When it comes to election laws, acrimony, not agreement, is the order of the day. Perhaps the most consequential debate in the United States today pertains to the legitimacy of the Electoral College.
Who should elect the president of the United States? Either the state electors, selected by each adult person in his or her state, elect the president: one man, one vote—in the states. Or every adult in the country votes directly for the president: one man, one vote—in the nation. This dispute exposes growing contestation over how popular sovereignty should be understood and exercised in the United States. Following 2000 and especially 2016, the president’s legitimacy was regularly called into question, because both George W. Bush and Donald Trump lost the popular vote. A number of states and much of the Democratic Party now support the National Popular Vote Interstate Compact, the most protracted effort to abolish the Electoral College.
Are these debates another sign in the collapse of the old political culture of civility? Another chapter in the long history of subordinating electoral debates to short-term political considerations? Or do they indicate that something more radical, a regime change, is taking place?
Because France does us the service of explicitly acknowledging when the constitutional order and regime has changed (modern France has had five republics, two empires, and the Vichy regime), we can answer these questions by considering two French examples. Contestation over election laws marked the demise of France’s Second and Fourth Republics, 1848-1852 and 1958-62, respectively. When we study these examples with the help of Montesquieu, we see that debates over electoral laws are part of more fundamental debates about the meaning of popular sovereignty. These debates should remind Americans of the ultimate goal of suffrage laws: to preserve republicanism from oligarchic and democratic (or as we might now say, “populist”) deviations.
How Montesquieu Connects Debates about Suffrage to Debates about Sovereignty
Among the older generation of Americans accustomed to the predecessor culture of civility and consensus, there is a tendency to forget how important debates over the electoral-representative domain are to representative government. Montesquieu, however, is shrewder. In The Spirit of the Laws, he reminds us that electoral laws are critical to the character of republican government. They establish how the people are sovereign:
There can be no exercise of sovereignty but by their suffrages, which are their own will: now, the sovereign’s will is the sovereign himself. The laws, therefore, which establish the right of suffrage, are fundamental to this government. And indeed it is as important to regulate, in a republic, in what manner, by whom, to whom, and concerning what, suffrages are to be given, as it is, in a monarchy, to know who is the prince, and after what manner he ought to govern.
Since the people cannot rule directly, popular sovereignty hinges on the connection between the few who exercise power and the people who have entrusted them with that power.
Yet how the people should choose their representatives and how they should empower their representative institutions depend on the socio-political conditions facing the polity. Resolving this balance admits of a variety of constitutional orders, so there is no fixed solution to the problem of representation. Nevertheless, debates in the electoral-representative domain must find a solution while avoiding two extremes: on the one hand, the extreme of oligarchy, the party of a few; and on the other hand, the extreme of democracy or “populism,” the rule of one class. At either of these points, republicanism becomes a mere façade, because if either party alters the electoral laws decisively to its own advantage, it ensures its permanent rule—in spite of the wishes of the rest of society. These dangers face any system of representative government.
Montesquieu’s schema helps us grasp whether regime change is in the process of taking place in modern representative government. As electoral laws change, a republican regime may decline toward oligarchy or democracy (in the negative sense). The deeper the conflict over electoral laws goes, the more it becomes a conflict over who exercises sovereignty on behalf of the people. On this basis, conflict over electoral laws can metastasize into conflict over the regime itself, as we see in the denouements of the Second and Fourth Republics.
The Second French Republic
After the overthrow of the Orléaniste monarchy in 1848, republicans set up a parliamentary regime. They agreed that every adult Frenchman would elect the parliamentarians. They also established a president as head of state, whom every adult Frenchman would elect in a direct plebiscite. However, there was not a clear agreement about who really exercised sovereignty in the republican regime. Were the people voting in a weak president, who should defer to a sovereign parliament? Or did the prestige of a president, directly elected by the whole nation, confirm a sovereign presidency, which should be greater than parliament?
A battle was inevitable, for the first elected president was Louis-Napoleon (keen to advance a sovereign presidency), and the first elected parliament was composed primarily of Orléaniste liberals (keen to strengthen parliamentary sovereignty). In 1850, the Orléanistes used electoral laws to try to knock the Bonapartistes out of parliament. They tied suffrage to a three-year residency requirement. This disenfranchised about a third of the electorate, the urban migrant workers likely to support Louis-Napoleon. The stable, docile voters, who preferred the Orléaniste status quo, remained enfranchised.
This law was not merely motivated by short-term political interest, however. Rather, it followed from the liberal parliamentarian interpretation of popular sovereignty. The Orléanistes argued that they were not attacking republicanism, but trying to save it. The need to combat populism required weakening Louis-Napoleon’s base and strengthening liberal parliamentary institutions.
Nevertheless, the Orléanistes overplayed their hand. By moving the republican regime too far toward oligarchy, they called the principle of popular sovereignty itself into question. The conflict between parliament and president now became one where the former violated the principle of universal suffrage, and the other could promise to reinstate it. This gave Louis-Napoleon his opportunity. Riding the prestige of a coup and several plebiscites that he won overwhelmingly, his understanding of popular sovereignty—first, as sovereign president, then as emperor—proved victorious.
The Fourth Republic
After the experience of Louis-Napoleon, republicans rejected direct universal suffrage as the means to select the president of the Republic. The prestige it granted was too risky. They opted to have the parliamentarians elect the president, so the president remained subordinate to the National Assembly, at the price of producing impotent executives. Parliamentary sovereignty seemed to have triumphed. Even General de Gaulle in 1945 failed to persuade the parliamentarians to replace their regime with a presidential one. The odor of Bonapartism, compounded by the Vichy experience, was too strong.
Yet de Gaulle plotted his counterattack, and electoral laws became a site of contestation. In 1951, the fear that the French people were insufficiently attached to republicanism compelled the republican parties to pass the loi des apparentements, which changed electoral laws to favor their own centrist coalition and denied the Gaullists and communists many seats. Again, we should be wary of reducing this to short-term political interest. The Gaullists and communists wanted to change the regime of parliamentary sovereignty. While both protested the loi des apparentements, contending that it confirmed an oligarchic “regime of parties,” the centrist parties retorted that they were changing the electoral laws to save republicanism.
While they won in the early 1950s, they lost in 1958, when it was clear that a strong presidency was needed to resolve the Algerian crisis. With massive popular support, de Gaulle returned. To win the approval of skeptical parliamentarians, the Constitution of 1958 proposed that a college of thousands of notables elect the President, not the people. With the president kept to a limited role by a new constitutional court, the parliamentary elites were satisfied—it still appeared that popular sovereignty was ultimately exercised by parliament, not by the president.
The Final Demise of the Republic
De Gaulle had other ideas. He steadily increased the powers of the president and diminished those of parliament. Because of the political emergency, the parliamentary elites acquiesced. They hoped that once the situation was resolved, they could compel de Gaulle to step down and restore parliamentary sovereignty. Thus, from 1958 to 1962, it was unclear what kind of regime the Fifth Republic was.
In 1962, de Gaulle forced the issue by calling a referendum that proposed a direct plebiscite to elect the president of the Republic. The elites were triply scandalized. First, the proposal had all the old odor of Bonapartism. Second, the proposal was itself constitutionally dubious, as the constitution did not explicitly give the president the power to call for a constitutional amendment through a referendum. Third, the proposal would grant the president the prestige of a direct election, elevating him over parliament and destroying parliamentary sovereignty.
Yet the French people had had enough of the “regime of parties,” and de Gaulle easily won his referendum. Facing this result, the constitutional court declared itself incompetent to judge the constitutionality of the matter, thereby preserving popular sovereignty and resisting the temptation of judicial supremacy. De Gaulle had effected regime change, permanently altering French republicanism and shattering parliamentary sovereignty. He was not shy of telling the French what direct election of the president entailed:
it should obviously be understood that the indivisible authority of the State is entrusted completely to the President by the people who elected him, that there is no other authority—either ministerial, civilian, military or judicial—which is not entrusted and maintained by him.
Lessons for the American Problem
Because it pits two different conceptions of popular sovereignty against each other, the debate over the Electoral College is a proxy for a more fundamental debate over what kind of regime should govern America. The right’s defense of the Electoral College is really a defense of the portions of the sovereign power that reside in the states. By contrast, the left’s attack on the Electoral College is really about making the case for applying one complete popular sovereignty across the nation as whole, thereby stripping the states of their remaining portions of the sovereign power.
Moreover, these two accounts of popular sovereignty disagree on what role the president must play. The direct election of the president would elevate the prestige and office of the presidency over the other branches of government, and thus transform the American regime. The French cases teach a clear lesson: the old regimes did not survive the direct election of the president. Neither would America’s republican regime. The closer Americans come to changing the way they elect their president, the closer they come to regime change. While many Americans would support the principle of “one man, one vote” in the whole nation, most Americans would reject an autocratic regime where the president contended that the “indivisible authority of the State” resides in his person.
Yet the ambiguities of the French examples also suggest another, subtler lesson. If the socio-political conditions are right, Bonapartism can be justifiable as the best means to ward off oligarchy. In both the Second and Fourth Republics, the socio-political conditions were ripe for oligarchy. In the case of Louis-Napoleon, direct election was the means to counter the oligarchic overstep of the Orléaniste elites. In the case of de Gaulle, it was the means to defeat the oligarchic pretensions of the regime of parties. Direct election of the president was not an end in itself. Instead, it was the means necessary to stop a more oligarchic regime.
The subtler lesson, then, is that Americans can follow a thinker as far from the Framers as John Stuart Mill, and not think of representation simply as a technique for realizing “democracy”—understood as majoritarian rule on the principle of “one man, one vote.” In a republic, electoral laws must be arranged not simply as a technique to achieve a formulaic version of “one man, one vote,” but to resolve a political problem. This entails assessing a variety of strategies in the electoral-representative domain, with the goal of adopting that which defeats oligarchy, the perennial threat to republican government. Sometimes, defeating oligarchy might entail direct election (“one man, one vote”).
In other cases, however, direct election would strengthen oligarchy. In those cases, the sensible republican strategy is to attenuate the representative principle of direct election. For instance, in redistricting debates, state legislators are often attacked for “gerrymandering” when they deviate from some allegedly neutral formulaic version of “one man, one vote.” But these legislators are more prudent than most realize. They are addressing a contemporary political problem, strengthening rural representation as a way to invest beleaguered rural classes with greater authority, checking the power of urban elites and their political machines. They are using enhanced rural representation as a strategy to neutralize oligarchs pushing for anti-republican regime-change.
One should not be embarrassed by this reasoning. On the contrary, whether they address the Electoral College, congressional representation, or ballot harvesting, arguments over electoral laws should be framed and debated in terms of what they do to preserve republicanism from oligarchy.