With Elizabeth Warren calling for the eradication of the Electoral College, one asks the obvious question whether it might not be as well to make a number of changes to our Constitution — a dated document that could well be strengthened. One obvious change would be to address the matter of the infamous Citizens United decision which has opened the road to corruption in the form of unlimited financial donations to selected candidates who will exercise the will of the corporations who support their candidacy.
The Electoral College, of course, was established during the founding years of this nation in order to guarantee that the very best people available would be elected to the highest office in the land. The founders didn’t really trust the people and they felt it necessary to have a buffer, if you will, between the people and the elected officials. Indeed, the representatives are the only group directly elected by the people in the original Constitution and the representatives were presumed to have short terms in order to go back to work after a brief spell at governing (which paid very little). The Senate was to be selected by the state legislators and the Electoral College would select the president — not the people themselves.
Recently, however, we have seen how faulty this reasoning was when the popular vote in the most recent election selected the best qualified candidate for president by nearly three million votes and the electoral college voted against the popular vote and selected a man who has proved to be entirely unqualified for the highest office and, at times, bewildered by what is required of him.
In any event, former Supreme Court Judge John Paul Stevens, who was appointed by a Republican President, wrote a book in which he proposed six amendments to the Constitution that would bring the document more or less up to date. Not only does the Constitution ignore altogether the immense power of the corporations, but it ties the hands of government in important ways. Furthermore, it lacks the necessary checks and balances to the power of the president — ironic because that was the major thrust of the document at the outset.
The first amendment Stevens recommends is an alteration to the “Anti-Commandeering” rule in Article VI of the Constitution which
“unnecessarily and unwisely curtails the power for Congress to make use of state officials in the enforcement or administration of federal law. It creates a serious risk that the federal response to national catastrophes or acts of terrorism will be inadequate; it also impairs the efficient administration of ordinary federal programs.”
A case in point was the Printz case in 1997 following the attempt on president Reagan’s life that would establish instant background checks to prevent felons and persons with mental problems from buying guns. The problem was that state officials simply ignored the court’s decision on the grounds that the Supreme Court cannot direct states officials in their duties. In times of emergencies, such as the shootings of the children and teachers at Sandy Hook, there needs to be a quick federal response that is not hindered by questions of States’ rights. In a word, the problem does back at least to the days of the “states rights” battles that preceded the Civil War and are still hiding deep in the words of the eighteenth century Constitution.
Stevens would also introduce amendments to the Constitution that would prohibit political gerrymandering; modify campaign finance laws in order to reduce “the power of the purse in determining the outcome of elections [see above]”; the elimination of the supposed immunity of state agencies or state officers from liability for violating an act of Congress; the inclusion of the words “the death penalty” in the clause prohibiting “cruel and unusual punishment,” thereby eradicating the death penalty in all states due to the fact that it does indeed constitutes cruel and unusual punishment. And finally, Stevens proposes the insertion a simple phrase in the Second Amendment making clear the founders’ determination to arm the militia but not the entire population of the country. The Amendment would then appear as follows:
“A Well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear arms when serving in the Militia shall not be infringed.”
The phrase in italics would be added and the original intent of the founder made clear. The Amendment is not about the right of every Tom, Dick, and Sally to bear arms. It is about the need for an armed militia to protect the nation from foreign enemies.
In the end, whether one agrees with Stevens or not, it is clear that a document written in the eighteenth century by remarkable men who had the best interest of their country at heart is today lacking in adequate protection from the very thing they most worried about: corruption and the abuse of power. Surely, it’s time for change. Let’s start with the Electoral College!
hughcurtler 
Our indifference and apathy, division and loss of direction….our shames too many to count. Moving forward for the good of the country and mankind…you would think the bandwagon wouldn’t be large enough to accommodate all who were on side. One would think. Right, Hugh? One item. Just the one. Choose one and run with it….The Electoral College…top of the list. Ready. Set. Go.
Right….
AMEN!
I fully concur with every one of Stevens’ suggestions. The Constitution was intended to be a living document, one that would be adjusted over time, as the world and circumstances changed. Today’s world is far different than the world in 1787, and no doubt the framers of that document would be appalled at the ways the Constitution has been used to justify certain abuses, such as every Tom, Dick & Sally owning assault weapons that can kill hundreds within just a minute or two. There are those who cry that the Constitution is a sacred document and should not be changed, should be interpreted literally. And yet, if we had done that, African-Americans would still be slaves, women would still not be able to vote or own property, and much more. It isn’t, I think, that those who are against amending the Constitution actually believe it is a sacred document, but rather that they would use it as a tool in their favour to keep those things that they like, those things that bring benefit to them, if not to the rest of the nation.
Good post, Hugh! I was not aware of Justice Stevens’ book, but I will look for it. Thanks!
It’s a terrific read. He writes well and has loads to say!
Just ordered it, after previewing a sample!
Well done!
Hugh, this makes too much sense. For those who say we should not make changes lose sight that we have more than two dozen times, not to mention judicial interpretations.
Two of the last three Presidents did nlt win the popular vote (Bush did thr second time). As more people move to cities, the electoral college will be prone to similar results. Keith
It’s an anachronism.
Dr. Curtler,
I appreciate that you discuss Justice John Paul Stevens’ book, SIX AMENDMENTS…”.
As you stated, Justice Stevens writes of the need to update the Constitution in a clear and convincing style. Yet, I was intrigued that, while he addressed limiting the “sovereignty” of the President, gerrymandering and campaign finance, he did not take up the matter of the Electoral College.
Stevens’ arguments in favor of increased checks on the power of the President, redistricting reform, and limits upon campaign finances from corporations are made in the interests of democracy, to be sure. Yet, the very inception and effect of the Electoral College are to undermine democracy in the first place.
Though justified publicly in the name of assuring that the ‘right kind of person’ would become President (Hamilton, Federalist Papers, #68), the Electoral College resulted from a concerted effort upon the part of less populous and slave-owning states to maintain their power in relation to more populous states. (See, among others, https://www.smithsonianmag.com/history/electoral-college-has-been-divisive-day-one-180961171/). In intention and effect, the Electoral College gives disproportionate power to rural white privilege.
Indeed, both the Senate AND the Electoral College originally reflected a deep distrust of democracy. And though the Senate is no longer an assembly of Senators appointed by governors (per the Seventeenth Amendment to the Constitution), the Electoral College persists as a barrier against democracy.
Lest we forget, though the Framers of the Constitution distrusted the masses, hence we have a Republic and not a Democracy, it was the Electoral College not the public that certified the elections of both George W. Bush and Donald Trump. These results alone warrant a critical reconsideration of the College.
Impressed as I am by Justice Stevens’ well-argued proposals for six constitutional amendments, I am also disappointed that he did not include abolishing the Electoral College among his proposals. “Seven Amendments” would have been an equally fetching title.
Nonetheless, I recommend as wide a readership of Justice Stevens’ book as possible and I appreciate that you discussed it for our consideration.
Respects and regards,
Jerry Stark
It is a remarkable book indeed. But, as you say, it is odd that he would ignore the matter of the electoral college which has long since worn out its welcome!
Which is what you’d expect a Democrat to say, being the twice loser of such a contest. What WILL happen, however, if the Electoral College is annulled, is that every Small Population State will lose its seat as an Elector (Bismark’s Germany) and become the sycophant and servant of the couple Elector states. A very nice way to further the corruption of the already deeply corrupted System we already had. Nice advice, Professor. You put yourself on the side of history that gives rise to Hitler, speaking as an Old World German. Does that ‘hurt’ your feelings? Do you feel, yet, harassed?
Commendable.
I have long favored the elimination of the Electoral College because I know its roots and its effects. Those who wish to retain it fear democracy. One wonders why.
That’s so easy it almost begs description. Because you asked for it, here it is: Because the masses that comprise Democracy are so idiotic, uneducated, delusional and superstitious that the Enlightenment Fathers knew better than to entrust a Republican form of government, with certain inalienable rights, into their capricious and biased hands. THIS was an Age when Reason and History actually meant something, unlike our own when Professors like Mr. Curtler can, with credibility, defend the likes of the Democratic Party and its HRC cabal.
I’m only amazed that this inner circle of cult-like, mutual mind-massagers hasn’t long ago self-destructed on the basis of its own inherent absurdity. I guess that’s what you get when Classical Republicanism is displaced by Liberal Democracy, which as much relies upon Group Think as any form of Free Association liberated from Criticism. Disgusting. Btw, I despise Trump almost as much as HRC and the DNC. Frankly, I’m convinced American Civilization is DOOMED, exactly on the lines that you very unconvincingly describe.
Brutal, to be sure. Nothing like what comes next in terms of American Government over the Hoi Polloi.