Tuesday, March 19, 2013

Our Decrepit Constitution: Electoral College and The Civil War

Electoral College

Americans credit the men who wrote the Constitution—the framers--with great wisdom and foresight. Supreme Court Justices have started a cult that worships the Constitution as a perfect document. They pore over its text and the opinions of its creators as though they were religious texts and revelations of the true word. Some also claim that the framers were inspired by God, usually by a Christian fundamentalist God.

None of these beliefs is true. The framers were neither godlike nor exceptionally wise. The document is not based on religious ideas. The Constitution is deeply flawed and becomes more so with each passing year. The framers made it hard to change. Amendments require passage by both houses of congress with a two thirds majority, then ratification by three fourths of the state legislatures. Most amendments also specify that they must be ratified within seven years.

The framers have recently been considered by some the infallible source for American law. This assumption implies that they were always right, at least about law and government. This assumption was very far from the truth.

The framers invented the electoral college, ostensibly to prevent the voters from making a mistake when electing a president. Instead, it was the electoral college that made the mistake, in 1800, when it gave the same number of electoral votes to both Thomas Jefferson and Aaron Burr. The House of Representatives elected the president that year. The Constitution created a crisis where none existed.

The framers decided that each state should have only two senators. This compromise gave more power to the less populous states at the expense of the states with larger populations. In 1787 the most populous state, Virginia, had 20 times the population of the smallest, Delaware. In 2010, the most populous state, California, had 65 times the population of the smallest, Wyoming.

History tells us that states vote in regional blocs, with relative size having little to do with their decisions. Neighboring states New York (a large state) and Rhode Island (a small state), for example, voted for the same presidential candidate in the last seven elections. Neighboring states Louisiana(small) and Texas(large) voted for the same presidential candidate in the last seven elections as well. Louisiana and Rhode Island, both small states, voted for different candidates in all seven elections.

Since small states no longer vote in a bloc, if they ever did, the election of two senators from each state, regardless of population, does not serve the purpose intended by the framers. Instead of balancing the interests of different sized states, California's two senators represent a disenfranchisement of 36 million voters in relationship with Wyoming. The framers may have been right in 1787, but their judgment on this matter, at least reflected by presidential choices, is wrong today.

The framers made no provision for political parties in their Constitution. This oversight has become a serious problem in recent years. The British Parliamentary System recognizes that there will always be more than one party. The leader of the majorityThis arrangement gives the leader of parliament, the prime minister, the ability to govern if he can unite his own party behind his platform, a relatively easy proposition, given that all members of his party stood for election on the same platform.

The American system divides government between political parties. This division makes legislation more difficult to pass and slows down the process of government. James Madison argued that representative democracy rather than direct democracy because he claimed that direct democracy gave rise to factions. Madison defined a faction as a group of citizens united in some passion or common interest against the interest of others. He singled out the factions that arise from inequality of wealth and argued that a representative democracy would protect the minority from the majority.

Madison believed the best way to guard against factions was to create a representative democracy. Direct democracies, he claimed, always failed within a short time. The difficulty that arises here, which is a major difficulty with all opinions expressed by the framers, is that these conclusions are drawn on examples with almost no data. The number of direct democracies documented by history in Madison's day was precisely one, the direct democracy of Athens during the fifth century BCE. Any argument based on such limited data must be questioned.

It is pointless to argue whether Madison's theories on factions or democracy were correct. Like the philosophers he admired, Madison argued using only pure examples to illustrate his ideas. Madison argued that representative democracy had advantages over direct democracy but failed to recognize that no pure direct democracy has ever existed nor ever could exist. The representative democracy created by the Constitution has over the years become more democratic, through the direct election of Senators in the federal government and the addition of democratic ideas such as initiative and referendum in the individual states.

The Civil War

Madison considered that factions of the majority were dangerous to a nation, not those of the minority. He had in mind the faction of the poor, which is always greater than the faction of the rich. Madison's Constitution intended to guard against majority factions and guard minorities. This presumption, that only majority factions are dangerous, has been disproved by history. Several crises in American history have arisen because of minority factions, primarily because the wealthy have been successful in seizing and holding the reins of power in precisely the manner which the framers sought to prevent. The rise of a tyrant, which Justice Scalia claims that the Constitution has prevented, has never been a problem in America. What has been a great problem, and remains a problem today, is the accumulation of vast riches by a small class of people, who use their wealth to seize and retain power.

Scholars often speak of a Constitutional crisis as being a political problem that cannot be resolved easily by the Constitution. Examples of such crises were the election of 1800, when Jefferson was elected president by the House of Representatives; the election of 1876, when Benjamin Harrison became president with fewer popular votes; and the Watergate scandal that ended the presidency of Richard Nixon.

The most serious crises in American history did not arise from a failure of the framers to foresee an event. Instead, they were caused by the framers' express intent. Despite Madison's concerns, there have been no factions of the majority. Instead, three crises in American history have been caused by factions of the minority, who were not poor but wealthy. The Civil War, the Great Depression, and the Great Recession were caused by flaws in the Constitution.

The framers needed to gain the support of slave holders. They inserted several pro-slavery features into the Constitution. Article I, Section 2 of the U.S. Constitution defined a slave as worth three fifths of a person. This article strips African Americans of their rights as humans. African Americans not only submit to the lash, they must also give their votes to their masters, who were free to vote, again and again, to keep them in perpetual servitude. This article continued in force for seventy-six years. It contributed to the widespread belief that African Americans were racially inferior and reinforced the conviction in the Southern states that their actions were legal and just.

Article II, Section 1 establishes the electoral college for the election of the president. The slave-holders were concerned that their slaves, once freed, would take control of state government from them. They saw the electoral college as a means to permit a small group of voters to thwart the will of the majority. This worked in actuality. Only 1.3% of the population cast their votes in the first presidential election. Virginia had the most electors, thanks to its large number of slaves. The first president was George Washington, a prominent Virginian and a slave-holder. The second president was John Adams, from Massachusetts. Jefferson, Madison, and Monroe were all Virginians and slave holders. Andrew Jackson, from Tennessee, was also a slave-holder from a slave state.

These early slave-holders held the presidency until 1836. At that time, slave-holders from southern states had held the presidency for 40 of the previous 48 years. They used their tenure to promote slavery at home and abroad. They appointed southerners to the Supreme Court with lifetime tenure. These supreme court justices tried to perpetuate slavery and spread it to the northern states.

The US Supreme Court ruled, in Dred Scott decision(1857), that a slave who lived in a free state was still a slave. All six southern justices voted with the majority. Northern opponents of slavery feared that this decision meant southern slave-holding states could export slaves to the north. The decision heightened tensions that led to the Civil War breaking out in 1861. Although the Supreme Court did not cause the Civil War, Dred Scott showed how much influence the southern states had gained through the electoral college and the pro-slavery compromise within it.


toto said...

The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and DC).

Every vote, everywhere, would be politically relevant and equal in presidential elections. No more distorting and divisive red and blue state maps. There would no longer be a handful of 'battleground' states where voters and policies are more important than those of the voters in 80% of the states that now are just 'spectators' and ignored after the conventions.

When the bill is enacted by states with a majority of the electoral votes– enough electoral votes to elect a President (270 of 538), all the electoral votes from the enacting states would be awarded to the presidential candidate who receives the most popular votes in all 50 states and DC.

The presidential election system that we have today was not designed, anticipated, or favored by the Founding Fathers but, instead, is the product of decades of evolutionary change precipitated by the emergence of political parties and enactment by 48 states of winner-take-all laws, not mentioned, much less endorsed, in the Constitution.

The bill uses the power given to each state by the Founding Fathers in the Constitution to change how they award their electoral votes for President. Historically, virtually all of the major changes in the method of electing the President, including ending the requirement that only men who owned substantial property could vote and 48 current state-by-state winner-take-all laws, have come about by state legislative action.

In Gallup polls since 1944, only about 20% of the public has supported the current system of awarding all of a state's electoral votes to the presidential candidate who receives the most votes in each separate state (with about 70% opposed and about 10% undecided). Support for a national popular vote is strong among Republicans, Democrats, and Independent voters, as well as every demographic group in virtually every state surveyed in recent polls in recent closely divided Battleground states: CO – 68%, FL – 78%, IA 75%, MI – 73%, MO – 70%, NH – 69%, NV – 72%, NM– 76%, NC – 74%, OH – 70%, PA – 78%, VA – 74%, and WI – 71%; in Small states (3 to 5 electoral votes): AK – 70%, DC – 76%, DE – 75%, ID – 77%, ME – 77%, MT – 72%, NE 74%, NH – 69%, NV – 72%, NM – 76%, OK – 81%, RI – 74%, SD – 71%, UT – 70%, VT – 75%, WV – 81%, and WY – 69%; in Southern and Border states: AR – 80%, KY- 80%, MS – 77%, MO – 70%, NC – 74%, OK – 81%, SC – 71%, TN – 83%, VA – 74%, and WV – 81%; and in other states polled: AZ – 67%, CA – 70%, CT – 74%, MA – 73%, MN – 75%, NY – 79%, OR – 76%, and WA – 77%. Americans believe that the candidate who receives the most votes should win.

The bill has passed 31 state legislative chambers in 21 states with 243 electoral votes. The bill has been enacted by 9 jurisdictions with 132 electoral votes - 49% of the 270 necessary to go into effect.

Follow National Popular Vote on Facebook via NationalPopularVoteInc

allanm051 said...

The National Popular Vote bill is what computer programmers would call a hack. It may work, but it does so by breaking the rules. If it is successful, only a few states would have to reverse its position to destroy the whole fabric. The National Initiative Amendment follows the rules and will solve many more problems than this one. Once an amendment passes, it is valid for all states until it is repealed.

toto said...

The U.S. Constitution says "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . ." The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as "plenary" and "exclusive."

The normal way of changing the method of electing the President is not a federal constitutional amendment, but changes in state law. The U.S. Constitution gives "exclusive" and "plenary" control to the states over the appointment of presidential electors.

Historically, virtually all of the previous major changes in the method of electing the President have come about by state legislative action. For example, the people had no vote for President in most states in the nation's first election in 1789. However, now, as a result of changes in the state laws governing the appointment of presidential electors, the people have the right to vote for presidential electors in 100% of the states.

In 1789, only 3 states used the winner-take-all method (awarding all of a state's electoral vote to the candidate who gets the most votes in the state). However, as a result of changes in state laws, the winner-take-all method is now currently used by 48 of the 50 states.

In other words, neither of the two most important features of the current system of electing the President (namely, that the voters may vote and the winner-take-all method) are in the U.S. Constitution. Neither was the choice of the Founders when they went back to their states to organize the nation's first presidential election.

In 1789, it was necessary to own a substantial amount of property in order to vote; however, as a result of changes in state laws, there are now no property requirements for voting in any state.

The normal process of effecting change in the method of electing the President is specified in the U.S. Constitution, namely action by the state legislatures. This is how the current system was created, and this is the built-in method that the Constitution provides for making changes. The abnormal process is to go outside the Constitution, and amend it.

toto said...

The National Popular Vote bill says: "Any member state may withdraw from this agreement, except that a withdrawal occurring six months or less before the end of a President’s term shall not become effective until a President or Vice President shall have been qualified to serve the next term."

This six-month “blackout” period includes six important events relating to presidential elections, namely the
● national nominating conventions,
● fall general election campaign period,
● Election Day on the Tuesday after the first Monday in November,
● meeting of the Electoral College on the first Monday after the second Wednesday in December,
● counting of the electoral votes by Congress on January 6, and
● scheduled inauguration of the President and Vice President for the new term on January 20.

Any attempt by a state to pull out of the compact in violation of its terms would violate the Impairments Clause of the U.S. Constitution and would be void. Such an attempt would also violate existing federal law. Compliance would be enforced by Federal court action

The National Popular Vote compact is, first of all, a state law. It is a state law that would govern the manner of choosing presidential electors. A Secretary of State may not ignore or override the National Popular Vote law any more than he or she may ignore or override the winner-take-all method that is currently the law in 48 states.

There has never been a court decision allowing a state to withdraw from an interstate compact without following the procedure for withdrawal specified by the compact. Indeed, courts have consistently rebuffed the occasional (sometimes creative) attempts by states to evade their obligations under interstate compacts.

In 1976, the U.S. District Court for the District of Maryland stated in Hellmuth and Associates v. Washington Metropolitan Area Transit Authority:

“When enacted, a compact constitutes not only law, but a contract which may not be amended, modified, or otherwise altered without the consent of all parties.”

In 1999, the Commonwealth Court of Pennsylvania stated in Aveline v. Pennsylvania Board of Probation and Parole:
“A compact takes precedence over the subsequent statutes of signatory states and, as such, a state may not unilaterally nullify, revoke, or amend one of its compacts if the compact does not so provide.”

In 1952, the U.S. Supreme Court very succinctly addressed the issue in Petty v. Tennessee-Missouri Bridge Commission:
“A compact is, after all, a contract.”

The important point is that an interstate compact is not a mere “handshake” agreement. If a state wants to rely on the goodwill and graciousness of other states to follow certain policies, it can simply enact its own state law and hope that other states decide to act in an identical manner. If a state wants a legally binding and enforceable mechanism by which it agrees to undertake certain specified actions only if other states agree to take other specified actions, it enters into an interstate compact.

Interstate compacts are supported by over two centuries of settled law guaranteeing enforceability. Interstate compacts exist because the states are sovereign. If there were no Compacts Clause in the U.S. Constitution, a state would have no way to enter into a legally binding contract with another state. The Compacts Clause, supported by the Impairments Clause, provides a way for a state to enter into a contract with other states and be assured of the enforceability of the obligations undertaken by its sister states. The enforceability of interstate compacts under the Impairments Clause is precisely the reason why sovereign states enter into interstate compacts. Without the Compacts Clause and the Impairments Clause, any contractual agreement among the states would be, in fact, no more than a handshake.

toto said...

A constitutional amendment could be stopped by states with as little as 3% of the U.S. population.

allanm051 said...

This is all very well. My comment is still valid. This project does not abolish the electoral college, it perpetuates it. While the project establishes a six-month blackout period when the states may not withdraw from the compacts, the states still have plenty of opportunities to withdraw. If enough of them withdrew, the electoral college would be restored in all its dreadful glory.

As you say, all rules affecting presidential elections have been enacted at the state level. This is partly because the Constitution is so difficult to amend. Right now, other groups are preparing to use the electoral college to assure that only Republicans can win the presidency. Some states have proposed voting by districts to assign electoral votes.

Already gerrymandered congressional districts have made it extremely difficult to elect a Democratic party majority in the House of Representatives. This problem would not be fixed by the National Popular Vote bill.

The National Initiative Amendment (NIA) would make it easier to change the Constitution, which is the source of the inequities you address in your Bill. When the NIA passes, you will find it possible to abolish the electoral college. The National Popular Vote Bill will not make it easier to outlaw gerrymandering congressional districts, or forbid voter suppression.

In the past, the forces of repression have found clever ways to work around Constitutional amendments with which they disagreed. These workarounds have included decisions by prejudiced judges and laws passed by legislatures dedicated to eroding an amendment. The current US Congress is dedicated to thwarting the will of the people as expressed in the last election. The popular vote bill will not address this issue.

The US Constitution needs a thorough revision to bring our government into the 21st century. The National Popular Vote bill, though admirable in itself, would not address any of the other issues I have mentioned on my blog.

Thank you for your interest and your comments.