Deference to the Founding Fathers: Need It Be Blind?

We Americans revere the founding fathers and instinctively defer to them.

Should we?

At best, the founding fathers were a group of really smart guys (literally, mind you, as no women were included). At worst, they were self-interested aristocrats who sought to create a system that would perpetuate their position (and that of their descendants) in American society.

They were not omniscient.

Their foresight was limited.

Expressions that justify half-assed legislation, such as “politics is the art of the possible” and “never let the perfect get in the way of the good,” all applied to the negotiation of the Constitution. Many, many compromises were required to reach a final product. Which means some of the Constitution’s provisions represent a least common denominator, rather than pearls of wisdom. Case in point: The three-fifths compromise.

Which means when you find yourself deferring to the wisdom of the founding fathers, you need to ask yourself if you’re just being intellectually lazy as a means of justifying the result you like, but can’t otherwise justify.

So it is with the current debate regarding the electoral college, which involves two distinct, yet often conflated, questions:

First, is Trump’s election tainted because he failed to win the popular vote? Second, does Trump’s victory in the electoral college despite a sizable loss in the popular vote demonstrate that the electoral college is antiquated and should be scrapped?

The conflation here is unfortunate, because the first question hinders us from focusing on the second, which is a critical issue, and one where the “wisdom of the founders” is being invoked endlessly and foolishly by those who see a political upside in doing so, even on the pages of this blog, as hard as that may be to believe. Depending on how things evolve, those views could change.

The answer to the first question is unequivocally no. Both candidates knew the rules going in, and geared their campaigns to win under those rules. In terms of the result in 2016, Clinton’s popular vote victory is meaningless. It’s no more relevant than the run total of the World Series team that loses four of seven games. On this narrow question, the Clinton supporters who think Hillary was robbed because she won the popular vote simply are delusional. Sorry, folks, Hillary lost because she didn’t bother to set foot in Wisconsin during the general election campaign, no mater how many votes she won by in California.

But that doesn’t mean the outcome of the 2016 election isn’t absurd. It is.

The crux of the problem here is that the electoral college has no modern-day justification, but, because it is rooted in the Constitution, the intellectually lazy will defend it on the basis of the foresight of the founding fathers.

It is true that the electoral college was in part a compromise to address the concerns of small states. It also was part of a more general concern held by Hamilton and others that direct democracy was dangerous.

Does such “wisdom of the founders” in any way justify maintaining the electoral college? In evaluating that question, consider the reasoning of the founders in light of the following realities:

(1) The distortion in modern-day election results has nothing to do with small states. Rather, it is that a handful of states, the so-called “swing states,” control a relatively large number of electoral votes and, because they are close to break-even in their demographic make-up, have outsized influence in the electoral process.

(2) We’ve long ago abandoned the fears the founders had regarding direct democracy.

(3) We’ve abandoned the means by which the founders believed the electoral college would safeguard us from the perils of direct democracy. As conceived by the founders, the individuals elected to the electoral college would cast real votes. In the modern era, they don’t. They are elected along party lines and vote that way.

(4) The Constitution doesn’t specify the manner in which the states allocate electoral votes. That is up to the states. For whatever reason, 48 of 50 states have decided on a winner-take-all system, thereby allowing a razor-thin victory by a candidate in one state to offset entirely a landslide victory in another state. But it actually could be worse. Consider what would happen if every state allocated electoral votes in the manner Nebraska and Maine do: one vote per Congressional district and two votes for the State at large. That would allow state legislators to gerrymander the Presidential election the same way they’ve gerrymandered Congressional elections. No, the founders didn’t foresee that possibility or do anything to prevent it. We’ve just been lucky. So far.

But put all that aside. The reality is that states today don’t have the separateness the colonies did when they negotiated the terms of the Constitution. Back then, every colony was rural, and had the potential to declare itself a separate country, rather than join the union. Travel was rare. Few people wandered far from their locality.

So, the need for the citizens of a state to act collectively, rather than individually, was far more compelling when the Constitution was being negotiated.

Not so today. One’s state of residence just isn’t that significant. I’ve lived in five different states and DC over the course of my life. My guess is that’s about average. Each time I moved, I had some regrets about leaving friends, but never about losing my identity as a resident of the state I left.

This may be difficult for Arizonans to grasp, because, unlike most states, our major cities are smack dab in the middle of the state. But consider the epicenter of the Trump victory — Pennsylvania. Pennsylvania’s largest city is Philadelphia. That city’s metropolitan area includes pieces of three other states: New Jersey, Delaware and Maryland. Pennsylvanians who live in the Philadelphia metropolitan area have more in common with “Philadelphians” who live in New Jersey or Delaware than they do with “Pennsylvanians” who live in Harrisburg. Every day, residents of the Philadelphia met move from homes in Pennsylvania to homes in Delaware, Maryland and New Jersey, and vice-versa.

So, does it make sense for Philadelphians to vote collectively with the people of Harrisburg, rather than their co-workers and family members who live across the river in New Jersey? Of course not.

And Philadelphia is not the least bit unique in this regard. I remember being in St. Paul on business 20 years ago and, taking a walk over a bridge after dinner, finding myself in Wisconsin. On the other side of the state, a couple Wisconsin counties also are part of the Chicago metropolitan area.

State boundaries have become meaningless in the modern era, something the founding fathers, with all their wisdom, could not foresee. Consequently, the electoral college system they designed for choosing Presidents simply cannot be justified, no matter how much we revere their wisdom.

Ironically, while so many revere the wisdom of the founders when it’s convenient, they refuse to recognize the true wisdom of the founders, who provided methods to amend the Constitution. You see, the foresight of the founders was at its best when they recognized the limitations of their own foresight.

If the founding fathers were brought back tomorrow to reconsider the electoral college in the modern era, does anyone really believe they’d keep it?

The bottom line? When you feel the urge to defer to the wisdom of the founding fathers as a justification for avoiding change, ask yourself “would the founding fathers be deferring to themselves on this one?” Chances are, they wouldn’t.