WaPo | Lawrence Lessig is a professor at Harvard Law School and the author of “Republic, Lost: Version 2.0.” In 2015, he was a candidate in the Democratic presidential primary.
Conventional wisdom tells us that the electoral college requires that the person who lost the popular vote this year must nonetheless become our president. That view is an insult to our framers. It is compelled by nothing in our Constitution. It should be rejected by anyone with any understanding of our democratic traditions — most important, the electors themselves.
The framers believed, as Alexander Hamilton put it, that “the sense of the people should operate in the choice of the [president].” But no nation had ever tried that idea before. So the framers created a safety valve on the people’s choice. Like a judge reviewing a jury verdict, where the people voted, the electoral college was intended to confirm — or not — the people’s choice. Electors were to apply, in Hamilton’s words, “a judicious combination of all the reasons and inducements which were proper to govern their choice” — and then decide. The Constitution says nothing about “winner take all.” It says nothing to suggest that electors’ freedom should be constrained in any way. Instead, their wisdom — about whether to overrule “the people” or not — was to be free of political control yet guided by democratic values. They were to be citizens exercising judgment, not cogs turning a wheel.
But the question today is which precedent should govern today — Tammany Hall and Bush v. Gore, or one person, one vote?
The framers left the electors free to choose. They should exercise that choice by leaving the election as the people decided it: in Clinton’s favor.