Electoral College Book Talk: Let the People Pick the President by Jesse Wegman

The Feerick Center for Social Justice presents Electoral College Book Talk: Let the People Pick the President by Jesse Wegman October 20, 2020 12:30 - 2 p.m. EDT Zoom Webinar CLE COURSE MATERIALS Table of Contents 1. Speaker Biographies (view in document) 2. CLE Materials Electoral College Book Talk John D. Feerick, The Electoral College: Why It Was Created, ABA Journal (March 1968) (view in document) "Electing the President: Recommendations of the American Bar Association's Commission on Electoral College Reform" (March 1967) (view in document) Jesse Wegman, What if We Just Counted Up All the Votes for President and Saw Who Won?, N.Y. Times (Mar. 13, 2020) (view in document) Jesse Wegman, The Electoral College Will Destroy America, N.Y. Times (Sept. 8, 2020) (view in document) Fordham Law Democracy Clinic, "Why the House of Representatives Must Be Expanded and How Today's Congress Can Make It Happen" (January 2020) (view in document) Electoral College Book Talk Speaker Bios John D. Feerick is dean emeritus and the Sidney C. Norris Professor of Law in Public Service at Fordham University School of Law. After playing a key role in framing the Constitution’s 25th Amendment, he worked for over a decade with the American Bar Association and members of Congress on abolishing the Electoral College. As staff advisor to the ABA’s Commission on Electoral College Reform, he wrote the first draft of the commission’s report, “Electing the President.” He also drafted a proposed constitutional amendment that embodied the ABA's recommendations. In 1968, the Fordham Law Review published his article The Electoral College: Why It Ought to be Abolished. Jesse Wegman is a member of the New York Times editorial board, writing editorials on the Supreme Court and legal affairs. His book “Let the People Pick the President: The Case for Abolishing the Electoral College” was published in March 2020 by St. Martin’s Press. He graduated from New York University School of Law in 2005. John Rogan is a Visiting Clinical Professor at Fordham University School of Law. At Fordham Law, Professor Rogan taught a clinic on Presidential Succession and seminars on the Electoral College and the Constitutional Convention. For the past two years, he co-taught the Democracy Clinic, which developed reports on reforms to the country’s institutions. The Electoral College: Why It Was Created by John D. Feerick Mr. Feerick traces the development of our electoral college system for electing the President through the days of debate and vacillation as to the manner of selecting the Chief Executive which took place at the Constitutional Convention. He presents the arguments raised and the alternatives suggested then and observes that objection to legislative election of the President on the one hand and doubt about the capability of the people for choosing the Chief Executive on the other led to settlement on the electoral college system. CONGRESS IS NOW engaged in a was the largest city, with about 40,000 tion of the total population. Each major study of our system of electing people. Virginia, with close to 700,000 of the thirteen states had a chief the President. It may conclude that the inhabitants, was the most populous executive, a legislature and a judiciary. 2 electoral college should be retained as state. A bicameral legislature existed in all is, or modified, or abolished in favor In the America of 1787 the forest but two of the states. 4 In eight states of direct popular vote. In considering was the dominant land feature and the executive was chosen by the legisla- the question of reform, it is helpful to agriculture was the principal means of ture.5 In four of the five where the review the intent of the framers of the livelihood. Industry existed on a small- governor was elected directly, he was Constitution. This article attempts to scale handicraft basis. There was an chosen by the legislature if he did not 6 trace the development of the electoral absence of power-driven machinery, obtain a majority of the popular vote. college provision at the Constitutional books were scarce, schools and libraries At the national level, the Articles of Convention and to describe the lines of were few, and poverty and illiteracy Confederation, which had become effec- thinking that led to its adoption. were comlmon. ttorseback, wagon, tive on March 1, 1781, constituted the When the founding fathers met in stagecoach, boat and foot were the basic charter of government. They Philadelphia in 1787, the United States main modes of transportation. But, vested the authority of the government "roads were extended from the Atlantic to the Mis- bad. bridges few, ferries in a Congress in which each state sissippi and from the Great Lakes leaky, rivers whimsical, stagecoaches had a single vote. The assent of nine almost to the Gulf of Mexico, embrac- cranky, and inns ill-kept". 3 To go by ing approximately 880,000 square stagecoach from Boston to New York 1. These statistics are based on the 1790 miles. The country's population was was a journey of from three to six census U.S. BUREAU OF THE CENSUS, HISTORICAL close to 4,000,000 (excluding In- days; from New York to Philadelphia, STATISTICS OF THE UNITED STATES, COLONIAL TiMsS TO 1957 7-16 (1960). dians), of which almost 700,000 were two or more days. In the South trans- 2. Next was Pennsylvania (434,373); then North Carolina (393,751); Massachusetts (378,- Negro slaves (90 per cent living in the portation was even poorer since roads 787); New York (340,120); Maryland (319,728); South) and more than 2,300,000 were and stagecoaches were almost nonex- South Carolina (249,073); Connecticut (237,- 1 946); New Jersey (184,139); New Hampshire white women and children. Most of istent. The mail and word-of-mouth (141,885); Georgia (82,548); Rhode Island (68,825); and Delaware (59,096)- the population was concentrated near were the principal channels of com- 3. ROSSITER, 1787; THE GRANtDCONTENTION 25 [he coast. Approximately 97 per cent of (1966). munication. Newspapers were usually 4. Georgia became bicameral in 1789 and the people lived in rural areas-on distributed on a weekly basis, had Pennsylvania in 1790. 5. He was elected by the people in Con farms and plantations and in log limited circulations and contained necticut, Massachusetts, New Hampshire, New York and Rhode Island. cabins and shacks. About 100,000 peo- mostly local news. 6. In New Hampshire and Massachusetts the ple lived beyond the Appalachian In pre-Constitution house of representatives nominated two from America politi- the four highest candidates, and the senate Mountains. Only five cities had a cal parties did not exist, and the right selected the governor from the two. In Con- necticut and Rhode Island the legislature population over 10,000. Philadelphia to vote was limited to a small frac- selected the governor. March, 1968 • Vol. 54 249 The Electoral College of the thirteen states was required for house legislature and a judiciary. Both ernment was not to he sovereign. important decisions and the unanimous houses of the legislature were to be There was to be a unicameral legis- consent of all thirteen was necessary to apportioned according to population. lature in which each state would have amend the articles. Congress had no The lower house was to be elected by one vote. The plan called for a power to tax, to regulate domestic and the people and the upper house was to supreme judiciary and a plural execu- foreign commerce or to enforce its be chosen by the lower from persons tive elected by Congress. The executive decisions. Moreover, there wag no na- nominated by the state legislatures. was to be ineligible for a second term tional judiciary or chief executive. The The executive, whose term was not and removable by Congress on appli- articles merely permitted Congress to specified, was to be chosen by Con- cation of a majority of the executives create such "committees and civil of- gress and not eligible for re-election. of the several states. ficers as may be necessary for manag- The plan did not specify whether the During the course of the intense ing tile general offices of the United executive should be single or plural. debate which followed on whether the States under their direction". Although Another plan of government was in- convention should proceed with the the Congress was empowered to appoint troduced the same day by Charles Virginia or New Jersey Plan, Alexan- one of its members to preside over it Pinekney of South Carolina. Although der Hamilton of New York sketched as "President", he was little more than the original of this plan has never his plan of government on June 18. It a presiding officer, serving for no more been located, it is believed to have provided for an executive chosen for than one term of one year in any contained similar provisions regarding life by electors elected by the people three years. the executive. 9 in districts. Hamilton's plan was quiet- On February 21, 1787. the Con- ly received by the delegates and was gress decided that a constitutional Various Plans for never formally considered by the Con- convention should be held for the Choosing the President vention. sole and express purpose of revis- On May 31 the convention resolved On June 19 the convention rejected ing the articles. Thereupon, every itself into a committee of the whole to the New Jersey Plan and decided to state appointed delegates to attend, ex- discuss the Virginia Plan point by proceed with discussion of the cept Rhode Island, which opposed the point.

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