Concurrent Majorities and the Electoral College*
All through our system we find majorities at work, but they have to be at
work simultaneously. John C. Calhoun referred to them as concurrent majorities,
and while he often spoke only of the States and the Federal governments, he
perceived a self-evident property of our constitutional arrangements to be found
everywhere. The concurrent majority is required between the House of
Representatives, based upon the direct election of the people, and a majority in
the U.S. Senate, Members of which at that time were indirectly elected through
the State legislatures and to this day represents the States and the people of
the several States, regardless of their actual numbers. It is a majority of the
States which counts in this body, not the majority of the population, per se.
Concurrent majorities are also required between sufficient majorities in both
Houses of Congress and the Presidency to enact a law, and the President himself
comes to office by having achieved a majority of the electoral votes cast. The
power subsequently evolved, but clearly anticipated by the framers -- and I
think this is settled -- that the Supreme Court could review the acts of the
Congress and the President in their concurrent majorities, and the majority of
the court could judge upon constitutionality.
This is a pervasive and understood principle of the Constitution thought to be
-- and who would argue that history has not supported that expectation --
learned from history. And of all these majorities, none was more subtle or more
central to their thinking than the majorities required to elect a President.
The electoral college requires the assembly of consent -- again, concurrent majority -- in one part of the country and another part of the country, and yet another part, all defined in terms of several States. It has as its extraordinary ability the formation of consensus as between widely differing regions, political purposes and styles, and political agendas. It has as its purpose and function the narrowing of differences, a narrowing which is repeatedly to be encountered in the narrow range of votes as between the parties in Presidential elections.
[To change to a direct election system, we would see that on election day] as the undifferentiated votes mounted up, the pressures would be on the Mountain States and then the coastal States and the island State, to get out votes, to change outcomes. There would be genuine pressures to fraud and abuse. It would be an election no one understood until the next day or the day after, with recounts that go on forever, and in any event, with no conclusion, and a runoff to come. The drama, the dignity, and decisiveness and finality of the American political system is drained away in an endless sequence of contests, disputed outcomes, and more contests to resolve outcomes already disrupted. (emphasis added)
That is how legitimacy is lost. That is how a nation trivializes those solemn events that make for the singlemost important ingredient of a civil society, which is trust.