The Constitution’s Two Fatal Flaws, Part II: How the Two-Party System Turned the Presidency Into What the Founders Most Feared

In the last post I talked about the Founding Fathers’ first and most obvious of their two fatal blind spots when making the Constitution, their distrust of political parties without doing anything to prevent their formation or mitigating their effects. But the place where the rise of parties most undermined their vision was in the power of the Presidency, which was designed for a George Washington but which the parties would render tailor-made for a Donald Trump.

The Founders of course were very concerned about the tyranny of a single ruler, not only of a king but also of the governors of the colonies the king appointed, but as they deliberated on the Constitution many of them came to see the President as the safeguard against the tyranny or hubris of Congress, saw him as a way to protect against demagogues in Congress while doing little to prevent the office from being taken by a demagogue himself, feared an oligarchic conspiracy of the Senate without doing much to consider the opposite problem of a wholly impotent one paralyzed by faction, and sought to insulate him from Congress’ influence while doing surprisingly little of the reverse. Thus, after much debate, the convention finally settled on the system whereby a group of electors, determined by a process set by each state legislature but imagined to be mostly chosen by the people, would choose the President, and only if a President failed to receive a majority of the Electoral College did the House of Representatives step in to choose the President from the College’s top vote-getters. His powers were meant to serve as a check on Congress and to be in turn checked by Congress, not as a means to tell Congress what to do, but powers they were, and they provided enough of an opening for the President to seize ever more power across the decades and centuries. Doubtless the fact that George Washington was certain to be the first President, and that he was no would-be tyrant but in fact had no wish to take the office at all, was foremost on their minds. “The first man put at the helm will be a good one,” said Benjamin Franklin. “Nobody knows what sort may come afterwards.” Certainly even the opponents of the Constitution had too much respect for Washington to voice any fears that the Constitution would grant him too much power.

The expansion of presidential power has meant that every twist and turn in the fortunes of the nation inevitably gets credited or blamed to the President, even if Congress actually has more to do with them, because the President is expected to “push through the gridlock” through sheer force of will and effectively tell Congress what to do. In effect, despite our alleged anti-monarchist origins, we seem to expect the President to act as an elected king, and Donald Trump in effect presents himself as what, on some level, we want our President to be, indeed what we think he already is.

For Alexander Hamilton, that the President would bear all the responsibility for all the nation’s ups and downs was a good thing. In Federalist #70, he made the case for vesting executive power in one man rather than diffusing it among many, noting that a diffuse executive would make it harder if not impossible to attribute responsibility for any action or inaction, especially if the executive’s deliberation were kept secret. Hamilton believed that “it is far more safe there should be a single object for the jealousy and watchfulness of the people”, that if a plurality in the executive did not result in dissension and paralysis, a far more dangerous problem than in the legislature given the urgency of the decisions the executive must take, it would more likely result in the opposite problem, of a conspiracy of men using such a powerful office to destroy the liberty of the people, aided by the inability to pin responsibility on any one of them. A singular executive can be held responsible for the successes and failures of the nation, and rewarded or punished accordingly. In a republic where the executive must be re-elected, this distinguished him from the British monarch, who was insulated from all responsibility for any decisions he might make that instead devolved upon his advisors who he could overrule.

Had Hamilton foreseen the level of influence the President would come to have on the legislative process, he and the other Founders might have recognized that this degree of attribution of responsibility to the President would insulate Congress from some of the responsibility that might rightly fall to them, even to the point of depressing turnout for midterm elections. A Congress with personal animus with the President could block the passage of any bills whatsoever, even those of the utmost importance, and the President would see much of the blame fall to him, as the Republicans’ showdowns with Obama have proved.

If Hamilton did not see the rise of parties that would make such a conflict possible, it is all the more profound that he did not foresee that it would also allow the executive to obtain more and more power at the expense of the liberty of the people, thanks to a conspiracy not of an executive council but of the President’s party’s representation in Congress, who would willingly expand what circumscribed powers the Constitution gives him even into areas that are rightly Congress’s. Federalist #69 contains Hamilton’s most robust defense of the presidency as substantially more circumscribed in its power than the British monarch, yet many of his points ring hollow. “The one would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of declaring war, and of raising and regulating fleets and armies by his own authority,” Hamilton writes; yet the President has repeatedly, since our last truly “declared” war in World War II, sent the military to fight around the globe without Congress’ explicit permission. “The one would have a concurrent power with a branch of the legislature in the formation of treaties; the other is the sole possessor of the power of making treaties;” yet the Senate rarely applies any real influence on the formation of treaties and in any case, in practice, has little ability but to sign off on the treaty the President gives them. “The one would have a like concurrent authority in appointing to offices; the other is the sole author of all appointments”; yet in practice the Senate, once again, has little influence in changing who the President might choose for judicial and other offices except in cases of extreme disqualification, and if the President’s party is in power not even then, but even the party opposing the President has little power but to stonewall his choices in hopes of capturing the Presidency for themselves or, perhaps, forcing the President to choose someone else who might not be much better in their eyes, all while the country suffers from the continued vacancy.

Nor did Hamilton foresee that the emergence of two great, opposing forces would make the prospect of which party controlled the Presidency of profound importance, to the point of, judging by the left’s reaction to Trump’s election, threatening the liberty of the losing party, or that it would demolish the safeguards the Founders did install against a demogogue or a tyrant ascending to the Presidency. After the revelation of the CIA’s report on Russian influence on the election, Hamilton’s words in Federalist #68 were highly circulated and cited by liberals and by electors considering defecting from Trump:

Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention. They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment. And they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the President in office. No senator, representative, or other person holding a place of trust or profit under the United States, can be of the numbers of the electors. Thus without corrupting the body of the people, the immediate agents in the election will at least enter upon the task free from any sinister bias. Their transient existence, and their detached situation, already taken notice of, afford a satisfactory prospect of their continuing so, to the conclusion of it. The business of corruption, when it is to embrace so considerable a number of men, requires time as well as means…

The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States.

Perhaps Hamilton should have foreseen that when the electoral college exists solely for the purpose of choosing the President, they are less likely to deliberate on the merits of the choices given them than they are to state their intent ahead of time and allow themselves to be used as a proxy for whoever the people of each state really want to be President. Certainly if he had foreseen the rise of parties he might have reached this conclusion. In any event, the rise of parties and especially the two-party system has effectively neutered any hope that the electoral college might serve as any sort of effective check against “foreign powers…gain[ing] an improper ascendant in our councils”. All that is needed is for them to ingratiate one of their number into the nomination of one of the major parties and they will have access to an apparatus that will secure the vote of a considerable number of states, and will install electors obliged to vote for the candidate with an “R” next to his name, no matter his qualifications or lack thereof, no matter his fealty to a foreign power. For them to do otherwise, indeed, is to effectively defy the will of the people, to usurp the choice of the people under the system of election that, if it was not necessarily designed by anyone, is the system we have ended up in and which people believe ourselves to operate under, any deviation from which is inherently anti-democratic. It is quite unlikely in any case as such electors would effectively not only be rejecting a single candidate but calling into question the judgment of their whole party, when they tend to be party flacks, “corrupted” by “time” well before such a candidate even launched his candidacy, and tasked with carrying out the party’s will.

Perhaps more than any other part of the Constitution, the electoral college is difficult to defend in the context of the two-party system. Yet perhaps more than any other part of the Constitution, it is also responsible for that system. As mentioned, the increase in presidential power has resulted in the perception that the presidency is the only elected office that matters, and by not “mak[ing] the appointment of the President to depend on any preexisting bodies of men”, the Founders gave people no reason to care about any other office if the President was going to be that powerful and at least nominally directly elected by the people. Among other things, this means that third parties that set out to break up the two-party system and want to present themselves as viable alternatives inevitably put all their eggs in the Presidential basket, inevitably fail to gain any traction whatsoever (even with two historically hated candidates, Gary Johnson barely even broke three percent), and then whine about how the system is rigged against them. As the 2000 election should have demonstrated, the best-case scenario for third parties running Presidential candidates is to serve as a spoiler tipping the election to the candidate further away from their views. This actually has a name in political science: Duverger’s Law states that, in a “first-past-the-post” system like we have where a plurality rules (and which the Founders never intended), a two-party system is inevitable.

And yet the electoral college also provides more of an avenue for third parties to achieve the presidency than most of the proposed alternatives, if only they could see it and had enough patience to build up power at lower levels first. In so doing, they might alleviate many of the problems people have with our government without directly changing any laws, let alone the Constitution. The great irony is that the Founders’ two blind spots might have cancelled each other out instead of reinforcing each other, if only third parties would follow the path the Founders laid out for them, and which I lay out in the next post.