The Attack on the Electoral College and our Federal Republic

by Gregory Gordon

Collusion is a popular concept these days.  While most journalists and commentators in Big Media have been using the term to refer to an as-yet-unproven Russian agreement with President Donald Trump to alter the results of the 2016 election, there is a brazen effort underway to convince states to collude and alter the outcomes of all future presidential elections.

This movement is called the National Popular Vote Interstate Compact (NPVIC), and as the name implies, it would effectively convert the quadrennial presidential elections into one massive popular vote for the nation’s executive.  States that sign on to the NPVIC pledge to assign all of their electoral votes for president to the winner of the national popular vote; the compact only takes effect when a number of states sufficient to reach 270 electoral votes (the majority of the Electoral College) have joined.

The NPVIC is viewed by many as an end-run around the constitutionally mandated Electoral College, and it arguably represents collusion between several Democrat-leaning states to subvert the Framers’ design for electing the POTUS, without going through the process of formally amending the Constitution.  Indeed, many Democrats have already decided that the Electoral College must go.  Elizabeth Warren recently stated that “we can have national voting, and that means get rid of the Electoral College and every vote counts.”  So far, twelve states plus the District of Columbia have signed on to the NPVIC.

The national-popular-vote enthusiasm blatantly and explicitly stands athwart the Constitution (specifically Article II, Section 1), which calls for each of the states to select their electors to vote for president.  The electors were, of course, supposed to represent the best interests of their own state.  There are several reasons why the Electoral College system was mandated and designed the way it was; these include ensuring that small states have a say in electing the nation’s president and preventing regional factions from taking root.  The Electoral College also has ancillary benefits such as making election fraud more difficult, due to the decentralized nature of the votes and state-by-state unpredictability from one election to the next.

Aside from the Electoral College itself, there are other examples in the Constitution where individual state powers were safeguarded and majority rule was mitigated.  (Even though Alexis de Tocqueville wouldn’t coin the term “tyranny of the majority” until the 1830’s, James Madison noted in Federalist 51 that “if a majority be united by a common interest, the rights of the minority will be insecure.”)  Senators were originally chosen by the state legislatures – not the people – and every state, whether large or small, had equal representation in the Senate.  The Tenth Amendment clearly assigns all powers not explicitly delegated to the federal government to the states, and then to the people.  After all, it was the sovereign states that created the federal government, and in order for the Constitution to be ratified at all, states insisted upon not ceding too much power to this new government.

However, starting with the Civil War and ramping up during the Reconstruction period, things began to change.  The presidency became more powerful, and national imperatives overpowered state sovereignty.

To the great moral benefit of the United States, the Thirteenth Amendment constitutionally abolished slavery in 1865, but the Fourteenth Amendment, ratified in 1868, has been interpreted much more broadly and favorably for the national-government proponents.  The far-reaching interpretations of the Fourteenth Amendment have given rise to concepts such as substantive due process, which Antonin Scalia called a “judicial usurpation,” and they have led to vague rights and privileges being read into the Constitution by the federal courts, often interfering with or overturning state laws.  The Fourteenth Amendment also punitively excluded former Confederate officials from representing the people of their states in the federal government, and some historians such as Tom Woods argue that this amendment was unlawfully ratified.

The movement to reduce state powers and nationalize the government of the United States reached its apotheosis during the Progressive Era.  The Sixteenth Amendment was ratified in 1913, and it allowed for the income tax that would provide the funds for the rapidly growing national Leviathan.  The Seventeenth Amendment, also ratified in 1913, set up the popular election of senators, and the Eighteenth Amendment in 1919 created Prohibition, thus overriding all existing state alcohol laws.

In the wake of the Great Depression, Franklin Roosevelt famously instituted the New Deal, which brought wage mandates, price controls, agricultural regulation and “planning,” new labor laws, and staggering levels of federal government intervention and meddling in the American economy.  In disturbing cases such as Wickard v. Filburn (1942), FDR’s SCOTUS even ruled that a farmer growing wheat for his own consumption could be regulated by the national government under the Constitution’s “interstate commerce” clause.

It wasn’t only Democrats, though, that were fond of growing the power of the federal government and nationalizing functions that constitutionally should fall under state jurisdiction.  President Richard Nixon ushered in massive bureaucracies such as the Environmental Protection Agency (via Executive Order, no less) and the Occupational Safety and Health Administration.  To this day, building materials, drilling permits for oil wells, environmental reviews, safety standards, and construction projects must be approved by unelected bureaucrats in Washington, D.C.

It is impossible to avoid the suffocating reach of the national government, which literally owns and controls more than two-thirds of the land in some Western states.  In 2019, the United States of America are a nation in which the president and government bureaucrats – whom you will never meet — often have a much bigger impact on your life than your governor or local officials.

So, let there be no ambiguity: The movement to transform the United States from a diverse, dynamic federal republic to a homogeneous, nationalized democracy has been underway for a long time.  Democrats want to do away with the Electoral College right now because that institution empowers states and diminishes the influence of the national government, as they see it.  Plus, they believe demographic dominance lies with them, and they don’t plan on losing the popular vote again in the future.