American Government and the Constitution Lecture Three

American Government and the Constitution Lectures: 1-2-3-4-5-6-7-8-9-10-11-12-13-14

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An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: "I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God." This section does not affect other oaths required by law.

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The above is Title 5 of the United States Code, Section 3331, which establishes by law that federal officials other than the president take the above oath of office. Notice that the oath is to defend the Constitution, "So help me God." Our nation is governed by the Constitution, by "Rule of Law."

Why does the federal law say "except the President." Does the president take an oath of office? What is his oath?

If you read Article II of the Constitution carefully in the first homework assignment, then you know that the oath of office for the president is in the Constitution itself. Article II, Section 1, clause 8, states that the president, when sworn into office (usually during his inauguration a few months after being elected), must take this oath:

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I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

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Usually it is the Chief Justice of the United States (the highest judge on the Supreme Court) who administers the oath to the president, typically in Washington, D.C. But not always. When George Washington became president for the first time in 1788, there was no Capitol yet in Washington, D.C., and there was no Supreme Court yet. So George Washington was sworn in New York City, by a state official. Calvin Coolidge became president when Warren Harding surprisingly passed away from an illness, and Coolidge was sworn in by his father, who was merely a notary public authorized to witness signatures on documents. Coolidge did not take the oath in Washington, D.C., but at his father's home in Plymouth, Vermont.

Article II - Creating the Presidency

Article II of the U.S. Constitution creates something that never existed before: an office of president of the United States. Previously, under the Articles of Confederation, there was no executive position of "president". Prior to the U.S. Constitution, there was only a position of president of the Congress, which was part of the legislative body and comparable to the titles of "Speaker of the House" and "Majority Leader of the Senate" today.

Article of the Constitution changed all that, by creating a separate, independent, and powerful branch of government to be led by an elected "president". He was not to be elected by a majority vote of the people, but by an "Electoral College" that is based on the existence of the States as separate sovereign units. At several times in American history, the candidate for president who won the most votes of the people has not won the election. Most recently, in 2000, George W. Bush won the election for president even though his opponent, Al Gore, received more votes than Bush did. If the Constitution created a democracy, the candidate with the most votes would be the winner. But as we have already learned in this court, the Constitution does not create a democracy. The Constitution creates a republic.

The Electoral College

The "Electoral College" is how the Constitution requires Americans to elect a president every four years. The Electoral College gives each State the right to decide, for itself, how it will allocate its share of the vote for the candidates.

Today, there are a total of 538 total votes in the Electoral College, which are divided among the 50 States (plus several territories) based on a sum of their number of members in the House of Representatives and Senate. For example, New Jersey has 12 members of the House of Representatives and (like every State) has two U.S. Senators, for a total of 14 Electoral College votes. States with larger populations have a greater vote in the Electoral College: California has 55, Texas has 38, and Florida has 29.

All states except for Maine and Nebraska choose a "winner take all" system, whereby the candidate who wins the most votes in the State then receives all of the State's votes for president. The extremely close presidential election of 2000 between Bush and Gore illustrated how this works.

Because there are 538 total Electoral College votes, a candidate must obtain 270 Electoral College votes in order to win. In the presidential election of 2000, not counting Florida, Al Gore was ahead with 267 Electoral College votes to George W. Bush's 246 Electoral College votes. The vote in Florida was so close that it was impossible to official declare a winner on election night.

If Florida had a law giving each candidate the same percentage of the Florida's Electoral College votes as he won in the vote by the people, then Gore and Bush would have each received about 50% of the Electoral College votes from Florida, and Gore would have won the presidential election.

But instead Florida, like most States, votes with one voice in the Electoral College by casting all of its votes for the candidate who won the people's vote in Florida. This is similar to how a jury makes a decision for one side or the other, and similar to how the delegates voted at the Constitutional Convention, where each State had one vote based on a majority vote by the delegates from that State. So Florida, like most States, did not split its Electoral College votes between Bush and Gore, but instead cast all of its Electoral College votes for one or the other candidate.

If you set the rules for your State, would you have this type of "winner-takes-all" system? The advantages include preventing a candidate from taking the State for granted, and causing the candidate to try to win the State rather than simply attract some votes there. Florida gets more attention from the candidates by having its "winner take all" system than it would otherwise. This system is similar to sports contests, where fans prefer having a "winner" and a "loser", rather than a "tie" where neither side clearly won or lost. On the other hand, having a winner-take-all system may result in decreased attention for a state that is safely Republican or Democratic. For example, New Jersey is a safe Democratic state that assigns its Electoral College votes on a winner-take-all basis, so it is a waste of money for either candidate to campaign there. On the other hand, if New Jersey awarded Electoral College votes proportionally, it may be worthwhile for candidates to campaign there to get a few additional votes in the Electoral College. In 2013, the Republican legislatures in Pennsylvania and Virginia considered bills that would award Electoral College votes by Congressional district, meaning that one vote would go to the winner of each Congressional district. Both states went to Obama in 2012, and the efforts were seen as a way to allow Republican candidates to obtain at least some Electoral College votes, whereas under winner-take-all, they would be unlikely to get any at all.

There are other advantages to the Electoral College system. No national recounts of votes are required in close presidential elections under this system. In 1960, John F Kennedy received 34,220,984 votes, or 49.7%, compared with Richard Nixon, who won 34,108,157 votes, or 49.6%. Barely 100,000 votes, out of more than 68 million cast, separated the two candidates. In the absence of an Electoral College system, a nationwide recount would have taken many weeks and might have changed the result. But with the Electoral College, the overall outcome did not depend on the results in Illinois, as Kennedy's margin of victory in the Electoral College was large enough that he would still have a majority even if Nixon won Illinois.

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