A constitutional accident waiting to happen.

• Jurisdiction: United States
• Author: Amar, Akhil Reed
• Date: 22 June 1995

In the category, Most Mistaken Part of the Current Constitution, I nominate the electoral college. The ingenious scheme of presidential selection set up by Article II and refined by the Twelfth Amendment was a brilliant eighteenth century invention that makes no sense today. Our system of selecting Presidents is a constitutional accident waiting to happen.

I nominate the electoral college in part because some constitutional scholars might tend to overlook its flaws. Constitutional Law courses typically stress courts, cases, and clauses that get litigated. Despite the vast constitutional significance of the Presidency, it is woefully understudied in law schools today. (It gets far more attention in political science departments--a vestige of the early twentieth century world in which academic study of the Constitution generally nestled in political science, while law schools stressed "private law" like contracts and torts.) Constitutional Law scholars may likewise prefer to focus on clauses that can be "fixed" by creative judicial interpretation. The electoral college can be fixed only by a formal amendment, and talk of constitutional amendment scares many law professors.

But amendment is exactly what is called for...