There Is No Salvation In The Electoral College

In my post on the electoral college a few weeks ago, I gave a little bit of the historical background, including a reference to Federalist 68, in which Alexander Hamilton described the college as, more or less, a group of wise men who could be relied on to exercise sound judgment and ensure that no one unqualified ever would become president. It turns out there is a group called Hamilton Electors arguing that the presidential electors should rally around another, more acceptable Republican candidate as a way to block Donald Trump’s election:

The Founding Fathers intended the Electoral College to stop an unfit man from becoming President. The Constitution they crafted gives us this tool. Conscience demands that we use it.

We should reject this kind of historical make-believe. Federalist 68 says what it says, but we have two hundred years of history that works differently. I admire the Federalist Papers —they are one of our country’s great contributions to political theory and they respect their readers much more than almost all political “messaging” today. But it’s just crazy to think that Alexander Hamilton’s plan for the electoral college, which was discarded almost immediately, has much to tell us about our predicament.

I’m sure all of the electors are decent people and that they all want to do what they ought to do. But with due respect to them, no one elected them because of their superior wisdom or judgment. To the contrary—we elected them to rubber-stamp the popular vote in each state. So even if we wanted to bring Hamilton’s intentions to life, there’s no reason to think that the electors we chose are the people to do it. Why is their judgment likely to be any better than the judgment of the people at large?

In my view the thing to do is to encourage our senators to hold really substantive confirmation hearings, to speak out against the many unqualified or inappropriate nominees named so far, to ask our representatives to engage in real oversight to police conflicts of interest, etc., not to focus on magic solutions to our problems.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. Folkman also serves as an arbitrator and is a member of the Commercial and Consumer Panels of the American Arbitration Association. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's treatise on International Aspects of US Litigation (J. Berger, ed. 2017), and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012 and 2014 - 2016.

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