The Real History of the Electoral College

Note: I’m reposting this from my old blog thanks to renewed efforts to get rid of the electoral college based on faulty premises.

It would take an act of enormous historical illiteracy to end my blogging hiatus. Congratulations are thus in order to the New York Times for providing me with such an example. In an editorial Jay Caruso has accurately labeled “historically inaccurate garbage,” the Times has called for the abolition of the electoral college. In the process of doing so, the Times’ editors reveal an understanding of American history which calls into question whether they’ve even taken high school-level American history classes.

The Electoral College, which is written into the Constitution, is more than just a vestige of the founding era; it is a living symbol of America’s original sin. When slavery was the law of the land, a direct popular vote would have disadvantaged the Southern states, with their large disenfranchised populations. Counting those men and women as three-fifths of a white person, as the Constitution originally did, gave the slave states more electoral votes.

Let’s address the slavery as the reason behind the electoral college argument. The New York Times links to a Time magazine article written by Akhil Reed Amar in which Amar attributes the electoral college’s existence to the advocacy of the slave states. He begins:

Some claim that the founding fathers chose the Electoral College over direct election in order to balance the interests of high-population and low-population states. But the deepest political divisions in America have always run not between big and small states, but between the north and the south, and between the coasts and the interior.

Some “claim” this because, well, it happens to be true. The divide at the constitutional convention was not between slave states and non-slave states,* but rather between large and small states. Remember, the convention kicked off with a presentation of the Virginia plan. This plan, authored in large part by James Madison but presented by Edmund Randolph, set the framework for much of the debate at the convention. Among other things, the plan proposed a bicameral legislature with representation in both houses based on population. The smaller states objected to it, and put forward their own plan. The New Jersey plan called for each state to have an equal voice in the legislature, a la the Articles of Confederation.

* As Caruso correctly notes, at the time of the convention, only a handful of states had even partially abolished slavery, and only Massachusetts had totally abolished it. That’s not to say that New York and South Carolina were equally vested in the continued propagation of the institution, but in 1787 the north-south divide on this issue was not nearly as intense as it would become in future years.

When it came to the large-small divide, there was a mixture of states. The large states included Massachusetts, Virginia, and Pennsylvania – in other words a mix of predominant slaveholding states and anti-slavery states. The small states included Connecticut, Delaware, New Jersey and Georgia – again, a mix of states with different views on slavery. Thus feelings about slavery had little to do with these respective coalitions. So already Amar is off to a poor start in actually grasping the nuances in early American history. But he’s not done.

One Founding-era argument for the Electoral College stemmed from the fact that ordinary Americans across a vast continent would lack sufficient information to choose directly and intelligently among leading presidential candidates.

This objection rang true in the 1780s, when life was far more local. But the early emergence of national presidential parties rendered the objection obsolete by linking presidential candidates to slates of local candidates and national platforms, which explained to voters who stood for what.

Even if one objects to the notion that political parties made this argument obsolete (they didn’t), it’s a bit anachronism to bring this into the debate over the electoral college, since parties didn’t actually exist at the time of the convention, and several of the Framers had rather deeply set feelings against parties (even if they would eventually spearhead the formation of those parties). So dismissing this objection when the reason for its supposed nullification didn’t yet exist is non-sensical.

Although the Philadelphia framers did not anticipate the rise of a system of national presidential parties, the 12th Amendment—proposed in 1803 and ratified a year later— was framed with such a party system in mind, in the aftermath of the election of 1800-01. In that election, two rudimentary presidential parties—Federalists led by John Adams and Republicans led by Thomas Jefferson—took shape and squared off. Jefferson ultimately prevailed, but only after an extended crisis triggered by several glitches in the Framers’ electoral machinery. In particular, Republican electors had no formal way to designate that they wanted Jefferson for president and Aaron Burr for vice president rather than vice versa. Some politicians then tried to exploit the resulting confusion.

Enter the 12th Amendment, which allowed each party to designate one candidate for president and a separate candidate for vice president. The amendment’s modifications of the electoral process transformed the Framers’ framework, enabling future presidential elections to be openly populist and partisan affairs featuring two competing tickets. It is the 12th Amendment’s Electoral College system, not the Philadelphia Framers’, that remains in place today. If the general citizenry’s lack of knowledge had been the real reason for the Electoral College, this problem was largely solved by 1800. So why wasn’t the entire Electoral College contraption scrapped at that point?

The 12th Amendment merely more carefully delineated the presidential and vice presidential election process. It did not amend the electoral college, nor did it necesssarily eliminate the basic need for the electoral college. But Amar knows the real reason the college wasn’t changed: demon slavery.

Standard civics-class accounts of the Electoral College rarely mention the real demon dooming direct national election in 1787 and 1803: slavery.

This sneering dismissal is ironic, as, if anything, slavery’s role in the formation of the constitution is over-estimated. But don’t worry, Amar has a tool at his disposal that most mere mortals who only have taken standard civics classes don’t: google. So Amar no doubt entered into his search “constitutional convention electoral college slavery” and came back with literally the only result that would have populated – a speech given by James Madison in July of 1787 during the convention.

At the Philadelphia convention, the visionary Pennsylvanian James Wilson proposed direct national election of the president. But the savvy Virginian James Madison responded that such a system would prove unacceptable to the South: “The right of suffrage was much more diffusive [i.e., extensive] in the Northern than the Southern States; and the latter could have no influence in the election on the score of Negroes.” In other words, in a direct election system, the North would outnumber the South, whose many slaves (more than half a million in all) of course could not vote. But the Electoral College—a prototype of which Madison proposed in this same speech—instead let each southern state count its slaves, albeit with a two-fifths discount, in computing its share of the overall count.

As I said, this is literally the only time during the entire convention that slavery came up in the context of the election of the executive. Unfortunately for Amar, an actual reading of the entire convention debate outside of this one quote proves that his magic bullet is not so magical.

First of all, some context is in order. Throughout much of the early part of the convention it was assumed the executive would be chosen by the legislature. It wasn’t until about the second part of the convention that the debate really kicked in over the method of selecting an executive.

There were a couple of intertwined debates. Some argued that if the executive were to be selected by the legislature, then he should not be eligible to serve more than one term. If eligible to serve more than one term, then the executive would be beholden to the legislature, and would therefore not be an independent force.

Amar is correct in pointing out that Wilson advocated a popular selection of the president, and his fellow statesman Gouverneur Morris also advocated for a selection independent of the legislature. Many other delegates – both from small and large states, as well as anti-slavery and slaveholding states – scoffed at the idea of any popular participation in the selection of the executive. Elbridge Gerry of Massachusetts insisted on more than one occasion that the general mass of the population were ill-educated and would be easily duped, and as such should have no say in the selection of the executive.

As the debate continued over several days, it was clear that the dividing line was not between slave states and non-slave states, or even large and small states (though that certainly was a part of it), but rather between individuals who had a more populist bent and those whose inclinations were more, shall we say, aristocratic. The debate was in large part a reflection of the general feeling that the mass of citizens did not have the proper qualifications and knowledge to make such a crucial decision. Even those who did not think it proper for the legislature to choose the executive did not openly advocate a popular election.

Enter James Madison. It’s odd, though understandable, that Amar focuses on Madison, as at the time he delivered his speech at the convention cited here he was closer to Wilson than most of the other delegates. The bulk of his speech was actually dedicated to expressing his opposition to the legislative method of choosing the executive. In point of fact, Madison expressed his preference for a popular vote, a preference he repeated at another point in September when the convention made its final determinations. What Amar is quoting is a small section of Madison’s address where he concedes the potential drawbacks to a popular vote. Contrary to Amar’s implication, Madison’s concern was not with how the southern states would be disadvantaged by slavery, but rather the more restrictive franchise requirements that existed in the south. Madison’s argument was that more people would be eligible to vote in the north, irrespective of slavery, thus furthering the imbalance. Madison repeated this point in September, with absolutely no mention of slavery.

Therefore the one and only convention speech Amar points to as proof of his thesis actually contradicts it, at least when read in its entirety.

And that is the entirety of Amar’s argument – this one speech, and the fact that a whole bunch of Virginians were elected president. Nevermind that those Virginians included the man who led our country to independence, the author of the Declaration of Independence, and one of the primary authors of the Constitution and the Bill of Rights. No, it’s all about slavery.

There were literally dozens and dozens of speeches made at the constitutional convention regarding the election of the executive, and one of them contained a passing reference to slavery. Yet Amar, and in turn the New York Times, uses this as justification for contending that the electoral college is completely about defending slave interests. Even if one counters that the framers were too wily to openly state their true intentions, a careful reading of the entirety of the debates shows that the delegates were motivated by completely different factors.

And of course there is one of the most elegant defenses of the electoral college ever made – Federalist 68. In it the author celebrated the electoral college for giving the people a voice in the selection of the president while providing an intermediate body of electors whose judgement would presumably be more discerning. As the author states, it’s all about preserving an orderly process:

It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the President of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief. The choice of several, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements, than the choice of one who was himself to be the final object of the public wishes. And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place.

Now who was the author of this celebrated piece? Why, none other than the bastard, son of a whore and a Scotsman. Yes, the immigrant, New Yorker, and ardent slavery opponent Alexander Hamilton. Somehow I don’t think he viewed the electoral college as a vestige of slavery. But what did he know?

Amar tries to move the goalposts by arguing that even if the electoral college at inception wasn’t about slavery, later events (which, by the way, he completely exaggerates while relying on dubious methodolgies to determine who really should have won the election of 1800) made it about slavery. Now, it’s curious that the institution which made Abraham Lincoln’s ascendancy to the presidency possible should retroactively be seen as a gatekeeper for the peculiar institution, but so be it.

Now let’s get back to the Times. The editors throw in a whole bunch of other familiar arguments about the folly of the electoral college and its unfairness. Since this is strictly an historical post I won’t get into all that, so I’ll let you read the rest of Jay Caruso’s post. I’ll just note that throwing in the slavery non sequitur is nothing more than an attempt to gloss over the weakness of the Times’s overall argument. By continually parotting the historically inaccurate line that the electoral college is all about protecting slavery – an argument repeated by equally historical illiterate leftists on twitter and other platforms – we are supposed to throw away this “ancient” and “outdated” mode of election. Unfortunately these arguments do nothing more than to reveal that those making them don’t even have the first clue about American history and the debates surrounding the constitution, thus making anything else they have to offer of dubious merit.

At the very least we can take confort in the knowledge that people like Akhil Reed Amar have little influence outside the barely-read pages of Time.

Akhil Reed Amar teaches constitutional law at Yale University. This essay borrows from his recently published book, The Constitution Today.

 To quote Dr. Hibbert, upon learning that Homer is working at a nuclear power plant: Oh Good Lord. Although this picture might be more appropriate.
facepalm

The Emergency Order, Bad Arguments, and Logical Fallacies

Now that President Trump has issued the emergency declaration on the wall, I thought I would reiterate something I said multiple times during the Obama administration: there is no “The President thinks something is really really important but Congress won’t act so the President just gets to do whatever he wants” clause in the constitution. The Veruca Salt standard simply doesn’t exist. While I think the Democrat opposition to the wall is overwrought (and indeed now some have even indicated they want to remove the border barriers that doers exit), President Trump has had ample time to secure additional border wall funding. A changeover in Congressional leadership doesn’t constitute a national emergency.

I wanted to take the bulk of this post to address some of the responses I’ve seen, both in opposition and in defense of this action.

I’ll start with one argument made by opponents of the move that I deem to be overstated. They argue that this will set a precedent for future Democratic presidents to declare national emergencies over, say, climate change and healthcare*. There is a little bit of truth to this – as I said on twitter, each new precedent has a bit of snowball effect. But when looking at the cast of characters which constitutes the current Democratic presidential field, who doesn’t think that one of them will do this anyway? President Obama’s DACA order was arguably even less meritorious than President Trump’s actions here (where exactly was the crisis in not providing legal status to the children of illegal immigrants?), and it was President Obama who uttered his petulant “I’ve got a pen and a phone” threat when he grew frustrated with the constitution’s pesky limitations. If anything, Democrats have grown even more radical, and I don’t think President Trump increases the likelihood of future despotic actions.

* I’ve seen more than a few tweets in recent days about 28 million uninsured Americans being a graver national emergency. But I’m confused: wasn’t Obamacare supposed to solve this problem? I thought Obamacare was a “big fucking deal.” Well if there are still 28 million uninsured, maybe it was really nothing more than a “little useless clusterfuck.”

The flipside of the above is the argument from defenders of the administration is that we already have precedent, so Donald Trump’s actions are not unprecedented. Again, there’s an element of truth here, but that doesn’t make right-wing defenders of the president any less hypocritical. If you were (rightly) crying bloody murder every time President Obama used his pen and picked up his phone, you cannot now defend President Trump doing the same. If the “but daddy I want it” justification for emergency declarations is pathetic, even worse is the “but mommy he did it first” defense of the declaration. Speaking of setting precedents, you now have sent a clear message that the right-side of the political spectrum is cool with unilateral, unconstitutional, and unlawful presidential declarations so long as the end-result is fine by you. That seemingly less than about ten percent of the American public consistently even cares about constitutional law is indeed depressing.

As for the unlawful part of this, defenders say that “hey, Congress set us on this path, and the president is just doing what’s in his legal authority.” I’m not one to shy away from blasting Congress for cowering in fear to assert its rights as the superior  branch of the federal government, but I am not persuaded that the president is acting within the very generous parameters laid out by Congress. As David French explains in National Review, this is an abuse of the statutory authority given away by Congress.

Look at the list carefully. He’s listing criminal challenges. He’s listing humanitarian challenges. He’s listing the problems on the border that have existed for decades and that Congress has enacted comprehensive statutory schemes (including funding civilian wall construction and civilianimmigration authorities) to combat. Gang activity and drug-smuggling are grave problems, but they are crimes, not acts of war. The declaration doesn’t even try to argue that there is a precise, unique challenge that only the military can counter — such as a national disaster that would require the use of the military’s unrivaled heavy-lift capabilities or its immediate access to manpower.

Instead, the declaration cites the wasteful 2018 border deployment, but that is only evidence that the military has been used, not that it must be used. If the mere fact of a deployment were proof of the necessity of military intervention, then there would be no limiting principle on a president’s action. The message is clear — the military is “required” simply because he says it is required.

I was called a “neocon” on Twitter for having the temerity to argue that the president has no constitutional or statutory authority to justify issuing this emergency declaration. It is a sign of the lack of intellectual heft of much of the populist right that they believe defending constitutional norms is a sign of “new” conservative thinking.

I guess I could just sit back and laugh when President Harris issues a presidential emergency declaration shutting down the health insurance industry and forcing all Americans onto Medicare. It could be humorous to see the contortions of the overwhelming majority of Americans suddenly switching their opinions on such declarations. Instead I’ll just weep as our constitution becomes all but a dead letter.

Democrat Party Priorities

Earlier this week, Virginia legislator Kathy Tran pushed legislation to liberalize Virginia’s abortion laws and to do away with even the minimal restrictions on third trimester abortions. In support of Tran’s effort, Governor Ralph Northam had this to say in response to a question about the availability of abortion in the case of a child who has actually been born:

This is why decisions such as this should be made by providers, physicians, and the mothers and fathers that are involved. When we talk about third-trimester abortions, these are done with the consent of the mother, with the consent of physicians, more than one physician by the way, and it’s done in cases where there may be severe deformities, there may be a fetus which is non-viable. So in this particular example, if the mother is in labor, I can tell you exactly what would happen, the infant would be delivered, the infant would be kept comfortable, the infant would be resuscitated if this is what the mother and the family desired, and then a discussion would ensue between the physician and the mother.

This stance is an extreme one even in the Democratic party. Yet here is a full rundown of all the major Democratic party players in response to Northam:

(crickets)

On Friday, a photo emerged that showed Northam’s medical school yearbook page. Among the items was a photo of two individuals, one in black face and the other in a KKK robe. Presumably one of the two individuals was Northam. On Friday night, Northam apologized, but then on Saturday he backtracked in one of the weirdest press conferences in world history. He claimed that neither of the two individuals was he, and he also suggested that there be a facial recognition scan – how a facial recognition scan be done on a hooded figure is a mystery. He did say he had actually worn blackface for a Michael Jackson dance contest, and then came a bizarre explanation of having to apply shoe polish. There was even a moment during the presser where it seemed Northam was set to moonwalk before his wife reminded him where he was.

When it came to chastising Northam for the yearbook catastrophe, there has been no shortage of Democrats who are now calling for him to resign. Here is a rundown of just some of the Democratic presidential candidates condemning Northam and calling for him to step down.

Meanwhile, here is Hillary Clinton:

Other prominent Democrats have also chimed in and called for Northam to step down.

This has been a rather revelatory moment in American politics, and it has shone a bright line on the soul of the Democrat party. A governor defending infanticide draws absolutely no criticism, yet the revelation that this same individual may have posed for a racist photo 35 years ago means he should be cast into the exterior darkness.

Even if one concedes that silence does not connote support for Northam’s abortion stance, the comparative reactions to these two events should make abundantly clear where the Democrat party’s priorities lie. In a sad way, had Democrats stood by Northam they would be less morally repugnant. But their manifest lack of interest in condemning infanticide (if not outright support) is brought into clear relief when contrasted with their unified reaction against a man posing for a racist photo three and a half decades ago.

While we might applaud the Democrat party for coming a long way since their adulation for a man who spent many a day wearing the klan robe, it’s unfortunate they are less concerned about respecting the rights of at least one class of humans.

What An Incredibly Stupid Week

I’ve said I hope to refrain from discussing current events on this blog, or at least reacting to every news story other than to talk about larger constitutional and philosophical principles surrounding them. One of the reasons is my complete frustration with the state of the media and how things are reported, and what stories are reported. This past week served as confirmation of at that approach. Let’s recap the week that was, where things just dumber each day.

First, there was this Gillette toxic masculinity ad, which I think became viral late Sunday or last Monday. This is one of those moments where the reaction to it, and then the reaction to the reaction were more the story. Count me among those who just gently shrugged his shoulders at it. I can see what Gillette is trying to say, though why a razor company feels obligated to spread the message is beyond my poor ability to comprehend. Perhaps the reaction to it would have been more muted had it not come on the heels of the idiotic APA guidelines on “toxic masculinity.” I have only daughters, but I’m more afraid of them coming home with any of these guys than that I’m going to confront some toxically masculine son-in-law.

And then it got dumber from there.

President Trump then had the temerity to buy fast food and serve it in the White House to the National Champion Clemson Tiger football program. He said the government shutdown meant his cook staff couldn’t prepare a meal, so he bought a whole bunch of Burger King, McDonalds, and Wendy’s. I think the most overwrought reaction to this were those who claimed this proved that the president was a racist – because I guess only non-whites eat fast food and no member of the Clemson team is white. Amazingly this dominated the next two days of the news cycle, because we just needed to hear every possible analysis of just how wrong it was for the president to serve fast food to probably the only set of humans who can afford to eat fast food calorie-wise – athletes.

This was only displaced in the news cycle when BuzzFeed published a story by Jason Leopold claiming he had seen evidence proving President Trump had directed Michael Cohen to lie about the Russia investigation. Most sensible people waited for confirmation of the story, while others put on their impeachment party hates and started counting the days to his big Senate trial. But the story never was confirmed, and Robert Mueller’s office responded, saying “BuzzFeed’s description of specific statements to the special counsel’s office, and characterization of documents and testimony obtained by this office, regarding Michael Cohen’s congressional testimony are not accurate.” This may seem like a non-denial denial, but I have to question why the Special Counsel’s office would have responded if the report were completely true. I don’t think this completely forgoes the possibility that Trump will wind up in legal hot water, but at this point BuzzFeed’s credibility should, again, be called into question. Still no other outlet has come forth to corroborate this story, and it seems more likely than not that this a nothingburger.

But that was all just the warmup for the stupidest, most despicable event of the week. Fortunately for me I was at a family event on Saturday, and thus could only briefly scroll through Twitter and Facebook. Therefore, I only saw some mentions of the altercation that had taken place near the Lincoln Memorial for the March for Life. So when I finally had an opportunity to sit down and watch the videotape, much more evidence had emerged. Some things became immediately obvious to me. First, there were no chants of “build the wall.” It’s possible some voice shouted that at some point, but it’s not clear who or even if that’s what was said.

Second, the original story of some high school kids getting in the face of a lone Native American protester were manifestly untrue. The longer videos clearly show it was the black Israelite* organization who were hurling all sorts of racist, homophobic, and other slurs at the boys, not the other way around. Then Nathan Phillips entered the fray, and things did not de-escalate, though that was his stated purpose for walking up to the group.

*: Just to be clear, that’s what they call themselves. I once saw them in New York, and as I called them by that name in response to a friend who asked me who they were, some woman chided me for using a supposed slur. 

I’m not going to recount everything that happened. By now I’m sure anyone reading this has already seen the videos or is familiar with what took place. Robby Soave has one of the most detailed and accurate assessments.

As I said, I fortunately came to this story a day late, so didn’t have the opportunity to opine about matters before more details became available. Others, however, were quick to condemn the kids, especially Nicholas Sandmann, who emerged as the Emmanuel Goldstein of the weekend. I’ve never heard of a Nazi smirk, but he has one according to the bright lights of the internet.

The treatment of Mr. Sandmann is particularly galling when you consider that he acted more responsibly than any other human being in this affair. There’s even a point, caught on video, where he clearly signals to one his classmates to knock it off when said classmate began getting into it with one of the other protesters. Rather than representing the smirking face of hate, Sandmann was a young man who showed great resolve and fortitude in the face of – let’s call it what it is, hatred.

There are numerous takeaways from this event. Perhaps none are as important as this: maybe wait a moment before posting your social media hot take. It’s true that waiting for “all the evidence” to come in may entail literally waiting forever, but it couldn’t hurt to wait for more than one initial viral video.

But at least some who initially attacked the boys repented and apologized when moire evidence started coming in. Others, however, just dug in their heels. Either they’re lying about seeing the longer videos, or else these people are so blinded by their ideological hatreds that they refuse to see truth when it is literally in front of them.

There are many to blame in this fiasco, and few who come off well. Let’s start off with who deserves the least amount of blame or hate: the aforementioned Nicholas Sandmann. As for the bulk of his classmates, I’m starting to take the position that they, too, largely acted well. Did some of them act foolishly and respond poorly to some of the antagonism? Perhaps, but how should a 16 or 17-year old respond when a bunch of nutjob racists are yelling at you, or some other weird dude begins playing a drum in your face? As for the MAGA hats, this is the only semi-legitimate criticism, but only insofar as wearing any partisan political regalia should be frowned upon at the March for Life because we want to try to keep partisanship out of the event as much as possible. But the idea that the hats themselves are inherently bad or equivalent to a Klan hood, as was repeated throughout the Twitterverse, is obscenely stupid.

Next up, we have the chaperones. I have not heard a satisfactory answer to where they were during this. Could any of them have stepped up to protect the boys, or did some try only to be shouted down? This is one part of the story I’d like to investigate further before passing judgment.

Nathan Phillips, meanwhile, at best exaggerated his role in this or just blatantly lied, intimating that he went in there to play peacemaker, when it is clear he was dead set on stirring up the agitation. Of course, the black Israelites are the worst direct actors in this story. They are an insane group of angry bigots, and anyone attempting to defend them in any way should be shunned.

Then there’s the media. Oh, suddenly they had something to report on during the March for Life. Let’s ignore those anti-Semites marching in Washington the very next day, we’ve got some southern, Catholic, white boys to demonize. It took most major media outlets a full two days before some of them started to say, “Hey, maaaaaaaybe we kinda sorta got this one completely wrong.”

But I reserve my greatest ire for both the school and for the archdiocese of Covington, with special mention for the archdiocese of Baltimore. These venerable institutions wasted no time in throwing these students under the bus. What’s more, when the situation began clearing up and the real news began trickling in, they failed to retract their earlier groveling statements. Only very recently did the Archdioceses of Baltimore and Covington walk back a little bit, but only through mealy-mouthed statements saying that they were “investigating” the incident. What’s there to investigate? It’s the same mealy-mouthed shit being spewed by Fr. Jim Martin, who refuses to fully apologize for throwing stones at these boys, and instead chooses to offer passive-voiced, conditional-laden non-apology apologies.

Amy Welborn has more to say about Jim Martin and that other noted guardian of charitable speech, Mark Shea. Donald McClarey, meanwhile, has noted the cowardice of Archbishop Joseph Kurtz of Louisville and his failure to retract his earlier condemnatory comments.

For those who are not fans of harsh language, I advise you to skip this next paragraph.

Hey, assholes, you know how you buried your heads in the fucking sand while your colleagues were out there diddling boys and seminarians, and how you continue to evade all sense of responsibility? Yeah, you might want to think twice before you trash faithful Catholic boys and men before all evidence comes in. But I guess you don’t much care about evidence, because you obviously didn’t give two shits while seminarians were telling you what was happening inside the walls of your seminaries. So the next time you mail your pleas for your archdiocesan appeals, just know the envelopes and the papers inside are going to be used for their only useful purpose: toilet paper.

Ahem. So that’s where we are. The only confident prediction I will offer from all this: we will learn absolutely nothing from this.

What’s a Little Article V Among Friends?

 .  . . and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. – Article V, U.S. Constitution

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. – 17th Amendment of the U.S. Constitution

Even a curmudgeon like me will concede that not all debates over constitutional meaning are crystal clear. Interpreting original meaning (or intent, if you prefer) can be difficult. Trying to determine whether the freedom of speech clause of the first amendment really applies to political donations, or whether the first amendment even applies to the federal government at all, is not necessarily black and white.

But then there are certain clauses which are really not open to interpretation. There’s no creative way to argue that a 31-year old man born and naturalized in France is eligible for the presidency. Similarly, the equal composition of the Senate is laid out in black and white throughout the constitutional text. More importantly, this is one element of the constitution that cannot simply be amended by the traditional process. As laid out in Article V of the U.S. Constitution, no state can be deprived of equal suffrage in the Senate without its consent. This means that for all practical purposes equal suffrage in the Senate cannot be altered unless every single state assents to this change, which really means that equal suffrage in the Senate cannot be altered. This would seem pretty straightforward.

Not if you’re a writer for the Atlantic with a day job teaching Legal Studies at Business Ethics at Wharton, because Eric Orts has a proposition for you: we’ll just legislate this pesky hindrance away. No, seriously:

There’s a better, more elegant, constitutional way out. Let’s allocate one seat to each state automatically to preserve federalism, but apportion the rest based on population. Here’s how.

Start with the total U.S. population, then divide by 100, since that’s the size of the current, more deliberative upper chamber. Next, allocate senators to each state according to their share of the total; 2/100 equals two senators, 3/100 equals three, etc. Update the apportionment every decade according to the official census.

In the new allocation, the total number of senators would be 110. The total is more than 100 because 10 of the smallest states have much less than 0.5/100 of the U.S. population but are still entitled to one senator each.

So how do you get out of the clear constitutional prohibition against this change? Legislation, of course:

First, consider that Article V applies only to amendments. Congress would adopt the Rule of One Hundred scheme as a statute; let’s call it the Senate Reform Act. Because it’s legislation rather than an amendment, Article V would—arguably—not apply.

Second, the states, through the various voting-rights amendments—the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth—have already given their “consent” by directing Congress to adopt legislation to protect equal voting rights, and this delegated power explicitly applies to “the United States” as well as the states. The Senate Reform Act would simply shift seats according to population. No state or its citizens would lose the franchise.

Note that even states that did not ratify the voting-rights amendments have, functionally, consented to them, and thus also to the constitutional logic supporting a Senate Reform Act. As Justice Clarence Thomas explained in 1995, “The people of each State obviously did trust their fate to the people of the several States when they consented to the Constitution; not only did they empower the governmental institutions of the United States, but they also agreed to be bound by constitutional amendments that they themselves refused to ratify.”

There are so many logical problems with this that you can drive a truck through them, and fortunately Charles Cooke has done the job natural-born Americans won’t do:

Never in the history of the English language has the word “arguably” done as much work to support the sentences around it. And never, ever has it been so cruelly exposed to ridicule. On Orts’s rationale, Congress could amend any part of the Constitution by legislation. Want to abolish the First Amendment? Just pass the repeal through Congress on a simple majority vote. Easy! That the various branches of government are formed by the Constitution itself — and, by extension, that they cannot amend their own structure without that Constitution being amended — is the most elementary rule in all of American law. It cannot be undone by wishful thinking. Indeed, if anything, the Senate’s structure is the most permanent variable in the entire U.S. Constitution, given that it not only enjoys the same protection as everything else, but has an extra layer on top that ensures that any alteration be made with the consent of those directly affected. For Orts to treat the most heavily guarded item within the document as if it were the most easily circumvented is nothing less than extraordinary, and suggests to me that he believes his audience is stupid.

As to point two:

Even for those of us who are accustomed to learning in awe about the many innovative policies the architects of the Reconstruction Amendments intended secretly to mandate in the future, this one is a doozy. Insofar as it can be followed, Orts’s case here is that (a) the Constitution protects equal voting rights, (b) that, in his view, the Senate does not protect equal voting rights, so (c) the Constitution mandates that the Senate be altered — presumably via the “arguable” legislative method outlined above. Historically, legally, and linguistically, this approach is bizarre: If the framers of the “Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth” amendments had wanted to abolish or amend the Senate, they would have done so — or, rather, they wouldn’t have done so, because their amendments would have failed spectacularly at the first hurdle. Worse still, it is extremely dangerous, for if Orts’s approach were to be indulged, we would quickly move so far beyond both the security of both stare decisis and plain language as to invite endless, untrammeled chaos. Why? Well, because one can play his game with anything. First, you find a part of the Constitution that guarantees a favored end — say, “establish justice,” “promote general welfare,” or guarantee “freedom of the press”; then you contend that this end is incompatible with any other provision you happen not to like; and, finally, you explain that the provision you dislike is itself unconstitutional. At best, this method represents cheap sophistry. At worst, it represents anarchy. Again: “Our Constitution is more malleable than many imagine” is a euphemism for “We must ignore the law as it is written.”

Now take it home Charles:

But we must not, of course. Rather, we must ignore Orts, and we must push back against people who believe their job is to rewrite history and to misinform on a grand scale. I can see why certain professors feel the need to do this: Absurd as his cases always are, my proverbial Grunton Rabitini of Soiled Woods College has his words repeated widely by the unprincipled and the uninformed. But I cannot see why The Atlantic needs to publish it. We have a civics problem already in this country. Professor Orts and his editors just made it that little bit worse.

Unbelievably, Orts tried to fight back on Twitter, spending most of the time (incorrectly) complaining that Cooke failed to substantively address any of his points, relying instead on personal attacks, even as Orts accuses Cooke of taking his position because of “white privilege.” Even by the usual dumb standards of Twitter it was pretty horrific.

It’s sad to recall that Orts is an actual professor who teaches college students, because his understanding of constitutional law couldn’t be much dimmer than his average student.

The Left’s Ill-Gotten Gains

I’m short on time for the next couple of days, so I won’t be able to post anything of substance. In the meantime, here’s a Kevin Williamson post which, as almost always, cuts to the heart of a matter. The left has been far more reliant on the Court to uphold rights it views as intrinsic, and that’s what scares them so much about the future of the Court.

And that is what terrifies the Left about the current direction of the Supreme Court. Roe v. Wadere presents ill-gotten political gains. While the NRA got a big win in the courts a few years back — one entirely in keeping with the actual text of the Constitution as it exists, not as progressives wish it were — it mainly has advanced its agenda and defended its agenda and defended its gains through ordinary democratic politics. It is not, contrary to the myth, a particularly big political donor or spender (not even in the top 100 last I checked) that gets things done by throwing money around. Until its recent (and, in my view, ill-advised) metamorphosis into a full-spectrum culture-war outfit, the NRA was a very disciplined and narrowly focused single-issue outfit, which made it truly bipartisan: Harry Reid may have been a train wreck on 99.99 percent of the issues, but he was solid on guns, and the NRA credited him for that.

NARAL and Planned Parenthood, who together form what we might understand as the NRA of abortion rights, are above all things terrified that they might be reduced to ordinary democratic political activism in a post-Roe world. They want to defend those ill-gotten gains, and they understand that the American consensus on abortion is a lot closer to the thinking of, say, George W. Bush than it is to that of the butchers’ guild. There is volatility in the polling, but by and large Americans take a pretty liberal view of abortion in the first trimester and in cases involving rape, incest, or serious threats to the health of the mother; they are open to many kinds of restriction and take a much more restrictive view as the pregnancy advances. If democratic preferences prevail, it is likely that U.S. abortion regulation will end up looking something more like what prevails in much of Europe. Not as restrictive as pro-lifers would like, but more restrictive than what we have.

Read the rest at the link I provided.

Thanks, Maxine

I mean if stunts like this are effective, why not keep repeating them?

Republican Maryland Rep. Andy Harris was reportedly assaulted by protesters inside of his office on Capitol Hill on Tuesday.

According to Jennifer Bendery, a reporter for The Huffington Post, the Capitol Police confirmed that protesters pushed in the door to Harris’ office and assaulted the congressman.

“Harris was trying to hold his office door closed but was not successful,” Bendery tweeted. “Also the demonstrators were smoking weed.”

Wait, they were smoking weed? Isn’t weed supposed to make you mellow?

Sadly, we’re almost certain to see more of this.

Update: Turns out they may be pro marijuana protesters.

 

https://platform.twitter.com/widgets.js

Again, pot is supposed to make you mellow.

The Kavanaugh confirmation circus has amped up tensions, but this is a good reminder that we reached a fevered state long before the Kavanaugh nomination.

Orval Faubus Comes to California

Though certainly not nearly a sentiment shared by most conservatives, some have suggested that the proper response to judicial overreach is to simply ignore the courts. In other words, for example, Donald Trump should have made like Andrew Jackson when his travel ban was put on hold and declared that “The Ninth Circuit has made its decision, let them enforce it.”*

More popular on the right – though again, not necessarily a majority opinion – is the concept of nullification. According to this theory, states are within their constitutional rights to ignore federal law that is facially unconstitutional. Thomas Jefferson justified this concept in his draft of the Kentucky Resolutions  (in response to the alien and sedition acts), though Madison did not go so far in the Virginia Resolutions.

Both sentiments are put forward as proof as the recklessness of the right. Furthermore, the intransigence of certain states righters is historically symbolized by the likes of Orval Fauvus, who defied the Supreme Court’s order to desegregate public schools. Thus these concepts are tied with the forces of evil and racism.

So which state is actively engaged in both nullification and defiance of court orders? Alabama? Mississippi? Texas? Look away, look away, look away, it’s California.

That’s right. Not only is California acting in de facto nullification by prohibiting all local governments from cooperating with federal officials to uphold immigration law, the state is now ignoring a court order barring the state from enforcing this statute upon charter cities who refuse to be sanctuary cities.

Despite an Orange County judge’s ruling this week that California’s so-called sanctuary protections for immigrants who are in the country illegally are unconstitutional as they apply to charter cities, state Atty. Gen. Xavier Becerra said Friday that the state would continue to uphold its laws.

“Preserving the safety and constitutional rights of all our people is a statewide imperative which cannot be undermined by contrary local rules,” Becerra said in a statement. “We will continue working to ensure that our values and laws like the California Values Act are upheld throughout our state.”

SB 54 is the law in question here, and I don’t see how it can be viewed as anything but nullification. In essence, California is saying it will not comply with federal law. Or, to put it a bit differently, it will refuse to cooperate with enforcement of federal law. Not only that, but it has prohibited municipalities from even thinking of cooperation.

More troubling, though, is the state’s ostentatious “eff you” to the ruling issued last week exempting charter cities in the state from the law. Not only will the state refuse to comply with the feds, it’s bluntly saying that no court will make it respect the will of resident in any locality which chooses not to participate in California’s defiance.

Most Californians vociferously denounce the supposed tyranny of President Trump, yet he has done nothing even remotely as brazen as this.

I must also chuckle at Becerra go on about “preserving” the “constitutional rights” of all Californians. So the constitutional rights of illegal aliens must be upheld, even though they possess no such rights. As for the lawful citizens of their state, such constitutional guarantees as the right to a republican form of government can safely be ignored.

And people wonder why much of the country looks upon California with disdain.

*It is not certain Andrew Jackson actually said this famous quote about Marshall, but the sentiment was a historical fact.

Power Politics

There is a political party in America where a not inconsiderable number of its members evidently believe that the FBI is staffed by infallible men who have superhuman like abilities to discover the truth of accusations, even into areas over which they have no jurisdiction, and who also implicitly think that any man accused of rape is guilty until proven innocent.

The new law and order party: the Democrats of 2018.

Let me tackle the somewhat less serious issue first. The mantra, repeated endlessly for the past two weeks, is all we need to do to get to the bottom of the allegations against Brett Kavanaugh is have the FBI investigate. Nevermind that the allegations do not involve a federal crime, or that Kavanaugh has been investigated (so to speak) multiple times by the FBI due to the positions he has held or has been nominated for. No, that’s not enough. Only the FBI has the authority and skills to determine the truth.

AG Conservative explains why this is all a load of bunk better than I can. Long story short, Congress is itself an investigative body. An FBI investigation will yield nothing that has not already been revealed. This is nothing more than a delaying tactic, but it’s a farce we’ll have to endure for another week to satisfy the man from Arizona with the spine of jell-o.

As for the #BelieveSurvivors contingent, this is a bit more delicate. Women who bring forward rape allegations should not be ceremoniously disregarded or mocked (though the allegations brought to light by porn lawyer Michael Avenatti are so bizarre they may merit being disregarded out of hand). A woman should not be made to feel like her life is threatened were she to bring forward an allegation or charge.

But the idea that all women should be entirely believed automatically is another. Of course, the logical corollary to “the accuser should be believed” is not necessarily “the accused is therefore guilty.” Even if one believes some kind of attack happened to the accuser, there could be any number of lapses in memory that mean the accused is not the guilty party. Leaving that aside, though, in today’s world “believe the accuser” is de facto “assume the accused is guilty.” And that is grossly unfair both as a matter of law and social construct.

One of the more repugnant critiques of any attempt at defending Kavanaugh is to say that this is merely a “job interview,” not a trial. Once again, the aforementioned AG Conservative is a good source for rebuttals to this argument. Of course Kavanaugh is not entitled to the Supreme Court seat, nor is the bar as high in assessing his guilt or innocence as high as it would be if he were on trial. But that does not mean the burden of proof is flipped and the presumption of guilt hold sway until he somehow prove his innocence beyond a reasonable doubt.

For Brett Kavanaugh, more than just a job is at stake. His reputation has already been sullied, and if his nomination were to be withdrawn “just to save face,” the presumption of guilt will linger for the rest of his life. Indeed, for millions he is already assumed to be guilty, but that is their problem. It is not right to have a man be considered an attempted rapist just because of the existence of the accusation. And if you think that all the other facts of his life make this a consideration not worth keeping in mind, then I would like to see how you treat a false accusation leveled against you.

Another issue with this presumption of guilt (or automatic belief in the veracity of the accuser’s claim) is that is has put sexual assault crimes in a special category. If Brett Kavanaugh had been alleged to have gotten drunk and assaulted one of his classmates, I don’t think we’d be seeing a “believe the man” campaign. Even granting that sexual assault or rape are much more traumatic for the victims and meriting of special scorn (and I do grant that), that does not mean all the rules of due process fly out the window only for crimes of a sexual nature.

Over the past few months I have been listening to the Constitutionally Speaking podcast, and it’s made me look more closely at the ratification debates. The lack of a guarantee of jury trials in civil cases, and the lack of a bill of rights including a due process guarantee are among the most important causes of opposition to the constitution. This recognition of the vital importance of due process is not just some legal mumbo jumbo applicable solely to defendants at court. It is a reflection of the importance our society places on fair play. Indeed our country’s abandonment of that principle with regards to certain segments of society is rightfully seen as one of the primary blots on our nation’s history. Funny that the people who are quickest to condemn our country’s past for failing to live up to this ideal are the ones loudest in their condemnation of Kavanaugh.

For too long conservatives have been too quick to believe men in badges, and have also tended to be the quickest in assuming the defendant in a trial is guilty before all the evidence comes in. That has been changing over the past few years, at least in certain conservative circles. More conservatives are coming to appreciate the importance of respecting the rights of the accused – and even the condemned, at least when it comes to conservative embrace of prison reform. Most conservatives (though sadly not enough) rightly were outraged at the murders of Philando Castile and Botham Jean, and though we may debate some of the elements of #BlackLivesMatter, there’s a growing appreciation of the extreme fallibility of men and women of the law.

So that makes these recent developments all the more chilling. The left is becoming more comfortable with goon-like tactics while abandoning the concept of due process.

I think there’s a name for that.