The electoral college is not “readily understandable,” but it has proven itself marvelously effective and adaptable. Bickel perceived Congress as biased toward the “rural, nativist, and Protestant,” and therefore warranting the counterbalance by a President whom the electoral college has compelled to appeal to urban minorities. Despite its favoritism for the large state and its well-defined urban subgroups, the electoral college serendipitously satisfies the rural and small-town residents of the small states: they feed on the “symbolic value” created by the electoral college’s recognition of the individual states. “It happens that the electoral college can satisfy, at once, the symbolic aspirations of the small states, and the present, practical needs of the large ones. Not many institutions work out as artistically as that.” Presumably, the citizens of large states do not suffer from the negative symbolism of the constant two; perhaps their urban savvy enables them to see real advantage, while the rubes are placated by symbolism....That last quote chimes with a column in the L.A. Times that many of us were reading over the weekend, in which lawprof Kenneth Jost goes so far as to assert that the Supreme Court could actually find the Electoral College unconstitutional because it fails to comport with the one-person-one-vote interpretation of the Equal Protection Clause of the 14th Amendment (which doesn't apply to the federal government, a fine point that can be taken seriously or brushed off, depending on what you want to see happen). Jost writes:
Bickel conceded that demographic change will inevitably take place, but trusted the system to “digest” any change and turn it once again to the good. Bickel’s constitutional system is a living organism, growing, adapting to change, and, apparently, possessed of a digestive tract. How much easier it is to trust the continued evolution of a living system that has adapted in the past than to look toward an untried reform, designed according to the reformers’ naïve reliance on abstract principle!
Why is it not the case, one might ask, that the large states and the urban minority groups, whom Bickel wanted to empower, would benefit at least as much from the direct vote plan? One imagines candidates motivated to pursue as many votes as they can get, regardless of geographic distribution, as efficiently as possible. Would they not gravitate to the densely populated urban areas and make proposals aimed at the well-organized and well-defined demographic groups? As Bickel asserted, the direct vote system would lead candidates to run national campaigns, ignoring the local urban concerns that are so important in the electoral college system. Bickel did not credit the direct vote proponents with practical sense: to him, they are fools, “mesmerized” by the one-person, one-vote slogan.... Instead of valuing the counterbalancing presidential role the electoral college promotes, reformers dreamed up the absurd idea that they ought to “amend the Constitution to make it mean what the Supreme Court has said it means.”
The electoral college is enshrined in the Constitution, but that doesn’t necessarily make it constitutional.Well, yeah, it does, but let's continue:
The framers “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” Justice Anthony M. Kennedy wrote in nullifying anti-sodomy laws in Lawrence vs. Texas. “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”Lawrence v. Texas is an interpretation of the Due Process Clause which contains the word "liberty," and Kennedy was talking about looking for the meaning of "liberty" and seeing the abstract concept as something that can be understood differently at different times. There's no complicated search for the meaning of the Electoral College. The Constitution delineates it in explicit, concrete terms. There's no interpretation of the relevant words that can make it go away. You'd have to leap to the shocking concept that part of the Constitution can violate another part of the Constitution. Imagine what we could do with that. The Establishment Clause violates the Free Exercise Clause, etc. etc.
Let's get back to my article about Bickel's book:
It would make more sense, Bickel writes, to look at the good the electoral college has done and to infer the incorrectness of the one-person, one-vote principle. Indeed, the principle defies many of the structural components of constitutional law: the role of the Supreme Court, the two-senator allotment, the provision of at least one House member for each state, and the various requirements of supermajority. If Baker v. Carr is telling us to look with suspicion on all of those things, we ought instead to look with suspicion on Baker v. Carr. Democracy is not a matter of one-person, one-vote but of building “widespread assent” though the aggregation of a collection of minorities; “minorities rule” in a pluralistic country. Somehow, mysteriously, the electoral college achieves that real, complicated majority. Or so goes the Bickelian argument.