The Old College Try

Okay, I’ll take up Mike’s challenge: I’m willing to say the Electoral College is more justifiable than affirmative action.

First, let’s observe the different character of the rights or interests in involved. The Electoral College is a set of rules governing the translation of individual votes into electoral outcomes, much like the rules of suffrage (citizens can vote, while recent immigrants generally can’t), rules determining how many votes are enough to count (first-past-the-post versus proportional representation), and the rules determining how much strength of preferences will be taken into account (plurality winner, instant run-off, Borda count, etc.). They are *procedural* rules.

Now, I don’t mean to diminish the importance of procedural rules, but we should always keep in mind that they are *utilitarian* devices for the operation of a government. No one has a fundamental human right to participate in the governing of other human beings. “Democracy” is an ideal that classical liberals, at least, have always recognized as subordinate to more important ideals like liberty and human welfare; we support democratic regimes because we believe they are more likely to yield good results in terms of more basic ideals, not because democracy is inherently valuable. And that is why we can sometimes change the rules of democracy, such as by limiting the franchise, imposing term limits, constitutionally barring certain kinds of action favored by the majority, and so on. There is no Platonic form of democracy to which all real democracies must try to adhere.

Affirmative action, on the other hand, is not simply a matter of the procedural rules used for the election of a government; it is about the substantive policy choices made by that government with respect to individuals. Will that government be allowed to discriminate against individuals on the basis of skin color, or will it instead be bound to treat individuals equally?

Second, let’s recall the historical origin of the Electoral College. The justification of the EC was the same as the justification of the Senate, in which seats are apportioned at two per state instead of by population (and note that all of Mike’s arguments below could be applied with equal or greater force to the Senate). The federal government was not intended to be a direct representative of the people, but instead a representative of the individual States, which were the direct representatives of separate groups of people. In other words, the EC is just one more aspect of our federalist system of government.

It is true, of course, that the U.S. government is no longer so federalist as it once was, in large part because of the 14th and 17th Amendments. Some people would be willing to do away with federalism entirely, which is at least a consistent position, albeit one I disagree with. But it’s misleading to think of the Electoral College outside that context. I won’t attempt a general justification of federalism here, but I will offer an instructive analogy. Suppose that Canada and the United States concluded a new free-trade treaty, which created a new bi-national committee with the job of resolving disputes about the terms of the treaty. Now, if seats on the committee were apportioned by population, the U.S. would clearly dominate the committee and control all its decisions. And given that fact, Canada would probably reject the treaty creating such a committee – or else demand, as a condition of approving the treaty, an amendment granting Canada equal representation on the committee despite its smaller population. This, I think most would agree, would be a perfectly justifiable exercise of the Canadian government’s obligation to protect its own people’s interests. Well, a similar argument applies to the federalist structure of government within the U.S.: federalist rules are meant to create room for individual States to defend the interests (and rights!) of their citizens, even if they are vastly outnumbered by the citizens of California and New York.

Now try to apply the same argument to affirmative action. To make it work, we must imagine that the nation is actually a federation of races, who have reached a kind of contract to live together. Each race might demand certain concessions in order to conclude the contract, such as side payments and guaranteed seats in the legislature. Now, it might be argued that geographical boundaries are at least as arbitrary as race, so maybe this notion isn’t so far-fetched. And in fact, I understand that Lebanon had a system very much like this for many years. But that is not what happened historically in the U.S., and I think we should be happy about that. There are justifications for local government that don’t apply to race. First, geographic boundaries are clear, whereas the lines between races are fuzzy. Second, you can potentially change where you live, but (Michael Jackson notwithstanding) it’s pretty much impossible to change your race. Third, local governments have better incentives to be responsive to their constituents than do national governments; I don’t think the same incentive argument applies to races relative to the human race as a whole, not least because there is no such thing as race government (the self-appointment of Jesse Jackson, Al Sharpton, and their ilk notwithstanding). Fourth, the very arbitrariness of geographic boundaries can be helpful in fighting off the pernicious notion that some groups are people are better, or more in need of special assistance, than others (the occasional joke about inbred Arkansans notwithstanding). Our understanding that New Yorkers are not fundamentally better than Oklahomans forces us to recognize the instrumental character of federalist rules that seem to treat them differently.

In short, I think treating the Electoral College the same as affirmative action misses out on the specific political goal of that institution: to resist centralized government. Perhaps it doesn’t work terribly well in achieving that goal, but at the very least we should recognize the interest in constraining government as a compelling one. If we condemn the EC (and the Senate!) for failing to represent all individuals equally, perhaps we should also consider granting China votes in the United Nations proportional to its share of the world population.