In 1981, I began an article the Wall Street Journal by pointing out that "where the Electoral College is concerned, nothing fails to succeed like success." What was true then is true today. In 1996, as in 1980, the Electoral College produced a clear and immediately known winner; in 1980, and in each ensuing election, including that of 1996, it gave us a constitutionally legitimate President. Yet once again, by succeeding rather than failing, it failed to silence its critics. Why can't they leave well enough alone? Why must they tamper with the Constitution? Because, they say, the Electoral College is "dangerous," and not only dangerous but "undemocratic."

The danger is said to consist in the possibility that a candidate might receive a majority of the electoral votes while receiving fewer popular votes than his or her opponent. That happened in 1888, and it is always possible (although unlikely) that it could happen again. But what if it did? Have we reached the point where the Constitution, alone, is incapable of lending legitimacy to an office? Where the right to hold an office depends solely on the suffrage of a popular majority? (I remind the members of this subcommittee that our greatest president, Abraham Lincoln, won a mere 40 percent of the popular vote in 1860.) Are the sponsors of these proposed amendments willing to say to the people that a candidate elected with a constitutional but not a popular majority is an illegitimate president? The reformers (perhaps including the sponsors of these amendments) speak of this popular-vote-electoral-vote discrepancy as a "time bomb waiting to go off," but the one time it did go off, in 1888, nothing happened; there was hardly a ripple of popular discontent, no complaints from the losing candidate, Grover Cleveland, that he had been cheated, no spate of editorials claiming that Benjamin Harrison was an illegitimate president. Unfortunately, I fear the public would react differently today, largely because the moral authority of the Electoral College-indeed, of the Constitution itself—has been undermined by these persistent efforts by members of Congress to replace it with a system of direct popular elections.

Undemocratic? What is undemocratic about a system of one man, one vote, and the majority rules? Admittedly, the majority rules at the state level where (except in Maine and Nebraska) the votes are aggregated, but that is where the vote of any particular minority looms larger, or carries more weight, than it is likely to do in the country as a whole. So long as a minority is not distributed evenly throughout the country, but is concentrated within particular states, it is in its interest to oppose direct popular elections; most civil rights leaders have understood this. Is there not something to be said for an electoral system that threatens to penalize a political party and its candidate for failing to respect the rights of respectable minorities? Is there not something to be said for a system that protects the interests of the states as states, which is to say, a system with an element of federalism built into it? Only twice in this century (1960 and 1976) has the candidate with an electoral college majority failed to win a majority of the states. And is there not, then, something to be said for a system that threatens to penalize sectional candidates?

The American idea of democracy cannot be expressed in the simple but insidious formula, the greatest good for the greatest number. What the greatest number regards as its greatest good might very well prove to be a curse to those who are not a part of that number. The American idea, which is expressed in the Declaration of Independence and embodied in various provisions of the Constitution, is that government is instituted to secure the rights of all. What is constitutionalism if not a qualification of majoritarianism?

The men who founded this country surely recognized the entitlements of a popular majority, but, with an eye to the qualifications or qualities required of an office, they devised institutions—the Electoral College is one of them—that modify or qualify the majority principle. Nothing could be clearer than that the Founders sought free institutions that would protect the country from what has come to be called populism. The organizing principle of the Senate is surely not majority rule, nor are its procedures simply democratic. Federal judges are not elected at all. If legitimacy springs only from the principle of one man, one equally weighted vote, upon what meat do these our judicial Caesars feed? Indeed, if populism is our only principle, why vote at all? Why not select all public officials by lot? That is truly democratic, because that and that only, is a system that pays no attention whatever to the qualifications of office holders. In short, what we should be disputing is the issue the Founders disputed, namely, what system is more likely to produce a President possessing the qualities required of the person who holds this office. I may be blind, or deaf, but I have yet to encounter an opponent of the Electoral College who argues that a President elected directly by the people will be a better President.

I turn now to what is likely to happen if we abolish the Electoral College in favor of a nationwide popular election with provision for a runoff between the two top candidates in the event that no candidate receives at least 40 or 50 percent of the popular vote.

Under the Electoral College, the independent or third-party candidate—Ross Perot, for example—must win at least a plurality in at least one state to have any electoral effect, and that is likely to happen only in the case of a candidate with strong regional support. Otherwise, the argument goes, a vote for an independent candidate will be "wasted." Thus, even George Wallace, who in 1968 mounted the most successful third-party bid for the presidency in a half-century, watched his support fade from a high of 23 percent, in a September opinion survey, to 13.5 percent in the November election, at least in part because of the wasted vote argument.

But that argument would carry no weight whatever if we were to scrap the Electoral College in favor of direct popular elections. The supporters of a third-party or independent candidate would have every reason to vote for him or her in November, especially if (as in the case of Ross Perot) their candidate enjoyed considerable popularity. Instead of being wasted, their votes would almost surely prevent either of the two major-party candidates from winning 40 or 50 percent of the popular vote, and might even ensure their candidate a place in the runoff. At this point, the real contest would begin, all of it being waged behind the scenes as the two finalists compete (deal, trade, bribe) for the support of the third-place finisher, whether Bob Dole, Bill Clinton, or Ross Perot. Add the fourth place finisher David Duke—and in a direct popular election his, say, five percent of the vote might well earn him a place at the table and with it a share of the booty—and we could have a system similar to the worst of those southern gubernatorial contests of the past in which the winning candidate was required to pay a bigot's ransom.

I close by quoting from the testimony submitted by Professor Herbert Storing to the Subcommittee on the Constitution of the Senate Judiciary Committee in 1977: "To see the case for the present system of electing the president requires a shift in point of view from that usually taken by the critics of the [Electoral College]. They tend to view elections in terms of input—in terms of the right to vote, equal weight of votes, who in fact votes, and the like. The framers [of the Constitution] thought it at least as important to consider the output of any given electoral system. What kind of men does it bring to office? How will it affect the working of the political system? What is its bearing on the political character of the whole country?"

If James Madison, Alexander Hamilton, Benjamin Franklin, Gouverneur Morris, and the rest, thought it important to look at output as well as input when designing the electoral system, I think this subcommittee is obliged to do the same when considering proposals to amend it. I doubt that you can come up with a better system than they did.

Walter Berns is a resident scholar at AEI.