Commentary: The constitutional crisis that awaits
By Jack Rakove If Lin-Manuel Miranda ever does a second edition of his smash hip-hop musical Hamilton, he may want to develop a new number based on Federalist No. 68.
By Jack Rakove
If Lin-Manuel Miranda ever does a second edition of his smash hip-hop musical Hamilton, he may want to develop a new number based on Federalist No. 68.
This was hardly Alexander Hamilton's most important contribution to The Federalist, the essays he, James Madison, and John Jay drafted to support the ratification of the Constitution in 1787-88. But for the past five weeks, Federalist 68 has sat atop our own charts of oldies-but-goodies from the founding era, for one simple reason. A small group of presidential electors (who call themselves Hamilton Electors) and a few scholars cite this essay to argue that the Electoral College was designed to act as an independent body that could overrule the vote of the people and save the republic from an obviously mistaken choice.
That was the rather fantastic scenario they had hoped would unfold Monday, when the electors gathered in their separate states to cast their ballots.
That interpretation, desperately beguiling as it seemed, rested on a doubtful reading of Hamilton's text and a faulty interpretation of the early history of the Electoral College. The essay we really ought to be reading, is Federalist 65, in which Hamilton discusses the idea of presidential impeachment.
In Federalist 68, Hamilton did proclaim it a "moral certainty, that the office of president, will seldom fall to the lot of any man, who is not in an eminent degree endowed with the requisite qualifications."
That proposition is now destined to meet its most severe test ever. There have been many mediocre presidents, and a few genuine tragedies, like Andrew Johnson and perhaps James Buchanan, the two failures who bracket Abraham Lincoln. But Donald Trump occupies his own unique category of potential incompetence, even as he tells us just how "smart" he is, without providing requisite evidence (like his tax returns).
But nowhere in Federalist 68 did Hamilton explicitly envision the situation that now confronts us, precisely because no one in 1787-88 could have imagined how the presidential electoral system would operate. That is the first truth that Americans have to understand about this mysterious institution. The Constitutional Convention adopted it, not because it was the most attractive way of electing a president, but because it seemed the least unattractive option.
In the "tedious and reiterated discussions" (quoting James Madison) that produced the presidency, the framers of the Constitution formed decisive objections against two more obvious modes of election. Popular election seemed a bad bet, not because they worried that the people would follow the first Trump-like demagogue to canter their way, but because they believed it would prove difficult to form anything resembling a majority in the highly decentralized and provincial American electorate.
Election by Congress would solve that problem, since its members would be the nation's highly informed political elite. But the framers wanted the president to be independent of Congress, to check its "factious impulses." They also thought that the promise of re-election would provide an incentive for the best behavior (and this, in fact, was a truly Hamiltonian notion). An election by Congress would undermine both goals.
As the framers cobbled together the Electoral College in their closing days of debate, they built upon the political compromises they had already reached. The large states would have the advantage in identifying candidates in the first round of the election. But should the electors fail to produce a majority, which many framers expected to happen quite often, the election would go to the House of Representatives, voting by states, which would protect the interests of the less populous states. That was a truly terrible decision, because the interests of voters in small states do not differ from the preferences of similar voters in large states - but we're stuck with it.
So far so good. But the framers left other critical questions open. Who would the electors be? How would they be appointed? Could they be limited in their choice, or bound to follow the preferences of the voters? All of these questions were left to the state legislatures to resolve, and it took a number of elections to reach the equilibrium we now occupy, where a winner-take-all statewide vote decides 533 of our 538 electors, and laws in numerous states bind the behavior of electors.
So long as George Washington wanted to be president, it did not matter what rules were followed. As soon as he announced his retirement to Mount Vernon in 1796, our first two political parties, the Federalists and Republicans - which were essentially formed to support or oppose Hamilton's policies as our first secretary of the treasury - sprang into action.
They immediately demonstrated two things.
First, contrary to the expectations of 1787-88, a popular election in a single national constituency would produce a decisive victory. In 1796 and 1800, voters proved perfectly capable of choosing between John Adams and Thomas Jefferson.
Second, the electors immediately revealed their true political identities. From the start they always were, and have ever after remained, the loyal agents of their parties. They have never acted as a body of disinterested, highly informed, deliberative citizens. Ironically, no one worked harder to get these electors to serve these interests than the guiding genius of the Federalist Party, Alexander Hamilton, mostly because he despised John Adams and wanted to displace him as party leader.
To have asked today's electors to violate these norms, even when we risked elevating a potential incompetent to the presidency and ignoring Hillary Clinton's significant plurality in the popular vote, posed too grave a risk to the constitutional system. Instead, I would place my constitutional bets elsewhere.
Though they will not say it (yet), we can safely intuit that Republican congressmen, in their heart of hearts, are already wondering about presidential impeachment. How can they possibly avoid that thought? After all, Republicans lost one president (Trump's supposed idol, Richard Nixon) to a near-impeachment in 1974, and when they impeached Bill Clinton in 1998, they lowered the bar of "high crimes and misdemeanors" as far as it could possibly go.
Trump will be the gift that keeps on giving, and by the standards the Republicans set against Clinton, if he performs as badly as so many of us expect he will, Vice President Mike Pence will become a very attractive alternative. And Republicans know this already.
So Miranda should forget about Federalist 68 - it's Hamilton's Federalist 65, with its discussion of impeachment, that we'll want to study.
Jack Rakove teaches history and political science at Stanford University. His book, "Original Meanings: Politics and Ideas in the Making of the Constitution," earned the 1997 Pulitzer Prize in History. He wrote this for the Chicago Tribune.