The Constitution lets the electoral college choose the winner. They should choose Clinton.By Lawrence Lessig
Nov 24 2016
Lawrence Lessig is a professor at Harvard Law School and the author of “Republic, Lost: Version 2.0.” In 2015, he was a candidate in the Democratic presidential primary.
Conventional wisdom tells us that the electoral college requires that the person who lost the popular vote this year must nonetheless become our president. That view is an insult to our framers. It is compelled by nothing in our Constitution. It should be rejected by anyone with any understanding of our democratic traditions — most important, the electors themselves.
The framers believed, as Alexander Hamilton put it, that “the sense of the people should operate in the choice of the [president].” But no nation had ever tried that idea before. So the framers created a safety valve on the people’s choice. Like a judge reviewing a jury verdict, where the people voted, the electoral college was intended to confirm — or not — the people’s choice. Electors were to apply, in Hamilton’s words, “a judicious combination of all the reasons and inducements which were proper to govern their choice” — and then decide. The Constitution says nothing about “winner take all.” It says nothing to suggest that electors’ freedom should be constrained in any way. Instead, their wisdom — about whether to overrule “the people” or not — was to be free of political control yet guided by democratic values. They were to be citizens exercising judgment, not cogs turning a wheel.
Many think we should abolish the electoral college. I’m not convinced that we should. Properly understood, the electors can serve an important function. What if the people elect a Manchurian candidate? Or a child rapist? What if evidence of massive fraud pervades a close election? It is a useful thing to have a body confirm the results of a democratic election — so long as that body exercises its power reflectively and conservatively. Rarely — if ever — should it veto the people’s choice. And if it does, it needs a very good reason.
So, do the electors in 2016 have such a reason?
Only twice in our past has the electoral college selected a president against the will of the people — once in the 19th century and once on the cusp of the 21st. (In 1824, it was Congress that decided the election for John Quincy Adams; likewise in 1876, it was Congress that gave disputed electoral college votes to Rutherford B. Hayes.)