The Inaugural Abraham Lincoln Lecture on Constitutional Law: Electoral College Reform, Lincoln-Style
2017; Northwestern University School of Law; Volume: 112; Issue: 1 Linguagem: Inglês
ISSN
0029-3571
Autores Tópico(s)Judicial and Constitutional Studies
ResumoOUR STORY BEGINS with a Republican president taking office even though, pretty clearly, more Americans had voted against him than had voted for him.No, we are not talking about Donald Trump. (But since he does love being talked about, we will talk about him soon enough.) And no, we are not talking about George W. Bush in 2001, although he too will enter our story, stage right, later on. Nor are we talking about Benjamin Harrison in 1889 or about Rutherford B. Hayes in 1877. Rather in this, the Inaugural Abraham Lincoln Lecture on Constitutional Law, it is altogether fitting and proper that we begin with the Inaugural of Abraham Lincoln himself on March 4, 1861.On that Inaugural Day everyone understood that Lincoln had won a clear majority of duly cast and lawfully counted electoral votes, 180 out of a total of 303. Everyone understood that Lincoln was thus undeniably entitled to give his speech and take his oath and wield all presidential power for the next four years under the Constitution. Yet participants and onlookers that day also understood that the recent November election had been an odd one. Lincoln's democratic mandate, to use a modern term, was shaky.Running as a Republican against a fractured field-with Stephen Douglas bearing the official standard of the Democratic Party, and John Bell and John C. Breckinridge leading sizable splinter groups-Lincoln had captured less than 40% of the national popular vote in November: 39.65% to be precise. Although this was a substantial plurality-Douglas placed second, ten points behind-it was not exactly resounding. Most of the voters who had supported Douglas, Bell, or Breckinridge did not view Lincoln as a close second choice. Most in fact were voting not just for their man, but against Abe. Though no one can be sure today or could be sure back then, it is quite possible that in a head-to-head competition between Lincoln and Douglas-a clean rematch of the 1858 contest between these two for the Illinois Senate seat-Douglas would have won more popular votes nationwide.Even if so, Lincoln's Inaugural was poetic justice. Proverbially, turnabout is fair play. And in at least two ways, Lincoln's victory counterbalanced earlier episodes in which the shoe had been on the other foot.First, in 1858 more Illinois voters had backed Lincoln's fledging Republican Party than Douglas's Democrats. The Republicans that year won roughly 50% of the statewide popular vote for state legislature, compared to only 48% for the Democrats. But thanks to the usual electoral imprecisions and idiosyncrasies (the sizes and the shapes of districts, uneven ratios of voters to inhabitants in different places, varying victory margins in diverse local contests, and so on), the Democrats managed to win a majority of the legislative seats at stake that year-forty-six compared to forty-one for the Republicans. Also, thirteen seats were not on the ballot that round; and most of these holdover seats-eight to be precise-were held by Dems. Thus, when the new Illinois General Assembly convened after the election, Democrats controlled fifty-four of the one hundred seats and naturally picked Douglas over Lincoln to represent the state in the U.S. Senate.1Here, then, is the first turnabout and piece of poetic justice: In 1858 Lincoln lost even though he arguably won the popular vote; but in 1860 Lincoln won even though he arguably lost the popular vote.Now for the second piece of political poetry: The Electoral College had been intentionally engineered in 1787-88 and purposefully redesigned in 1803-04 to bolster the slaveholding South, but in 1860-61 this elaborate electoral contraption ended up working to the advantage of a northwestern opponent of slavery.2 Lincoln was America's first openly antislavery president, and he became so precisely, if ironically, because of the Electoral College system itself.I shall soon say more about the slavocratic roots of the Founding generation's Electoral College; for now, let me simply show you that Lincoln's victory flowed from the basic structure of the system, and not from any unique quirk created by the unusually crowded field. …
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