You would expect that a Harvard Law School professor would be the voice of reason and sanity. But, we live in difficult times, and, in a recent Washington Post op-ed Prof. Lawrence Lessig showed himself to be so totally overwrought about the election outcome that he recommended that electors defy their oath in the electoral college and vote how they pleased.
He counts among those who want to change the rules after the game is over. It’s a genuinely bad idea.
In brief, Lessig suggested that designated electors vote their conscience and not their commitments. By his idealized version of democracy—and it is not just his—the will of the majority of the people should prevail over the American constitution.
He is not alone in offering this viewpoint. And yet, if he takes it as seriously as he says, then he should be demanding that we scrap that other decidedly undemocratic institution: the United States Senate.
In any event, Lessig has just been schooled by The Economist, in its Democracy in America column. It is rare that a magazine takes on and brings down a Harvard professor, but the magazine did just that. As happens with most articles in that magazine, it is not signed.
The magazine accuses Lessig of “motivated reasoning.” By that theory people are often inclined to select out data that confirms their beliefs, ignoring facts that would tend to disprove them. Amusingly, for me at least, the notion of motivated reason, coupled with confirmation bias gives the lie to Freud’s claims that his patients provided material that proved the correctness of his interpretations. Suffering from motivated reason his patients were, in fact, conjuring up material that would prove him to be right. At times, of course, they did not believe it themselves.
Anyway, the Economist summarizes Lessig’s argument.
First, he says, there is no rule in the constitution compelling electors to vote for the candidate who received the most votes in their respective states. In fact, nothing in the document suggests “that electors’ freedom should be constrained in any way”. True enough.
Mr Lessig summons Alexander Hamilton’s argument in Federalist #68 that electors should vote based on “a judicious combination of all the reasons and inducements which were proper to govern their choice”. Electors are, to Mr Lessig’s mind, a “safety valve” in case Americans screw things up a bit too royally: “Like a judge reviewing a jury verdict where the people voted, the electoral college was intended to confirm—or not—the people’s choice”.
The Economist says that Lessig has indulged a bit of sophistry, via a specious analogy:
Judges do not appear out of nowhere to put the brakes on jurors’ democratic sentiment: they are carefully chosen, or they are supposed to be, for their intellect, expertise and fair-mindedness. Electors are tapped on the basis of their loyalty to a political party—not because they are wiser or more reflective than anybody else.
Lessig has misunderstood the electoral college. It is not a deliberative body populated by solons. It is populated by “faceless hacks.”
The Economist continues:
The electoral college isn’t a deliberative body at all: there is no discussion, just a secret-ballot vote. And each state’s electors vote in separate locations, never seeing each other or exchanging a word before doing their one-off constitutional duty.
Even if the 538 electors were somehow men and women of profound virtue and valour, blessed with a deep understanding of what America needs in a president, it would still be antithetical to democratic principles to untether their vote from the results of the actual vote on election day. But at least that looks like an enlightened aristocracy. How much more dangerous would it be to entrust the choice of the person to run the country to a few handfuls of ordinary people who have no particular clue?
Lessig believes that electors know better than the voters of their states. The Economist calls him out on yet another piece of sophistry:
Under what theory would a smattering of several hundred unvetted party loyalists have a better radar for brainwashed or criminal candidates than upwards of a hundred million voters?
If anything, entrusting the choice of the president to a group that’s 0.0005% the size of the voting population would make it more likely, not less, that a nightmare candidate would win the keys to the White House. Mr Lessig would like the electoral college to be “reflective” and “conservative”, and assert itself only for “a very good reason”, but it's hard to square this charming image of an obedient collection of right-thinking adults with Mr Lessig's point that no constitutional constraint binds them. Without an overlord telling them when to rebel and when to go with the flow—or, perhaps, an Ivy League professor whispering in their ears—the electors seem singularly incapable of saving the nation from a loon, a fascist or an inveterate Twitter abuser.
Of course, Lessig trots out the argument that electors should vote for Hillary Clinton because she won the most popular votes. And yet, electors are not bound by the national vote tally. They are obliged only to vote for the candidate who won the majority of votes in their respective states.
Then, Lessig adds the patent absurdity that Hillary was “the most qualified candidate for president in more than a generation.” In fact, she lost the election because the American public saw her to be an incompetent fraud.
Besides, the Economist continues, the democracy cannot function unless people play by the rules. The system, Justice Oliver Wendell Holmes, Jr. once opined, is about playing by the rules, not necessarily obtaining justice.
Those who refuse to accept the outcomes are acting like pre-schoolers. The Economist explains:
Playing by the rules should result in the spoils that rule-following doles out to all involved parties. To tweak an admonition often directed to pre-schoolers, you get what you get, and whether or not you get what you want, you don’t get to upset the structure under which everyone was operating in the first place.
Hail Mary attempts to thwart a Trump presidency—whether it’s throwing good money after bad in expensive recounts that have no real chance of changing the outcome or reimagining the nature of an old and weird institution with roots in the protection of slave states—are understandable. But they are desperate, and the latter is dangerous. Electors are better off doing what they were haphazardly appointed to do under America’s unique and all-too-flawed electoral set-up: represent the vote totals of their home states.
Desperate people say desperate things. When serious law professors let themselves be carried away on a wave of emotion, what hope is there for the rest of us?