Through the electoral college, Donald Trump will win the presidency even though Hillary Clinton won the popular vote<\/span><\/a>. In response, many people have called to <\/span>abolish the electoral college<\/span><\/a> and have the presidency decided by a popular vote, including several hundred thousand <\/span>MoveOn.org<\/span><\/a> petitioners.<\/span><\/p>\n In contrast, I support the electoral college. Though I would find unobjectionable changes in the way the electoral college is calculated, I generally approve of the electoral college because it is one of the Constitution\u2019s <\/span>accidentally<\/span> great procedural features for deterring the concentration of political power and the resulting abuses of such concentration.<\/span><\/p>\n As described below, in addition to the electoral college, the Constitution’s voting system does an unexpectedly good job of deterring the concentration of political power.<\/span><\/p>\n The Accidental Two-Party System<\/strong><\/p>\n Let’s start with the what makes the Constitution\u2019s voting rules <\/span>accidently<\/span> great.<\/span><\/p>\n At the time of the Constitution’s ratification in the late 1700s, its proponents expected federal power to be restrained by having a wide swath of different Americans in a large republic form many factions. These diverse factions would restrain federal action by hindering consensus. In James Madison’s words in <\/span>Federalist #10<\/span><\/a>:<\/span><\/p>\n “The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.”<\/span><\/blockquote>\n Thus, according to Madison, having a lot of people with diverse interests restrains federal power and protects liberty by deterring the formation of oppressive majorities.<\/span><\/p>\n Since America has consistently had two major political parties instead of dozens of factions, Madison was, in a word, wrong. He overlooked the significance of voting rules. <\/span><\/p>\n When designing the Constitution, its drafters spent considerable time considering who voted when. The Constitution makes the House popularly elected by the people, the Senate appointed by the states, the President indirectly elected through the electoral college, and the judiciary nominated by the President and appointed by the Senate. Due to a skepticism of majorities, the Constitution empowers different people to choose different components of the federal government to protect against majoritarian dangers. The question of <\/span>who<\/span> should decide predominates.<\/span><\/p>\n Yet, the drafters largely overlooked <\/span>how<\/span> those people should be measured. In his significant (but dull) book <\/span>Social Choice and Individual Values<\/span><\/a>, Kenneth Arrow earned himself a Nobel Prize in economics by showing that individuals with rational preferences among multiple choices (i.e., for three choices A, B, and C, individuals who can rationally form a preference of A > B > C) will when aggregated, such as through voting, almost necessarily create collectively irrational social preferences (i.e. an outcome in which, collectively, society decides that choice A > B > C > A > B > C . . .).<\/span><\/p>\n Arrow\u2019s Impossibility Theorem<\/span><\/a> shows that <\/span>how<\/span> collective decisions are measured matters as much or more than <\/span>who<\/span> should be included in the group deciding. <\/span><\/p>\n In other words, the \u201cwill of the people\u201d does not exist independently of the voting rules. Voting rules matter because the measure of “the will of the people” determines collective decisions. <\/span><\/p>\n To have a Madisonian system with many factions that deter majorities, states would need to use a system of <\/span>proportional representation<\/span><\/a> in voting. Under such a rule, a party with about 10% support would receive around 10% of the seats in Congress, and Congress would need to form coalitions with many factions to pass legislation\u2014just as Madison wanted. <\/span><\/p>\n Currently, due to proportional representation, Spain has <\/span>not had a government<\/span><\/a> for almost a year because of the inability to form a coalition. Setting a world record, Belgium with its proportional representation voting system did not have an elected government for <\/span>589 days<\/span><\/a>. Thus, European countries with proportional representation voting systems show how such voting rules can cause Madisonian inhibitions of government. As Madison suggests, a larger, more diverse country with a proportional representation voting system would likely have such restrains more frequently.<\/span><\/p>\n Third party candidates can be \u201cspoiler\u201d candidates because of states\u2019 first-past-the-post voting rules, leading this voting system to create and reinforce two-party systems.<\/span>Throughout America, with the recent exception of Maine which just adopted <\/span>ranked-choice voting<\/span><\/a>, voters elect the Congressperson with the most votes\u2014a <\/span>first-past-the-post voting system<\/span><\/a>. <\/span><\/p>\n According to <\/span>Duverger’s law<\/span><\/a>, basically political science\u2019s only “law”, first-past-the-post voting rules create two party systems because voters who diverge from established parties to vote for more ideologically favorable third parties can cause the election of the established party that they least prefer. So, if a voter votes for Ralph Nader, George Bush may win the election\u2014even though the voter prefers Al Gore to Ralph Nader. Third party candidates can be \u201cspoiler\u201d candidates because of states\u2019 first-past-the-post voting rules, leading this voting system to create and reinforce two-party systems.<\/span><\/p>\n Having underappreciated the significance of voting rules, Madison expected many factions and did not intentionally design the Constitution to restrain the unanticipated two-party system. <\/span><\/p>\n Drunk without Power\u00a0<\/strong><\/p>\n A two-party system poses the danger of one party taking exclusive control and exerting its unrestrained will on the population. Though not preventing this common 19th century occurrence<\/a>, the Constitution’s voting procedures accidentally mitigate this danger through staggered elections.<\/p>\n Under the Constitution, the President is elected every four years, the House every two years, and one-third of the Senate every two years. So, to control the federal government, one of the two parties probably has to be popular without interruption for at least four years\u2014at least two election cycles\u2014across both the population and individual states. <\/span><\/p>\n Even in a presidential year, a popular party that seized the House and Presidency would likely not secure the Senate because only one-third of it gets elected at a time. With the <\/span>schizophrenia<\/span><\/a> of American voters, the federal government now tends to be split between two parties and, when controlled by one party, not remain in its control too long. Since new legislation requires the approval of the House, Senate, and Presidency, a different party only has to hold one of these entities to create gridlock and restrain federal power.<\/span><\/p>\n Let me reemphasize the accident. Why is the House elected every two years? Among the rationales, during the Constitution\u2019s ratification, its drafters feared a standing army. Thus, in <\/span>Article I Section 8<\/span><\/a> of the Constitution, Congress received the qualified power “To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years”. By setting a two-year term limit to match the House\u2019s term, the Constitution empowers the American people to defund and end dangerous uses of the army or ongoing wars. Voters only have to elect anti-war politicians in one branch of the government to restrain the army through the House\u2019s power of the purse.<\/span><\/p>\n In American history, this neat idea has <\/span>never<\/span> been used to restrict the army in such a way. In part, this constitutional protection has been overlooked because a standing army is mostly a post-1945 phenomenon and, since 1945, Congress has largely ceded its authority over the army to the President. Though the House could defund the army without the President or Senate through its control over the army’s purse, this intentional attempt to restrain federal power has, at least so far, not notably done so. <\/span><\/p>\n Though not fulfilling this intentional role, having House elections every two years has unintentionally restrained the federal government within a two-party system through gridlock. Every two years, voters can deprive any political party with concentrated power of its power by switching the House to a different party. This disperses political power because <\/span>divided government<\/span><\/a> empowers one party to block another party\u2019s agenda, making the House\u2019s two year terms a tool for dispersing political power.<\/span><\/p>\n Most recently, this happened in 2010 with Republicans, jettisoned by Tea Party candidates, snatching the <\/span>House but neither the Senate<\/span><\/a>, in which only 1\/3 was elected, nor the President, which had no election. Thus, House elections deprived Democrats of their federal power without concentrating power among Republicans, largely disabling both Democrats and Republicans for the next six years. Some commentators named the resulting gridlocked Congresses the \u201c<\/span>Worst Congress Ever<\/span><\/a>\u201d due to the inaction\u2013-apparently forgetting that Congress has <\/span>passed<\/span><\/a> many<\/span><\/a>, <\/span>terrible<\/span><\/a>, <\/span>horrible<\/span><\/a>, <\/span>no<\/span><\/a> good<\/span><\/a>, <\/span>very<\/span><\/a> bad<\/span><\/a> laws<\/span><\/a> in American history, including <\/span>in<\/span><\/a> recent<\/span><\/a> memory<\/span><\/a>, when the political system has not restrained the federal government in such a way.<\/span><\/p>\n Similarly, with Republicans now poised to hold <\/span>the House, Senate, and Presidency<\/span><\/a>, the House\u2019s two year terms give Democrats a quick opportunity to disperse Republican power in 2018. <\/span><\/p>\n Overall, the staggering of elections in a two-party system both deters the concentration of political power and facilitates the dispersion of concentrated political power, accidentally restraining federal power in a two-party system in a similar way to Madisonian factions.<\/span><\/p>\n The Supreme Court\u2019s Lifetime Appointments<\/strong><\/p>\n In addition to election voting rules, the process for judicial appointments also partially defends against the two-party system. <\/span><\/p>\n The Constitution sought to disperse political power by having the President nominate and the Senate confirm federal judges for lifetime appointments. When different parties control the Presidency and Senate, this division of power somewhat disperses concentrated political power by promoting the nomination and confirmation of <\/span>more moderate<\/span><\/a>, generally acceptable nominees who, whatever their other merits or demerits, do not seek to concentrate one party\u2019s political power.<\/span><\/p>\n More significantly, the lifetime appointments designed to insulate the judiciary from the political process inadvertently function like staggered elections, deterring one party from concentrating its control over all three branches. A typical two-term President will appoint t<\/span>hree or so Supreme Court Justices<\/span><\/a>, preventing a single President from appointing a full majority of the Supreme Court. <\/span><\/p>\n When one party in power appoints Supreme Court Justices and then loses its power, those Justices remain in place to restrain future administrations with different ideological predilections. For a party to appoint anew a majority of the Supreme Court’s Justices, the political party would likely need to retain both the Presidency and the Senate uninterrupted for at least ten or so years – making the concentration of political power in one party difficult and restraining potential abuses within a two-party system.<\/span><\/p>\n An intentional rule for dispersing political power in a two-party system might have taken the form of nine Supreme Court Justices with 18 year terms\u2014or 11 with 22 year terms or something similar. Such a system would intentionally disperse the concentration of political power by capping the number of Supreme Court Justices a single, two-term President could appoint at less than a majority. A lifetime appointment unintentionally functions similarly. The Constitution creates a federal government that disperses political power through staggered elections and judicial appointments that hinder one party from controlling the House, Senate, Presidency, and Supreme Court. <\/span><\/p>\n FDR\u2019s Concentration (Camps) of Political Power<\/strong><\/p>\n In the 1930s and 1940s, under President Franklin D. Roosevelt, the Constitutional procedures that accidentally restrain the two-party system failed badly, showing by contrast the significance of these restraints.<\/span><\/p>\n Beginning in 1933 in the depths of the great depression, Roosevelt became President with a Democratic House and Senate. The Democratic party retained control of the House, Senate, and Presidency <\/span>from 1933 through his death in 1945<\/span><\/a>, irrespective of <\/span>large losses in 1938.<\/span><\/a> Over this time, one party controlled the federal government and one man controlled the presidency for twelve consecutive years. <\/span><\/p>\n As <\/span>historians<\/span><\/a> recount, his one party rule initially faced a single institutional obstacle\u2014a Supreme Court willing to declare his <\/span>legislation<\/span><\/a> unconstitutional<\/span><\/a>. In <\/span>1937<\/span><\/a>, he threatened to pack the Supreme Court, but Congress rejected his plan. Though many people at the time believed that Justice Owen Roberts changed his vote due to Roosevelt\u2019s court-packing plan, the so-called \u201c<\/span>switch in time that saved nine<\/span><\/a>\u201d, Justice Roberts changed his vote before the announcement of the court-packing plan, and the Supreme Court just publicly announced his switch after Roosevelt\u2019s affront to separation of powers. <\/span><\/p>\n Regardless, historians fixating on Roosevelt\u2019s intentional court-packing plan overlook the gradual and dangerous concentration of political power that empowered Roosevelt all the same. By his fourth term\u2019s end, Roosevelt had appointed eight of the nine Supreme Court Justices\u2014completing the Democratic party\u2019s concentration of political power. By retaining power for a dozen years, Roosevelt\u2019s uninterrupted control outlasted the staggered election process and gave Democrats control of the House, Senate, Presidency, and Supreme Court.<\/span><\/p>\n With his uncontested power, Roosevelt issued <\/span>Executive Order 9066<\/span><\/a> and interned over <\/span>110,000 Japanese Americans<\/span><\/a>. He signed Public Law 503 to enforce his executive order after his Democratic party discussed it for an hour in the Senate and a half hour in the House. And the Democratically-appointed Supreme Court affirmed the internment camps\u2019 constitutionality by a 6-3 margin in <\/span>Korematsu v. United States<\/span><\/a>.<\/span><\/p>\n Many constitutional law scholars express dismay that the decision in Korematsu upheld racial discrimination against Japanese Americans using a <\/span>strict scrutiny<\/span><\/a> standard of judicial review because strict scrutiny usually protects minorities. They feel this shock partially because constitutional law textbooks tend (<\/span>with few exceptions<\/span><\/a>) to be organized by topic instead of in chronological order. Whereas organizing by topic perpetuates the <\/span>myth of the rule of law<\/span><\/a> by emphasizing mangled legal arguments, a chronological and institutional focus much better explains <\/span>terrible Supreme Court decisions<\/span><\/a>. <\/span><\/p>\n Focusing on the Justices\u2019 identities instead of their legal arguments, the only remaining Justice on the Supreme Court appointed before Roosevelt\u2019s presidency, the above-mentioned Justice Owens, voted against Korematsu as a lasting hindrance to the concentration of federal power by one party. <\/span><\/p>\n America will hopefully never have to experience again the unusual, dangerous degree of political power exercised by President Roosevelt.<\/span>Of the eight Supreme Court Justices Roosevelt appointed and his party confirmed, Justices that Roosevelt intentionally nominated to rule in favor of the Democrats\u2019 federal agenda, six of the eight\u2014or 75% of them\u2014sided with Roosevelt. Korematsu and the internment of Japanese Americans is the culmination of a dozen consecutive years of one-party rule.<\/span><\/p>\n Many people today fear that Donald Trump will do terrible things as President, as do I. Fortunately, though, the <\/span>twenty-second amendment<\/span><\/a> now limits the President to two terms, a particularly useful institutional restraint on the concentration of political power. Due to it, despite <\/span>his desire to mimic Roosevelt<\/span><\/a>, Trump likely does not have enough time to do anything as \u201cgreat\u201d as President Roosevelt\u2019s mass internment of Japanese (and <\/span>Italian<\/span><\/a> and <\/span>German<\/span><\/a>) Americans. <\/span><\/p>\n Even if Trump retains a Republican Presidency, House, and Senate for eight years despite the relative ease of changing the House\u2019s party control, the eight-year limit likely prevents him from also controlling the Supreme Court with its more staggered appointment process. With this limitation, America will hopefully never have to experience again the unusual, dangerous degree of political power exercised by President Roosevelt\u2014no matter how much Trump may seek to <\/span>make America great again<\/span><\/a>.<\/span><\/p>\n The Electoral College\u2019s Protection Against Political Elites<\/strong> <\/span><\/p>\n