At the core of the democratic process is the view that “all votes must be counted as equal.” In an election for a national officeholder, each voter has a right to expect that he or she will stand in the same relation to the national official as every other voter. It is more important than ever that we act on our best principles and not our worst instincts. Understanding the flawed foundations of the electoral college is the critical first step on the road to reforming the system of presidential selection. Given its many advantages of direct election of the president for the polity, the United States should adopt direct election of the president. The president and vice president are the only national officials who represent the people as a whole, and the candidate who wins the most votes best approximates the choice of the people. This is the essence of “the consent of the governed.”

For present purposes, I take “America’s Unwritten Constitution” to refer (at least in some measure) to the norms, conventions, and practices that have developed in America to give meaning to, and fill in the gaps of, the constitutional text that was penned in 1787, ratified by a requisite number of states shortly thereafter, and formally amended by the Bill of Rights in 1791 and seventeen times during the two-and-a-quarter centuries since. One important constraint on the nation’s Unwritten Constitution is that is must, at some acceptable level, accommodate itself to the written document. A related feature of the Unwritten Constitution is that, as with the formal text, abiding aspects of the unwritten version need to be anchored in some kind of political foundation. These two features of the Unwritten Constitution – a fidelity to the document itself and a grounding in democratic processes – can be helpfully appreciated by examining another crucial component of today’s Unwritten Constitution, and one as to which federal courts have generally been much less central in determining the meaning and operation of the written Constitution’s provisions: the way we select Presidents in America.