If “We, the People” of the present United States were going to frame a government, would we really choose our present structure? Is it the best method for obtaining a constitutional goal–consent of the governed? We certainly would want to re-consider some key structural elements that can prevent the will of the People from prevailing. For example, we would think hard about the Electoral College.

While most often our president has been the person who has garnered the greatest number of votes, we, as has been demonstrated twice in the last generation, have no guarantee of that. Perhaps “We, the People” of today would see the electoral college as a result of understandable compromises that were necessary for the adoption of the Constitution in 1787, but we might now prefer the direct election of the President where every vote counts equally. This would produce a huge change in our presidential elections, and not just because the smaller states currently have a greater proportional representation in the Electoral College than the larger states or because sometimes the candidate with the most votes does not get inaugurated. The Electoral College in effect disenfranchises voters throughout the country.

I vote in New York, but my vote for president is, in a practical sense, meaningless. Last election, I could be confident that no matter whether I voted or not, New York’s electoral votes would go to Hillary Clinton because she was certain to get a majority of the state’s vote. The same can be said for California and other states. Similarly, voters in Texas and Alabama were casting meaningless ballots. Whether Trump or Clinton got more or fewer votes in most states simply did not matter. Voters in these states did not have much incentive to vote for President. Instead, the truly important voters throughout the country were in the “swing” states. Each swing-state voter, and non-voter, in effect counted much more than those in the safe states. When one person’s vote counts more than another’s, do we really have a government of the People?

This is not said because I thought Clinton should have won because she garnered most votes. No one should assume that if we had had the direct election of the President that Clinton would have been inaugurated. We can’t know that. With a direct election, all voters throughout the country would have had an equal incentive to vote because all votes would have mattered equally. An additional 50,000 votes for Trump or Clinton in New York or California or Texas would have changed nothing, but in a direct election, each of those votes would have mattered as much as the votes mattered in Wisconsin and Michigan. In all likelihood, with a direct election of the president, more people would vote than do now.

We also can’t assume that Clinton would have won in 2016 with a direct election because direct elections also would make campaigns different. If each vote in Alabama would matter as much as each vote did in Michigan, the candidates would have had to, shall we say, pander to every voter in Alabama as much as was done to get the Michigan votes. With equal appeals to every voter no matter the happenstance of residence, with an increased number of citizens voting, and with the majority determining the outcome, we might conclude that a direct election would more likely produce the consent of the governed than does the Electoral College system.

Today, in any presidential election, even when the candidate with most votes wins, can we really say that “We, the People of the United States” of today have chosen our national leader?

We have an electoral system chosen by the People of 1787, and those eighteenth century voters chose an amendment process that makes it almost impossible for the People of today to change our Electoral College. There is little point in even debating whether it is the best, or even a good, method of selecting a president. “We, the People United States” of today don’t really have a choice in this. Instead, the choices of the People of 1787 control us. If the People are sovereign, it is the People of 1787, not the People of today, who are the sovereigns on this matter.

(Concluded on July 20)

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