10/19/2012 10:58 am ET Updated Dec 19, 2012

An Electoral Mandate - But for What?

Shortly after being declared the winner, the next president will claim a mandate to govern. His supporters will revel in his victory and demand that his mandate, delivered by the voters, be honored. Both misread American politics and the Constitution.

Politically, the winners will insist that victory is a mandate for specific policies. If it is President-elect Romney, they will expect "Obamacare" to be abolished, individual tax rates lowered, and oil and gas drilling expanded. If it is President-elect Obama, they will expect tax increases on the wealthy, major investments in infrastructure, and a focus on alternative energy sources. Emotionally, the winners will feel that the "mandate" means that the nation has made a firm choice and that it is time to move on -- to turn that choice into governing reality.

Yet while the American system is designed to produce an Electoral College winner, it is not designed to give that winner the kind of mandate he or she expects. Winning the electoral vote is not even a guarantee of winning the popular vote (remember the election of 2000). This election could easily produce a similar result. Even if the winner gains both an electoral and popular vote majority, the latter could well be a spread of 51 to 49 percent or less.

This has -- or at least should have -- three profound implications for us. The first is that the president, to be effective, must address the interests of all Americans, not just the preferences of his electoral majority. Thomas Jefferson captured this well in his First Inaugural, written after the bitter context of 1800. In that nail-biter, he barely defeated John Adams and then required 36 ballots in the House of Representatives to beat his own running mate, Aaron Burr, with whom he was tied in the electoral vote. As Jefferson, seeking reconciliation with his opponents, so well put it:

[T]hough the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.

And he did not stop there:

Let us restore to social intercourse that harmony and affection without which liberty and even life itself are but dreary things. And let us reflect that, having banished from our land that religious intolerance under which mankind so long bled and suffered, we have yet gained little if we countenance a political intolerance as despotic, as wicked, and capable of as bitter and bloody persecutions.

The second implication is that majority rule -- what the mandate-claimers rely upon -- is not the same thing as justice. Indeed, the Founders worried a great deal about the possibility of majority tyranny. In a monarchy, they knew, the solution to tyranny is to revolt and depose the king. They had done that. But when the power of the state is vested in a government elected by the majority, were do you turn when that majority is unjust? They can both outvote you and turn the full power of the state against you.

The president is charged with executing the laws in pursuit of the goals in the Constitution's Preamble, and the first of those is to "establish Justice." Whether Romney or Obama, the next president needs to ask himself -- and his followers need to ask as well -- what is justice in regard to such major issues as the debt, deficit, environment, taxes, health care, energy, and poverty in America. If the answer is simply "we won, so we get to decide," the disunity that has plagued the last four years will continue, the exact opposite of the union that meant so much to the founding generation.

The third implication is that the president is not, as former President Bush liked to put it, the "decider." We have at least three other deciders in our system -- the House, the Senate and the Supreme Court. Thus, assuming that electoral success provides a mandate ignores that the people, and the Framers, in their wisdom, have invested a lot of other officials with "mandates" too. A president who acts otherwise risks hubris at best and four failed years of leadership at worst. His followers risk a failed America.

This does not mean that the next president and his electoral majority should abandon pursuit of the policies and legislation they believe are in the best interests of the nation. They have a right and obligation to do so. But it does mean that they need to understand the system in which they must operate and seek to forge not just victories but just results that help the nation.

In short, the next president will have a mandate to engage others, to address minority rights as well as majority wishes, and to seek compromise within the society and across the government. He will also have an obligation, as president of all the people, to lead his followers to see the need to do the same. If he and they understand this as also part of what comes with victory, then the election may actually produce something more than four more years of division in a nation that cries out for healing.