Electoral Votes, the Senate, and Article V: How the Architecture of the Constitution Promotes Federalism and Government by Consensus

• Publication year: 2021
• Citation: Vol. 96

96 Nebraska L. Rev. 799. Electoral Votes, the Senate, and Article V: How the Architecture of the Constitution Promotes Federalism and Government by Consensus

Electoral Votes, the Senate, and Article V: How the Architecture of the Constitution Promotes Federalism and Government by Consensus

Richard F. Duncan(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 800

II. Constitutional Architecture and Federalism by Consensus ............................................ 802
A. The Great Compromise and Equal Representation in the Senate ........................................ 804
B. The Great Compromise 2.0: The Electoral System for the Presidency ................................. 805
C. Article V and Constitutional Change by Consensus in the States ...................................... 807

III. The Contemporary Relevance of the Constitutional "Solar System" Protecting Federalism ................. 809
A. The United States Senate: Veto Points and Federalism ........................................ 811
B. The Electoral Vote System, Democracy, and Federalism ........................................ 814
C. The Electoral System Works Well: The 2016 Presidential Election as a Case in Point ........... 819
D. A Narrative from the Classroom: Is the Constitution's Structural Architecture Archaic and Obsolete? ......................................... 821

IV. Conclusion ............................................ 824

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"Federalism was the means and price of the formation of the Union."(fn1)

I. INTRODUCTION

The government created by the U.S. Constitution is a federal republic or a federation of states, not a unitary national democracy. Federalism-and its protection of the political liberties of we the people of the several states-is secured in three distinct ways by the Constitution: First, the Constitution preserves the states as sovereign political entities(fn2) and binds only those states that chose to ratify the Constitution.(fn3) Second, the Constitution limits national power by enumeration and specifically reserves to the states and we the people of the several states all "powers not delegated to the United States by the Constitution."(fn4) Third, the Constitution "[gives] the states a role of great importance in the composition and selection of the central government."(fn5) The primary focus of this Article is on this third point concerning the structural provisions of the Constitution which give to the states-and to we the people of the several states-the power to protect liberty and local self-government by controlling the selection of those who would wield national authority.

Elections in the United States are federally democratic as opposed to nationally democratic. We have no national elections in the United States. Every election for national office is held in the states. Congress is elected in districts in the states, and members represent not America but the citizens who reside in their individual districts in their particular states.(fn6) Senators are elected in the states, and each senator represents the citizens of his or her particular state.(fn7) Moreover, there is no national popular election for President; rather, there are fifty separate state elections for the Presidential Electors from

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each state.(fn8) Thus, there is no such thing under the Constitution as a national "popular vote" for President. When members of the media write stories about the "popular vote," they arrive at this number only by adding up the votes of the state elections.(fn9) However, since the President is not elected in a national election but by fifty-one separate elections in the fifty states plus the District of Columbia, there is no national "popular vote" for President.

The purpose of this Article is to consider how the structural architecture of the Constitution delicately balances the incredible power of a central government wielding the sword of the Supremacy Clause(fn10) against the continued sovereignty of the states and the liberty of we the people of the several states. These "political safeguards"(fn11) of the Constitution not only protect us from the danger of too much concentrated national power being imposed on the people and the states, but they also balance the relative power of large-population, medium-population, and small-population states, as well as of states that may not share the political and cultural values of economically and culturally powerful states.

The genius of the Constitution is that it created a national government which, although supreme within its enumerated powers, is checked by the interests and liberties of we the people of the states by the requirement of a strong consensus among the states with respect to the selection of all three branches of the national government. Indeed, even the text of the Constitution itself is law only because it has been ratified in the states, with each state having an equal vote.(fn12)

The primary focus of this Article will be to attempt to understand how the electoral vote system for the Presidency, the structure of representation in the U.S. Senate, and the ratification process of Article V protect federalism and the rights, interests, and liberties of we the people of the several states. This Article argues that these political guardrails are not obsolete appendages of the eighteenth century but

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are as-or more-important today in our coast-to-coast, pluralistic, diverse, and hopelessly divided states of America.(fn13)

II. CONSTITUTIONAL ARCHITECTURE AND FEDERALISM BY CONSENSUS

The U.S. Constitution was conceived and negotiated under the shadow of the Supremacy Clause.(fn14) Going back to 1787, when the Constitutional Convention was getting underway, there were thirteen sovereign states, some of which were large-population states, some of which were medium, and some of which were small. And the people in these states were asked to ratify a Constitution pursuant to which they would yield some of their sovereignty to a new national government under a Supremacy Clause that makes clear that laws enacted by the national government "shall be the supreme Law of the land."(fn15)

Although the thirteen states were already loosely joined together under the Articles of Confederation, it was obvious that the Articles were incapable of creating a true nation of united, sovereign states. Indeed, "barely a decade after declaring independence, nearly all Americans agreed that the system under the Articles was failing. The Congress, lacking any true powers, could accomplish next to nothing, and the states squabbled like so many petty fiefdoms."(fn16) With the young nation "on the verge of collapse," the Constitutional Convention was called "out of a sense of urgency and desperation."(fn17)

There were many fundamental differences and disagreements among the colonies that became the thirteen original states.(fn18) However, perhaps the most crucial difference among the states at the Con-

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vention was the issue of "how to apportion representation in the national legislature" among the large-population and small-population states.(fn19) The large-population states, of course, favored "population-based representation in Congress."(fn20) However, with the prospect of a much more powerful central government being created by the Constitution, other states were legitimately concerned about "the possible hegemony of large states in popular elections."(fn21) These latter states wished to be "armed with some power of self-defense"(fn22) against the larger states and argued that "an equal vote in each state was essential to the federal idea and was founded in justice and freedom."(fn23)

These fundamental differences between the large and small states concerning representation in Congress nearly caused the enterprise of the Constitutional Convention to fail.(fn24) For example, James Madison, from the large-population state of Virginia, argued that a national majority ought to have power to rule and "insisted that anything other than a population-based apportionment would be 'confessedly unjust.'"(fn25) However, the small states "remained insistent upon securing equal state representation in at least one house of Congress, and they threatened to abandon the convention-and, if necessary, the union-rather than relinquish their position."(fn26) The intensity of the debate is captured dramatically by the passionate rhetoric of Gunning Bedford, the delegate from tiny Delaware. Bedford responded to charges that the small states were being unreasonable by stating that the large states were seeking "an enormous and monstrous influence."(fn27) Star-

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ing directly at the delegates from the large-population states, he continued:

[T]hey [the large states] insist that although the powers of the general government will be increased, yet it will be for the good of the whole; and although the three great states form nearly a majority of the people of America, they will never hurt or injure the lesser states. I do not, gentlemen, trust you.(fn28)

A. The Great Compromise and Equal Representation in the Senate

As John Dickinson of Delaware had predicted during the early days of the Convention, the great debate between the larger states and the smaller states resulted in a "mutual concession."(fn29) The Great Compromise of 1787-also known as the Connecticut Compromise because it was proposed by Roger Sherman of Connecticut(fn30) -was adopted after "a month of anguished deliberations."(fn31) Under this Compromise, the U.S. Congress was created as a bicameral legislature with one house-the House of Representatives-apportioned by population(fn32) and the second house-the Senate-composed of two senators from each state, with "each Senator having one vote."(fn33) Moreover, the Convention adopted an additional protection for the small...