Opinion piece, meant for stirring discussion and posing questions.
Back in 1786, the fledgling united states was run under the Articles of Confederation. These were very very states rights oriented and left very little power to the federal government. In fact, the second article, after the naming of the nation, says: “each state retains its sovereignty, freedom, independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated.” It sounds alot like the states rights amendment, except this confederation gave a lot less power to federal government. The federal govt had the power to declare war, and conduct foreign policy and trade deals. It banned state standing armies, but allowed militia (think national guard). It also limited delegates to 3 years out of six, so there was a rotation.
The articles were not perfect, in fact, very far from it. They required a lot more unimanous consent that left more undone than done. But, they created the office of the president, which was elected by the Congress, and held delegated powers. It created a judiciary, and it created a model of federal government whose role was to wage war or peace and conduct foreign policy. They wanted the states to have almost all the other powers.
It was a one chamber congress, and held all power. They appointed judges, they appointed the president, which was known as “President of United States in Congress Assembled”, who presided over the meetings. They did ban congressmen from being judges, so separation was started there, but not by much.
Washington, Hamilton and others realized how weak the federal government was, and they had always wanted a strong one. So they convinced congress to give it another shot. Learning lessons from the failures of the Articles.
The states banded together in 1777 and then again in 1787 for mutual protection and defense. To do that, they gave up the ability to negotiate thier own treatries, and deals with foreign powers. They also gave up thier individual militaries, but kept the militias (which are our modern day state guards) in case the federal government got to greedy. They kept however, thier own identies and a lot of power over there territory, people, and institutions. Your marriage is state licensed, so is the drivers license, and most court cases are adjudicated under state law, even in federal court.
To ensure that they had one face to present to the world they revamped the presidents role. One of the biggest changes from the articles of confederation to the constitution is the stronger executive, who is elected by the people, or so we think.
The president is choosen by the states. He is not, as commonly thought, chosen by the people. The president doesnt even really serve the people. Lets examine how he was intended to be elected, then we will move into his powers and limitations.
The electors that vote for the president are chosen in what ever manner the state, key, state, determines. Which means they could have the governor appoint the electors, or the legislature pick them with no oversight. Most of the states did allow direct election of the electors by districts, but not all, and no state was required to.
Now the voting population was also much smaller. There are a lot that could be said about how we have expanded it to everyone (not convicted of a felony or mentally incompetent) can vote, but I am taking a constructionist look at the intentions in 1787. The states determined the qualifications and most determined that white land owners were the voters. This makes some sense, if you were a land owner, you were middle class, and most likely had time to discuss the issues of the day and read the paper. This would make you an informed person who could make an informed choice. If you did not own land, you were most likely working in a factory or the fields and would have much less free time. So, in a way, this made sense. Also, the secret ballot was not a thing yet, did not come into being until 1890.
So, the voters of the states, elect the electors (or the legistures/governors that will appoint the electors) that will elect the president. Now there are very very few qualifications to be president. You have to be over 35, live in the US for at least 14 years, and be a citizen by birth. (Supreme court has ruled this includes babies born to American citizens overseas who apply correctly). But the founders put a very specific clause into the voting procedures, they cast a ballot for two persons (later amended to one for president and one for vice president) “one of whom shall not be an inhabitant of the same state with themselves”.
For example, A ticket with Virginians as both president and vice president would make the electors of Virginia vote for someone else for one of those votes. That seems a little odd if it was to represent all of Americans.
Hence why he represents the states. The Consitution empowers him to be the single point of contact (forbidding contact in a legal sense to the states by a foreign power), for all foreign policy decisions. It also makes him the commander in chief of the armed forces, that would defend all the states. He is also in charge of executing the laws passed by the national government fairly across all states, superseding the laws of the states. The founders also made sure that for a law to be passed, not only the people via the reps, but also the states via the senate, would have to agree. If the president, who represents the majority of the states agreed, its a law, if not, then a super majority of both the people and the states override the veto, enforcing both the states and peoples will. The constitution also requires that he let the congress know what’s going on from time to time, and what policies he’d like to see. Since he’s representing the majority of the states, that shouldn’t be far off from what the senate wants or what the reps want.
As for the role of the vice president, he was elected in the same election as the president and was the runner up. The idea may have been that the vice president received the second most votes, so there for is the “2nd choice” for president, but I have a theory as an addition. The vice-president presides over the senate, the chamber that represents the states. The vice-president also may cast a vote only in a tie, which, because every state has two senators, is always an option. In addition, a senator who is sent to the senate before the current president/vice-president are in office, may still be in the chamber for his entire term, the vice-president, may have been an attempt at allowing a minority, all be it, a small one, to block something.
As an example, the election put a Federalist into the white house, but a member of a different party as vice-president, since he received the next highest votes. In that same election year, the senate is now split 50/50, due to changes in the appointing legislatures of the states. Since the vice-president has the tie breaking vote he can swing the senate toward his parties agenda, when the senate is split. Adding yet another place the states can swing the power, since the senate is required for laws to be passed, and since the vice-president is elected by the states in the minority, or at least less popularity, it allows the minority to have a small flip if the senate is split. With the advent of the ticket system, this is no longer the case, but it is an interesting theory as the way it could of been intended.
Also, the advice and consent clause was very key to making sure the states keep a check on the president. Article 2, section 2, clause 2, says that the senate must be consulted and approve of “ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by Law”, it also allows them to delegate inferior (lower) officers to the President alone, or in heads of departments (secretaries). The law currently has down to under secretaries and all federal judges as needing senate confirmation, so the president can propose a Californian to be a judge in Wyoming, but the senator from Wyoming may put a stop to it.
So, the president can’t actually appoint anyone who has a lot of power or a job for life without a majority of the states (who appointed the senators) agreeing with it.
The electoral college was never intended to ensure that president represents the will of the voters, it was intended to represent the will of majority of states. The comprise was tying the electoral votes of each state with the number of reps and senators. So, each state, even Wyoming does not have enough people to be its own house district, gets 3, making sure that even though it has 70x less population than California, it only has 20x less votes in the electoral congress. This situation would not have been designed if the founders did not intend the states to be the ones the president represents.
The President, as was in the articles of confederation, is supposed to represent and be subordinate to the states. Not the people, the states as a whole.
I believe the role has changed from its intention in 1787. The Constitution has changed to allow for everyone over 18 to vote, it has changed to allow for direct election of senators, and it has changed to add term limits and clarify the succession. Which, was enacted by congress via statute, putting themselves (speaker #2 and senate pro tem #3) right behind the VP. I think it is time to re-examine if the electoral college really does represent what the president and vice-president represent. I feel it doesn’t.
The floor is open.