Thursday, August 29, 2019

The Early Coup

The Electoral College is a subject that has taken up a lot of space in these pages recently, and the history of that body is instructive as to the impact political parties have had on the operation of our governments. The original concept was that the voters would choose electors, who would then go on to vote for two people. The person receiving the most votes (if a majority) would become the President, and the runner-up would become the Vice-President. [1]
If there are no parties, such a system makes intuitive sense. But with partisanship infecting our politics it is clear that the President would likely end up with an oppositional Vice-President under such a system; and with a two-party system that result would be inevitable.

And political parties arose early in the history of the Republic. In the 1800 presidential election, Thomas Jefferson and Aaron Burr received “tie votes in the electoral college, thus throwing the selection of a President into the House of Representatives, despite the fact that the electors had intended Jefferson to be President and Burr to be Vice-President.” [2] The result was the Twelfth Amendment, which provided that the electors would vote for President and Vice-President separately.
Thus, the political parties took over the United States, and so it has been since that time. But that was not the intention of the Framers. As George Washington said about political parties in his Farewell Address:

“This spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. It exists under different shapes in all governments, more or less stifled, controlled, or repressed; but, in those of the popular form, it is seen in its greatest rankness, and is truly their worst enemy.

“The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty.

“Without looking forward to an extremity of this kind (which nevertheless ought not to be entirely out of sight), the common and continual mischiefs of the spirit of party are sufficient to make it the interest and duty of a wise people to discourage and restrain it. 

“It serves always to distract the public councils and enfeeble the public administration. It agitates the community with ill-founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot and insurrection. It opens the door to foreign influence and corruption, which finds a facilitated access to the government itself through the channels of party passions. Thus the policy and the will of one country are subjected to the policy and will of another.

“There is an opinion that parties in free countries are useful checks upon the administration of the government and serve to keep alive the spirit of liberty. This within certain limits is probably true; and in governments of a monarchical cast, patriotism may look with indulgence, if not with favor, upon the spirit of party. But in those of the popular character, in governments purely elective, it is a spirit not to be encouraged. From their natural tendency, it is certain there will always be enough of that spirit for every salutary purpose. And there being constant danger of excess, the effort ought to be by force of public opinion, to mitigate and assuage it. A fire not to be quenched, it demands a uniform vigilance to prevent its bursting into a flame, lest, instead of warming, it should consume.” [3]
Alas, Washington’s warning was not heeded, and political parties have completely captured our governmental system. That in our own day our national community has been agitated with the “false alarms” brought about by biased and fabricated news reports, that our country has become infected by “animosity of one part against another,” that our public councils have been distracted, and our public administration enfeebled, will not be doubted by anyone even casually acquainted with our public affairs. 

Perhaps the priority of partisanship was nowhere more glaring than when then Senate minority leader Mitch McConnell (R-KY) (now the majority leader) made his infamous statement, “The single most important thing we want to achieve is for President Obama to be a one-term president.” [4] A strange and counterproductive legislative priority to say the least. But he was only giving articulation to that which has given rise to such phenomena as the Benghazi investigation and the inquiry into whether President Trump conspired with the Russians to take advantage of American gullibility. Party victory has become an end in itself, and supersedes the more serious business of governance. 

Moreover, the situation as it now stands has thwarted the very purpose of congressional representation. Senators and representatives are supposed to represent the interests of their states and districts. Instead, they represent their political parties, and officers are assigned to ensure that party members vote in favor of legislation supported by their leadership. The constitutional design has thus been overthrown.

The critical question, then, is whether the American people will acquiesce to this usurpation, or if some means can be found to overthrow this illegitimate system. Such an effort would be daunting to say the least, particularly since the foxes are guarding the henhouse. But it must be done if we are to have the sort of governance that the constitutional Framers envisioned.

Fans of partisanship should not flatter themselves that the problem will be solved once their party obtains power once and for all. That isn’t going to happen. Political majorities will continue to shift back and forth as politicians persist in failing to deliver on campaign histrionics. Statecraft will continue to take the back seat so long as party victory remains the teleological cause of political effort. 

In the next installment, I will try to make some suggestions for concrete action. In doing so, I will endeavor to be mindful of the political realities that would confront such an effort. At the same time, I hope that I have gone some way toward imparting the urgency of the situation.

Monday, August 26, 2019

Avoiding Secession

The Tenth Circuit Court of Appeals is right; there is constitutionally no way to compel the vote of a presidential elector. [1] All one need do to see that this is the correct result is to look at the operative constitutional provision regarding the appointment of electors:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” [2] (U.S. Constitution, Article II, Section 1


“The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate….” [3] (Id., Twelfth Amendment)

There is no ambiguity here. The manner of choosing electors is determined by the state legislatures, but the presidential votes themselves belong to the electors. If any doubt remains, there is Alexander Hamilton’s description of the process in Federalist No. 68:

“It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture.

“It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.[4]
Therefore, the decision of the 10th Circuit is not an outrageous assault on the effectuality of the popular will, but sound constitutional exegesis. And it may be timely. Hillary Clinton received, nationally, 2,868,691 more votes than Donald Trump in the 2016 presidential election [5] (though no candidate won an outright majority), and one might reasonably suspect that we’re going to see an increase of such outcomes in the future. 

While there may have been wisdom in constructing a presidential election system where a “small number of persons, selected by their fellow-citizens from the general mass,” who would “be most likely to possess the information and discernment requisite to such complicated investigations,” things simply haven’t played out that way. There is no evidence that the electors actually chosen are the best and brightest among us, and one suspects that the general temperament of the country wouldn’t tolerate confiding the election of the President to a select few. We’d need the sort of non-partisan country envisioned by the constitutional Framers for that to work as intended in any event. 

But a system where the President is increasingly elected by a minority of the voters is going to eventually present its own problems. The violation of the one-person-one-vote principle is manifest, and states that continuously find their populations frustrated by the selection process might start giving serious consideration to secession.

The recent Tenth Circuit case, particularly if it is upheld by the Supreme Court, should serve as a wake-up call that constitutional reform is critically necessary. The practical obstacle is that the system currently in place served certain partisan interests, and we have learned not to expect a principled look at the long view from such quarters.

Thursday, August 22, 2019

Stop Picking on Immigrants

Wednesday, the Trump administration “unveiled a regulation to allow it to indefinitely detain migrant families who illegally cross the border.” [1] The Fifth Amendment to the Constitution, meanwhile, prohibits “any person” to “be deprived of life, liberty, or property, without due process of law…,” [2] and it’s difficult to imagine how indefinite detention is going to comply with that requirement.

Some will argue that the Constitution only applies to citizens. But that is just flatly false. The Constitution says “citizen” when it means citizen, and “person” when it means person. 

But we’ll leave that for the imminent litigation to follow, and proceed to the more philosophical question of: why do we bother to have the category “illegal immigrant” to begin with? The United States didn’t have an immigration law until 1875, and that was restricted in scope to certain classes of people. [3]  

People who come to the United States don’t do so because they’re planning an invasion, notwithstanding the hyperbolic political rhetoric we encounter nowadays. They come to the United States because they want to better their lives somehow. That’s not the sort of motivation that is ordinarily ascribed to criminals. Everybody wants to better their lives, and the lives of their families. And some of these people come from truly dreadful places where criminal gangs dominate society.

At the same time, the hiring of undocumented immigrants certainly drives down wages in the United States, and that can’t be seriously advocated as a social benefit. Some companies move their facilities to other countries for the cheap labor, which, alas, is perfectly legal, while others stay at home and save labor costs by hiring undocumented workers. 

It turns out that all “five companies operating poultry plants raided by authorities in Mississippi” recently “violated immigration law by knowingly hiring undocumented immigrants….” [4] But the law prohibiting the hiring of undocumented workers is surprisingly mild. If a “pattern or practice” of hiring undocumented workers is shown, the potential period of incarceration tops out at six months [5], and, as the recent raids in Mississippi have shown, employers aren’t taking that threat with sufficient seriousness. 

The federal sentence for racketeering, by contrast, tops out at twenty years. [6] Perhaps employers would take a potential sentence at that level more seriously. If they did, it would disincentivize illegal immigration from the start, because there would be fewer jobs for those without permission to work in the United States. At the same time, we could leave the immigrants themselves alone. We could stop picking on poor people and remove any purported need for human rights violations at the southern border. Instead. we could visit sanctions on those who cause illegal immigration to happen in the first place.