100 Geo. L.J. 237 (2011-2012)
Response: The Case for Reforming Presidential Elections by Subconstitutional Means: The Electoral College, the National Popular Vote Compact, and Congressional Power

handle is hein.journals/glj100 and id is 239 raw text is: 


Response: The Case for Reforming Presidential
Elections by Subconstitutional Means: The
Electoral College, the National Popular Vote
Compact, and Congressional Power

ViKRAM DAVID AMAR*

                           TABLE OF CONTENTS

  I. ARGUMENTS ABOUT FEDERALISMIREGIONALISM .................. 241

  II. THE SENATE ANXIETY  .................................       246

III. THE PLURALITY WINNER AND THIRD-PARTY CANDIDATE PROBLEMS      247

IV. PROBLEMS WITH THE CURRENT NPVC DESIGN ................... 249

  It is particularly fitting that my exchange with Professor Norman Williams,
concerning national popular election of Presidents, should take place in the
100th Anniversary Volume of The Georgetown Law Journal. The Journal
published its first pages precisely at a time when federal legislators across town
on Capitol Hill-and reformers throughout the rest of the nation-were in the
thick of a contentious national movement to bring about popular election of
United States senators. And quite instructively, that movement (although it
culminated in a formal constitutional amendment, introduced in Congress al-
most exactly a century ago, in 1912) was driven and accomplished largely at the
subconstitutional level by creative and energetic people acting first in state, and
only later in national, arenas.
  Every law student learns that the original Constitution assigned the power
and duty to select U.S. Senators to the state legislatures, and that the Seven-
teenth Amendment-codifying direct election of Senators-was a product of
the Progressive Era. But the story of the Seventeenth Amendment is one
primarily about state-level innovation. Beginning in the mid-1800s, state-level
political parties and organizations sought ways to involve the people more
directly in selecting electors. The famous Lincoln-Douglas debates were de-
signed to allow voters to consider whom state legislators would, if elected,
likely select for the U.S. Senate.' But because voters must consider many
different issues-not just Senate selection-when they elect state legislatures,

  * Professor of Law and Associate Dean for Academic Affairs, UC Davis School of Law.  2011,
Vikram David Amar. Although the views expressed here are my own and should not be attributed to
others, I profited greatly from the input of Akhil Amar, Alan Brownstein, Chris Elmendorf, and Carlton
Larson.
  1. See, e.g., David A. Strauss, Commentary, The Irrelevance of Constitutional Amendments, 114
HARv. L. REV. 1457, 1496-97 (2001).

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