time the system had become largely pro forma, with Electors increasingly expected to vote in line with their declared party affiliation, not every observer was entirely satisfied with the advantages that this trend bestowed upon the nation’s dueling political factions. A particularly significant critique in this vein – though perhaps not a very surprising one, all things considered – came from the pen of another of the original architects of the Electoral College itself, James Madison. At that stage in his career – the summer of 1823 – Madison was a former Secretary of State and former President who held no public office and had every reason to look back upon the preceding twenty years with eminent satisfaction. The party that he had helped create, the Republicans, had controlled the Presidency, the House of Representatives, and the Senate without interruption since 1800, aided in no small part by the efforts of its various state organizations to command their respective Electoral College votes. The opposing Federalist Party had almost completely disappeared as a result and very little seemed to stand in the way of the continued Republican dominance of American public life.

            In spite of of these outwardly fortuitous circumstances, however, Madison remained concerned. He had long since expressed his preference that the several states should adopt the district election model for choosing presidential Electors – it being, he insisted, the nearest to what the Framers had had in mind – and showed frustration at the enthusiasm with which either the winner-take-all or legislation appointment methods had been embraced. And though, in some respects, a “good party man” who had worked hard to secure and maintain every advantage for his fellow partisans, Madison maintained what might now be thought of as a somewhat technocratic streak. At heart a creature of policy rather than ideology, he tended to take a measured, cautious approach to issues, to study intensely, reflect at length, and support what he believed to be the single best possible initiative. This characteristic adherence to pragmatism is perhaps best exemplified by Madison’s support for the chartering of a second national bank in 1816. The First Bank of the United States had been the brainchild of arch-Federalist Hamilton, was bitterly opposed by Jefferson, Madison, and their fellow Republicans, and had been allowed by the latter to go fallow once its charter expired in 1811. The financial strains exerted upon the nation by having to wage the War of 1812 (1812-1815), however, effectively convinced President Madison and his allies in Congress that national banking could indeed serve a useful purpose. The resulting Second Bank of the United States, after first struggling to find its footing, ultimately proved capable of maintaining the nation’s line of credit and its currency on a stable footing. Whether or not Madison could foresee this outcome in 1816, he at least seemed to possess the humility and clarity of vision to attempt to correct a miscarried policy in the face of ideological opposition.

            With this quality in mind, Madison’s specific response to what he evidently perceived as the failures of the Electoral College are perhaps not so hard to understand. Said response took the form of a letter, written to fellow Virginian George Hay (1765-1830) on August 23rd, 1823 and apparently in reply to Hay’s, “Attention to great Constitutional topics.” Judging by some of the context that the letter provides, Hay had earlier written to Madison with a number of proposals for reforming the Electoral College via the mechanism of a constitutional amendment. Madison’s answer ran through several of these proposals, expressing agreement, or disagreement, or uncertainty, before finally offering a short passage of draft text. The 4th President of the United States, Father of the Bill of Rights, and co-founder of the Republican Party was apparently still of the opinion that district elections were the best possible method for selecting Electoral College delegates. “The district mode,” he explained,

Was mostly, if not exclusively in view when the Constitution was framed and adopted; & was exchanged for the general ticket & the legislative election, as the only expedient for baffling the policy of the particular States which had set the example.

One ought to make note, in this passage, of at least two significant points. The first is Madison’s continued affirmation that the district election method had been foremost in the minds of the Framers when they originally designed the Electoral College. While on one hand pegging Madison as something of a proto-Originalist – that is, someone who chooses to interpret the Constitution through the lens of its authors’ intentions – it also implies something about his perspective on the contemporary state of the system itself. By 1820, as noted in a previous entry in this series, nine states practiced the winner-take-all method, nine practiced legislative appointment, and the remaining six held district elections. If, as he ardently maintained, the Framers really had designed the Electoral College with the district election method in mind, then Madison surely would have agreed that by 1823 the system had already ceased to function as originally intended.

            The second element of the above-quoted passage worth reflecting upon is Madison’s account of how and why “the general ticket & the legislative election” became the preferred methods for appointing Electors. Adopting these methods, he explained, though they were not what the system had been designed to accommodate, was, “The only expedient for baffling the policy of the particular States which had set the example.” This sentiment, fittingly enough, aligned Madison with his friend and partner Jefferson. The latter – as also noted previously – had written in a letter dated January, 1800 that, “An election by districts would be best, if it could be general; but while 10 states choose either by their legislatures or by a general ticket, it is folly & worse than folly for the other 6 not to do it.” Both of these men – the co-founders of the Republican Party and perhaps the most significant beneficiaries of its subsequent success – favored the district election method, understood why it was not practicable, and lamented the fact of it. So long as a critical mass of states practiced either the winner-take-all or legislative appointment methods, thus lending the parties that formed their respective governments a distinct advantage, there was no profit to be had in standing on principle.

While this perspective might appear to be an outwardly cynical one – stressing, as it does, the importance of outcome over method – there is no reason to doubt that either Jefferson’s or Madison’s lament was anything other than sincere. The Virginia duo may have been the guiding hands behind the Republican Party, but they were as capable of being blinded by the promise of victory as any of that faction’s rank and file; or perhaps even more so, because their respective reputations, energies, and future prospects were so wholly invested in the success or failure of the party itself. Continued failure at the ballot box may very well have resulted in a loss of credibility, a strengthening of the Federalist establishment, and possibly even charges of treason or disloyalty.  That being said, neither Jefferson nor Madison was oblivious enough to completely lose sight of the sacrifices they were making. Madison’s Federalist No. 10 speaks powerfully of its author’s distaste for faction and his desire to construct a system in which consensus was strongly encouraged. And yet, Madison clearly defied these sentiments by co-founding an organized political movement, acting as one of its strategic planners, fostering partisanship, and encouraging the use of electoral systems that favored majoritarian rule and stymied potentially constructive debate. The result was doubtless some degree of personal consternation. Encouraging the constitutional codification of the district election model – as he had done for decades, but which he could never bring himself to attempt to enact – may thus have served as a way for James Madison the elder statesman – he was seventy-two in 1823 – to exorcise some of the frustration or guilt he still harbored over the way he and his fellow Republicans had so avidly sought after political advantage.

Further evidence of this rather retrospective, almost penitent line of thought can be found in another of Madison’s recommendations to Hay in the former’s August, 1823 missive. In addition to conforming more closely to the original intent of the Framers, Madison advised that a standardization of the district election method may also have served to repel some of the more destructive aspects of partisanship and encourage a much stronger sense of community than the status quo would admit. “The States when voting for President by general tickets or by their Legislatures,” he began, “are a string of beads [.]” The likely significance of the metaphor was to emphasize the separateness and wholeness of the various states. As beads on an abacus can be added to or subtracted from a resulting sum, so the states that practised either the winner-take-all or legislative appointment method added to or subtracted from the vote tallies of the various eligible candidates. The victor successfully assembled the required number of states, irrespective of the potentially sizeable number of voters in each state who chose otherwise. States that failed to select the winner of the contest were likewise portrayed by the outcomes of winner-take-all and legislative appointment as being unequivocal in their rejection. There could be no fractions of states awarded to one candidate or another, just as there are no fractions of beads on an abacus. The result, among other things, was a method of election that produced highly adversarial results – states aligned themselves entirely with one office-seeker or another, and may thereafter have been defined by whether they picked the winner or not.    

  This result, Madison avowed in his letter to Hay, was neither beneficial nor unavoidable. If all of the states were to practice the district election method, he wrote, 

Some of these [districts] differing in sentiment from others, and sympathizing with that of districts in other States, they are so knit together as to break the force of those geographical and other noxious parties which might render the repulsive too strong for the cohesive tendencies within the Political System.

While it may have represented a somewhat idealistic perspective on factional politics – particularly as the nation hurtled headlong into the hyper-partisan Jacksonian era – the basic contours of Madison’s argument are fairly straightforward. Because the district election method would allow different regions within a single state to support different candidates for President, Madison felt it was likely that economic, or religious, or cultural communities would begin to reach beyond the borders of their respective states in an effort to assemble the votes to elect their desired nominee. Thus, instead of an outcome in which states were outwardly united, inwardly divided, and set in opposition to one another based on party identification, the bonds between communities and across states would be strengthened, founded upon their shared consensus as to who would best fill the office of chief executive. No longer would parties be compelled to do battle over Massachusetts, Virginia, or Pennsylvania, with the victor claiming the sum total of their respective Electoral votes. Rather, parties would be forced to appeal to broader interests – the agrarian vote, the Evangelical vote, the urban vote, etc. – and attempt to construct coalitions of voters across multiple states.

            Whether it was realistic for the era or not, Madison’s belief in the ability of political institutions to foster community and consensus was very much in keeping with his own stated principles. Returning once more to Federalist No. 10, his interest in using large scale debate, wide spectrums of opinion, and majority rule to decrease the traction enjoyed by divisive topics and increase the odds of compromise are clearly and insightfully expressed. The greater the breadth of opinion represented within a discussion, he asserted, the more likely its participants were to find common ground, or risk failing to come to any decision at all. In time, finding consensus would become second nature, all but the most extreme parties would grow confident that their voices were being heard, and a strong communal bond would coalesce around values like mutual respect, compromise, and open deliberation. Granting, once again, that Madison had spent the better part of his professional career after putting forth these principles in print helping to erect a highly adversarial party system whose existence ran counter to just about every one of them, his late-in-life advocacy for the “cohesive tendencies within the Political System” are no less significant. When one also considered the context of his newfound support for the district election method – and the many marvelous benefits ascribed to it– the fact of it becomes more remarkable still.

            Madison and Hay were, after all, both Virginians. Not only had their shared home state contributed three of the first five Presidents, but its population – inflated, it bears remembering, by a very large number on non-voting, politically unrepresented slaves – consistently entitled it to either the largest or second largest number of presidential Electors in every vote between 1788 and 1820. Under the terms of either the winner-take-all or legislative appointment methods, therefore, Virginia often represented one of the single greatest prizes to the various competing parties, and often asserted itself as the crucial lynchpin of victory – alongside New York – in the Electoral College. The Old Dominion was also, as it happened, a bastion of the support for Madison’s Republicans, and had voted for the winning candidate in every presidential election between 1800 and 1820. In consequence of these various advantages, there would seem to have been little reason for two Virginians in 1823 to favor reducing either the influence that their home state possessed or the electoral support that the Republican Party enjoyed. A nation-wide, constitutionally-mandated adoption of the district election method would have potentially brought an end to this status quo by allowing Virginia’s vote to be split among however many candidates its voters favored, and by dividing the attention and the resources of the Republicans across a multitude of districts instead of a handful of states.

            Consider, for a moment, contemporary Congressional representation as a potential measure of how a state’s Electoral College support would have been fractured by the adoption of the district method. Virginia, though its Electoral vote had gone to the Republicans in every election between 1796 and 1820, managed to send a not-inconsiderable number of Federalists to the House of Representatives throughout this same period. In 1800, six of the state’s nineteen Congressmen (roughly a third of its delegation) were Federalists. This tally fell to one of twenty-two following the 1808 Mid-Term Elections, rose to seven of twenty-three by the end of 1812, and fell back down to two of twenty-three in 1820. If Virginia had been using the district election method throughout this period, and if the districts established for the purpose of choosing Electors overlapped with the districts assigned to the state’s Representatives in Congress, it is at least possible that this small but resilient core of Federalist support could have carved out a share of the Old Dominion’s Electoral vote for themselves. Granted, stripping a potential six or seven of twenty-two or twenty-three votes from the Republicans’ total would likely not have represented much of a threat. It also seems likely that if the state government was responsible for drawing Electoral College districts, whichever party was in charge – read: the Republicans – would likely have attempted to create – read: gerrymander – the most favorable electoral map possible. All that being said, use of the district model would undeniably have forced both major parties to rethink their strategic calculations and address different sets of interests and concerns than either winner-take-all or legislative appointment demanded of them.

            Examining the same statistics from, and applying the same proposal to, New York more clearly illustrates the potential difference between competing at-large for a state’s Electoral votes and Madison’s stated preference of competing in a set of districts therein. In every presidential election between 1800 and 1820, New York supported a Republican candidate, and beginning in 1812 they possessed the single largest share – twenty-nine – of the two hundred seventeen Electoral votes up for grabs. In spite of its seemingly unwavering support for the party of Jefferson and Madison, however, the Empire State was closely divided between Federalists and Republicans throughout this two decade span. Four of New York’s ten Congressmen elected in 1800 were Federalists, putting the two parties one seat away from a dead heat. This tally increased – though the percentage decreased – to five of seventeen in 1802, dropped to three of seventeen in 1806, climbed to eight of seventeen in 1808, soared to nineteen of twenty-seven in 1812, and finished with seven of twenty-seven in 1820. Projecting the same scenario as with Virginia – Electoral College districts that roughly overlapped with Congressional districts – the use of the district election method would seemingly have caused New York’s support for one party or the other to fluctuate significantly from one presidential election to the next. Bearing in mind the same caveats as noted with Virginia – the potential effects of gerrymandering and the generally superior position of the Republican Party – and factoring in the often ruthless competition that party organizations engaged in during the lead-up to a presidential election – as previously illustrated by the furor surrounding the New York legislative elections of 1800 – and the end result of applying the district election method to the state New York is admittedly hard to calculate. Nevertheless, there would be a result of some kind. Strategies would shift, and priorities would alter, and the dynamics of both state and national elections would change.

            This, in spite of the harm it may have visited upon the fortunes of his own party, was evidently was Madison wanted. As he indicated in his letter to George Hay, the Electoral College need not only serve as a mechanism for appointing the nation’s chief executive. Suitably restructured, it could aid in fostering a greater sense of community than the preceding twenty years of partisan warfare had wrought. “Cohesive tendencies” were what at least partially concerned him, and a system that was able to “knit together” the residents of electoral districts across multiple states was what he evidently desired. This interest in process as well as outcome – how something is achieved, as well as exactly what is achieved – was typical of Madison, though his actions across the two prior decades showed a greater interest in seeking the latter. The American political establishment manifested a similar fixation – with state and national parties forever seeking advantage in the shadow of election after election. Indeed, by 1823 the nation was if anything transitioning into one of the most partisan eras in its history rather than shifting towards anything like the more deliberative atmosphere that Madison seemed to favor. In consequence, the reflections and proposals he put forward in his correspondence with George Hay are at once highly unusual for the period, informative of how the Electoral College actually functions, and not a little bit tragic.

            Despite recurrent claims by pundits and party faithful in the 20th and 21st centuries that the quirks inherent in the Electoral College are all a part of what the Framers intended, the often insightful and well-structured objections registered by some of the same quite clearly indicate that this is not the case. Indeed, it arguably ceased to be the case within a quarter century of the system’s implementation in 1788. Alexander Hamilton and James Madison could both fairly claim to have had a hand in designing the Electoral College. And both also seemed to have a reasonably clear idea of the specific role that the Electors were supposed to perform. Hamilton made it quite plain in Federalist No. 68 that the individual discretion of the various members of the Electoral College was fully intended to inform who was chosen to serve as President of the United States. The office was too powerful and too vulnerable to potential abuse, he wrote in 1788, to be bestowed unthinkingly, without due deliberation by those who possessed the requisite “information and discernment,” or as a reward for displays of “low intrigue, and the little arts of popularity.” In spite of these public assertions of what he and his colleagues had intended, however, the Electoral College very quickly began to change.

            Parties emerged, solidified, and began directing their respective organizations to seek every advantage possible in the ongoing contest for political power. The laws which governed how Electors were chosen – left by the Constitution entirely up to the states to define – became a major theatre in this ongoing battle. At that point – as early as the mid-1790s – the intentions nurtured by the Framers took a decided back seat to the needs of the nation’s increasingly animated partisans. The district election method – the expressed favorite of Hamilton and Madison, both – began to lose ground to more expedient voting schemes. Deliberation began to fade as a major quality of the Electoral College. Party strategy became the core consideration. In spite of their ideological objections, Hamilton and Madison were themselves ultimately complicit in advancing this trend. They became tacticians, sought to clear the way for the success of their respective parties, and actively helped along the conversion of the system they had lent their hands to create from one that was intended to benefit the American people to one that first and foremost benefited specific factions thereof. And yet, they were no longer its masters. The Electoral College remained in part their creation and they could both continue to claim special knowledge of how it was originally intended to function. But by the turn of the 19th century, the system had effectively taken on a life of its own.    

            Hamilton’s failed attempt at a Constitutional amendment and Madison’s letter to George Hay both speak to this fact. If, in 1802, the Electors were continuing to perform their duties as the Framers had envisioned, why would one of their number attempt to alter the text that governed their powers and responsibilities? If the Electoral College was functioning as designed, why would one of its designers have wished to modify the original plan? The desires expressed by Madison in his missive to Hay beg similar questions. If the system by which the American people elected their chief executive was working as intended in 1823, why would one of its architects have declared that a major modification was “very proper to be brought forward [?]” If the modes of choosing Electors then in favor – winner-take-all and legislative appointment – were in keeping with what he and his colleagues had preferred from the start, why would Madison have described their adoption as “expedient [?]” As it happened, neither man seemed entirely satisfied with what the Electoral College had become over the course of their respective professional lives. Notwithstanding their personal contributions on that score, the system had turned into something they had never intended it to be. The degree of their dissatisfaction, and the importance they attached to a remedy, may fairly be measured by their shared resort to Constitutional amendment. Only the laws and regulations considered absolutely paramount to the proper administration of the American republic were to be contained within that hallowed document. If modifying the same was the only reasonable method of addressing the flaws they perceived, then the contemporary Electoral College must have been, from their perspective, well and truly broken.

            That the efforts of both these men ultimately failed is no less significant that the fact that they felt the need to try. As striking as the image undoubtedly is of two of the Framers of the United States Constitution attempting to repair a flaw of their own creation, it may in fact come second to their respective inability to accomplish the same. Not only had the Electoral College been so completely transformed by the partisan conflicts of the late 18th and early 19th centuries that its creators felt the need to rein it in, but its transformation arguably helped it to elude their best attempts. Whatever cultural or political authority Hamilton still possessed in 1802, or Madison held fast to in 1823, the Electoral College was no longer theirs to command. By the fourth national election under its auspices, the system belonged to the parties, or to the states, or to the American people themselves. It obeyed their wishes, channeled their desires, and elected their President. Hamilton and Madison, with their principles and their ideals, their belief in deliberation and their faith in the power of process, had been left behind. In consequence, from at least the turn of the 19th century until the present, it cannot fairly be said that the Electoral College is and has been what the Framers endeavored to make it. Rather, it is and has been what the American people have decided it should be.        
Anyhow, you know the drill. Take a look. 

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