The Federalism Factor
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bers of the Supreme Court have understandably turned from time to
time to the debates of the Federal and State ratifying conventions of
1787–1788, the essays in The Federalist, and other original sources in order
to gain a better understanding of the Framers’ intentions. Although
most provisions of the Constitution are clear and precise, and may be
interpreted from the text itself, the nebulous, unwritten reserved powers of the States constitute a gray area of constitutional law that has always been a source of disagreement and debate in American law and
politics.
Article II of the Constitution, which establishes the office of the President and confers the executive power, represents another example of
how the Framers wove federalism into the constitutional fabric. Although we do not ordinarily think of the executive branch as part of the
federal design, it is nevertheless the case that the States play an important role in the election of the President. This is because of the Electoral
College.
The manner in which the President shall be elected is stipulated in Section 2 of Article II. It provides that each State shall decide for itself how
it shall choose electors, and that it is entitled to a number of electors that
is equal to the number of Representatives and Senators it sends to Congress. The electors of each State then meet in their respective States to
name two candidates for the presidency, one of whom must be from a
different State. Then, when all of the nominations from all of the States
have been tallied, the candidate with a majority of the electoral votes is
declared President and the runner-up is chosen Vice-President. In the
case of a tie, the House of Representatives elects one of the two candidates as President; and in case no candidate has a majority, then the
House of Representatives shall select the President from a list of the five
candidates who have received the highest number of votes. If the House
is called upon to elect the President, the votes are taken not by the individual, but by the States, with each State receiving one vote.
This system lasted only until the election of 1800, when Thomas Jefferson and Aaron Burr each received the same number of electoral votes. It
had been generally supposed that Burr really was a candidate for the vice
presidency. But when he realized the possibility of being made President,