Since the year 2000, two U.S. presidents were sworn into office who did not win the popular vote but did win the Electoral College. It happened only once in the previous 224 years. Will the Electoral College lead the country into a constitutional crisis? That’s the topic of this year’s Constitution Day event at the University of West Florida. The guest speaker will be Dr. Keith Whittington, the William Nelson Cromwell Professor of Politics at Princeton University. Dr. Whittington has written numerous books and articles on the Constitution.
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Bob Barrett: Are you sure the Electoral College hasn’t already caused a crisis?
Dr. Keith Whittington: Not quite yet. I think there's certainly lots of concerns that it, might generate a crisis or that even already has, generated a crisis. But I don't think so.
Barrett: If someone (were) putting together from scratch a way to elect their leaders, would they ever come close to putting something like this together?
Whittington: Probably not. So the United States did it for its own particular historical reasons. A handful of countries actually did adopt similar kinds of systems later, trying to model themselves on the American system. And they all abandoned it eventually. America stuck with it. And America tried it for some very specific historical reasons. There was real uncertainty as to how you'd operate a presidential election at a national scale. There's real uncertainty about whether or not the nation could actually even agree on a single individual who could occupy that kind of national office. And there are real concerns about the states that were forming the Union and whether or not they could trust each other politically. And so a lot of the Constitutional Convention in Philadelphia in 1787, was really trying to reassure each other from these different states that we really could work together, we really could form a single government. And the Electoral College was a kind of compromise mechanism that was trying to design a system that could reassure everyone that the president was not going to simply come from one part of the country, represent only one part of the country's interests, and would be oppressive to the rest of the country. So, it solved their particular problem that they were facing in 1787. But it's probably not the same kind of problem we would think about today if we were designing a constitutional system. And so it's unlikely we would reach for this same kind of solution that they did.
Barrett: Was there a mistrust of the population at that time putting this together or a mistrust of the intellect of the population?
Whittington: There was some. Certainly some people in the country at the time, including some of the constitutional delegates, had some genuine mistrust of the people. I think that's a misreading of the history for the most part. There were some concerns about that, but the broader concern that I think was more pressing for them, was not so much that the people couldn't be trusted, but they worried that the people simply wouldn't know. They never had national elections before. They didn't really have mechanisms for (running a national election). They didn't know (what kind of methods of communication could be used to inform) the voters (on) a national scale. And so part of their worry was every state, every locality would have its own favorites, people (they) knew that could be a potential presidential candidate. But they would have no idea who else might be a presidential candidate who would be a plausible president. So once you get past George Washington, (who) everybody knew, there was a real concern about, well, if you're in Massachusetts, would you even think of Thomas Jefferson? Would you even know he's a plausible candidate? And likewise, if you're in Virginia, would really think of John Adams, for example. And so they're really worried that what would happen is the voters wouldn't be able to consolidate around a single individual. (Today) we don't have that problem. And really, very quickly, the country didn't have that problem in part because political parties arose. And so even if you were in Georgia, for example, you could soon learn who John Adams was, because the political parties organized themselves to tell.
Barrett: So, what would a constitutional crisis look like?
Whittington: I think constitutional crises really sort of take two forms and fundamentally organized around the problem of ‘what if the Constitution just doesn't work anymore? It breaks down and can't organize our politics?’ What Constitutions are designed to do is take our political disagreements and channel them in productive ways, so that we can resolve our political disagreements, make some decisions collectively, and move forward. And if Constitutions fail to do that, that's a genuine crisis. So I think one way in which they might fail to do that is what I call a crisis of operation. That is, we follow all the rules and procedures of the Constitution and it leads us to a dead end such that we have a sort of impasse we can't overcome because the constitutional rules are in conflict. That's not a big problem with the American Constitution because it's written fairly well and mostly that doesn't occur. But there are still some risks of that occurring even in the American constitutional system. And then the other kind of crisis I think of is a crisis of fidelity, that is, we know what the rules are, we could follow them and they would give us solutions to our problems, but we just don't like those rules anymore. So as a consequence, there are parts of the Constitution that we might just simply abandon. And we abandon it not through the mechanism the Constitution gives us which is through an Amendment process, and we change that rule, but instead, we simply say, ‘I know the Constitution says that, but I don't care. I'm not going to do that anymore.'
Barrett: Have we ever come close?
Whittington: I think the one time that is sort of clear as an example of this kind of constitutional crisis is the secession crisis and the Civil War. You had genuine disagreements about who is actually running the country now. If you are a citizen in Alabama, who is your government that you actually have to respond to? And one thing that Constitutions are designed to do is be able to make that clear to you. If you are a citizen of Alabama, you know who the President of the United States is. You know whose laws you have to follow. One thing that followed from the secession crisis is it was no longer clear, if you are a citizen of Alabama, as to who the lawful government was, that you had to obey. And so the constitutional crisis of the secession period really did involve both these crises of operation and crises of fidelity. There are aspects of the Constitution we simply did not want to live with.
Barrett: So when we're done listening to you here at UWF, we'll have all the answers?
Whittington: Hopefully. Well, you certainly will have some things to think about, and that's often, as important, I think actually having the answer already.
Dr. Keith Whittington is a professor of politics at Princeton University. His Constitution Day talk on the Electoral College will be at the UWF Music Hall on Wednesday, September 13 at 6 p.m. The event is free and open to all.
