We, the People of the United States (concluded)

The People of 1787 chose a system that effectively binds us on how our president is to be chosen, but that method most often resulted in a president who has received the greater support from the voters. The People of 1787 also chose a national legislature that is not representative of the majority of the country’s people. And the People of 1787 expressly forbade later generations from changing an essential component of the legislature so that our national laws might truly reflect the consent of the governed.

Both the House of Representatives and the Senate must pass a bill for it to become law. The Constitution chosen by the People of 1787 provides that the House must be apportioned according to population. While this apportionment and the resulting House elections may be imperfect, we can say that the House represents the People. The governed have given a consent when the representatives act. But what about the Senate? Each state, no matter the number of people in that state, gets two Senators. In essence, the citizens of Wyoming, the least populated state, has sixty times the representation in the Senate as do the citizens of California. There were understandable reasons why the People of 1787 chose this constitutional construction, but would the People of today do so?

If we were setting out to form the government today, we might opt for the direct election of the president, and while amending the Constitution to reach that result is almost impossible to accomplish, it is theoretically possible. It is harder to conjecture what the People of today would choose if they wanted to change the basic composition of the Senate. But there is no point in even contemplating it. Under our Constitution, we are forbidden from changing equal representation in the Senate for each state.  Article V of the Constitution, which defines the amendment process, prohibits altering the Senate by stating “that no state, without its consent, shall be deprived of its equal suffrage in the senate.” Wyoming can always have representation in the Senate equal to California. Delaware can always have the same number of Senators as Texas.

The People of 1787 made it impossible for the People of any later time to reconsider this basic aspect of the Senate that gives more powers to some citizens than others.. The People of the eighteenth century prevented the People of today from deciding for themselves how the consent of the governed should be determined.

When we take pride in announcing that the United States is a government of “We, the People,” we should realize that the extolled People are often not us, but those from long ago. In crucial ways, the sovereign of this country may no longer by King George III, but it is the Americans of George’s time who are sovereign over us. We may not be controlled by a live King, but we are controlled by a dead generation of centuries ago.

And now conservatives seek to interpret the Constitution in ways that magnify the sovereignty of the People of 1787 over us. But that is for another day’s discussion.

We, the People of the United States (continued)

If “We, the People” of the present United States were going to frame a government, would we really choose our present structure? Is it the best method for obtaining a constitutional goal–consent of the governed? We certainly would want to re-consider some key structural elements that can prevent the will of the People from prevailing. For example, we would think hard about the Electoral College.

While most often our president has been the person who has garnered the greatest number of votes, we, as has been demonstrated twice in the last generation, have no guarantee of that. Perhaps “We, the People” of today would see the electoral college as a result of understandable compromises that were necessary for the adoption of the Constitution in 1787, but we might now prefer the direct election of the President where every vote counts equally. This would produce a huge change in our presidential elections, and not just because the smaller states currently have a greater proportional representation in the Electoral College than the larger states or because sometimes the candidate with the most votes does not get inaugurated. The Electoral College in effect disenfranchises voters throughout the country.

I vote in New York, but my vote for president is, in a practical sense, meaningless. Last election, I could be confident that no matter whether I voted or not, New York’s electoral votes would go to Hillary Clinton because she was certain to get a majority of the state’s vote. The same can be said for California and other states. Similarly, voters in Texas and Alabama were casting meaningless ballots. Whether Trump or Clinton got more or fewer votes in most states simply did not matter. Voters in these states did not have much incentive to vote for President. Instead, the truly important voters throughout the country were in the “swing” states. Each swing-state voter, and non-voter, in effect counted much more than those in the safe states. When one person’s vote counts more than another’s, do we really have a government of the People?

This is not said because I thought Clinton should have won because she garnered most votes. No one should assume that if we had had the direct election of the President that Clinton would have been inaugurated. We can’t know that. With a direct election, all voters throughout the country would have had an equal incentive to vote because all votes would have mattered equally. An additional 50,000 votes for Trump or Clinton in New York or California or Texas would have changed nothing, but in a direct election, each of those votes would have mattered as much as the votes mattered in Wisconsin and Michigan. In all likelihood, with a direct election of the president, more people would vote than do now.

We also can’t assume that Clinton would have won in 2016 with a direct election because direct elections also would make campaigns different. If each vote in Alabama would matter as much as each vote did in Michigan, the candidates would have had to, shall we say, pander to every voter in Alabama as much as was done to get the Michigan votes. With equal appeals to every voter no matter the happenstance of residence, with an increased number of citizens voting, and with the majority determining the outcome, we might conclude that a direct election would more likely produce the consent of the governed than does the Electoral College system.

Today, in any presidential election, even when the candidate with most votes wins, can we really say that “We, the People of the United States” of today have chosen our national leader?

We have an electoral system chosen by the People of 1787, and those eighteenth century voters chose an amendment process that makes it almost impossible for the People of today to change our Electoral College. There is little point in even debating whether it is the best, or even a good, method of selecting a president. “We, the People United States” of today don’t really have a choice in this. Instead, the choices of the People of 1787 control us. If the People are sovereign, it is the People of 1787, not the People of today, who are the sovereigns on this matter.

(Concluded on July 20)

We, the People of the United States

A seat on the Supreme Court is vacant. This means a season of idolatrous praise for the Constitution. We can expect the expression of a demanded fealty to our founding document. We may not ever say that the Constitution has the status of Holy Writ, but we know that it comes darn close. And just as we often hear the Bible’s initial words recited, we can expect to repeatedly hear the Constitution’s beginning passage: “We, the People of the United States, . . . do ordain and establish the Constitution of the United States of America.” Even though we hear these words, we don’t often consider  who the People are in “We, the People of the United States.”

We, the People of the United States do ordain” announced a radical concept. The “People” were creating a government. Elsewhere sovereignty resided in God-ordained rulers. In a momentous change, the Constitution rejected that. The People in adopting the Constitution were now the sovereigns, and the Constitution came to be seen as (nearly) God-ordained. The constitutional scholar Edward S. Corwin noted in The “Higher Law” Background of American Constitutional Law: “The Reformation superseded an infallible Pope with an infallible Bible; the American Revolution replaced the sway of a king with that of a document.” Under the Constitution, power would not run from the top down, but from the People up. The government did not have inherent powers or ones given by a god; instead, the government would only have the powers granted by the People.

The radicalism behind “We, the People” had already been announced in the Declaration of Independence: “We hold these Truths to be self-evident, that all Men are created equal with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness—That to secure these Rights, Governments are instituted among Men, deriving their Just Powers from the Consent of the Governed. . . .” Rights were not granted to the people by the government; instead, rights were embedded in the individuals forming a society. The People do not exist to serve a sovereign monarch or government; instead, the government exists to serve the People.

This was radical stuff. Today we may point out the voting restrictions that existed in eighteenth century America to denigrate its limited notion of the People, but still “We, the People of the United States” was announcing a new concept in sovereignty, one that we feel still exists. Now women can vote and hold office; African-Americans can vote and hold office; people without real property can vote and hold office. We believe that our government now even more fulfills the promise of “We, the People of the United States” than it did in 1787. But our self-congratulatory pronouncements seldom truly examine whether “We, the People of the United States” of the twenty-first century have sovereignty. In important ways, the sovereign over our present country are not the People of today but the People of 1787.

The people of 1787 chose the government as defined in the Constitution. In 1787, the majority of the delegates to the state conventions controlled whether a state assented to the proposed Constitution. Since all the states adopted the Constitution, we can say that the People of the United States–as represented by a majority of the voters–formed the country.

But have the present People of the United States truly chosen this form of government? What have you done to select it? If you are like me, the answer is “nothing.” I was born into it. I suppose I could reject the government by becoming a citizen of another country, but I have taken no action to choose it. In some sense, only naturalized citizens have affirmatively chosen our government, and perhaps that is why they should be seen as more American than the rest of us. I live under a Constitution that the People of the eighteenth century and naturalized citizens have opted for, but not one chosen by the majority of Americans of today.

Perhaps we can say that present Americans choose the Constitution by not changing it. If we aren’t satisfied with it, we can amend it as Americans have done twenty-seven times. But can the People really modify the Constitution? It cannot be changed by a majority or even by a straightforward supermajority today. A tiny fraction of our citizens can prevent any amendment. That is because the People of 1787 chose a restrictive amendment process that prevents the People of the United States of future generations from truly governing themselves.

A constitutional amendment is proposed only if two-thirds of each House of Congress votes for it (or if it comes from a convention called for by two-thirds of the states for the purpose of proposing amendments, which has never happened.) The proposal becomes part of the Constitution only if it is approved by three-quarters of the states, with each state having one vote. Wyoming has one vote as does California, even though California’s population is sixty times greater than Wyoming’s. The nine largest states have a majority of this country’s citizens, but these people cannot control this amendment process. The sixteen largest states contain about two-thirds of the population, and the twenty-two most populated have about three-fourths of all Americans, but those twenty-two don’t even comprise a majority of the states, much less the three-quarters that are needed for an amendment.

When it comes to amending the Constitution, a Wyoming voter in effect counts as much as sixty California voters. Is that government by the People of the United States? Can we really say that the People of today control the process when a tiny fraction of the populace can prevent an amendment? Can we really say that the People have consented to the Constitution by not changing it? Isn’t it more accurate to say that the People of 1787 have forced an amendment process on us that prevents the People of today from being truly sovereign? And thus, at least in this instance, “We the People of the United States” means the People of 1787 are our sovereigns.

(Continued on July 18)

Let’s Get Women Off the Supreme Court

Dear Loyal Readers Who Noticed That I Did Not Keep My Usual Posting Schedule Last Week,

Last Monday I posted a longer than ordinary essay about the Supreme Court nomination of Amy Coney Barrett. Because of its length, I had planned to skip my usual Wednesday post and resume this blog on Friday, but that day passed, too, barren of my wit and wisdom. You might assume that that was because I was so wrapped up in the Senate hearings that I did not get to the keyboard. I wish that were so, but instead, some health issues had me in doctors’ offices where lasers zapped my eyes and other machines found additional problems with this aged body. In what was meant to be reassuring, the doctor said that the new problems were “repairable,” and the repair strategy, which apparently does not require the copious use of duct tape, is under way, but it all took up some of my time.

Even so, I still had many moments when I could have watched the hearings. Mostly I avoided them expecting them to be as predictable as the Perry Mason reruns on ME TV, and I gather the Senate proceedings held few, if any, surprises. In the half hour I did watch, Barrett stated that her constitutional philosophy was not to place her own values into the Constitution or to seek the original intent of those who drafted the Constitution but, as other conservative judges now say, to apply the original public meaning of the document’s words. The Constitution, she said, does not evolve but, apparently, remains frozen in the eighteenth century. To her this is necessary so that judges will be neutral and not constitutionalize their individual values and views. (I have previously discussed this thinking on this blog in “We, the People of the United States,” posted July 26, 2018, and “Originally It Was Not Originalism,” posted August 22, 2018.)

Although I did not hear her use it, her explanation reminded me of Chief Justice John Roberts’s oft-mocked metaphor that judges should be mere umpires keeping their personal predilections at bay. The contention is that judging can and should be mechanistic. Moreover, rulings that use the standard of original public meaning are desirable because such meaning can be objectively determined

My mind went whirring into the future. Twenty years from now our president is Phillip K. Dick III, a sports fan. He notes in 2040 that tennis matches have long abandoned human officials for line calls using machines instead. Baseball now registers ball and strikes without a human umpire, and footballs have chips implanted so that forward progress at the end of each play can be automatically recorded without the rather slapdash procedures of line or side judges in days of yore. Referees and umpires have moved beyond human judgments, and Dick remembers John Roberts’s words that Supreme Court judges should be like umpires. (Roberts, a mere eighty-five, is entering his thirty-fifth year of Court service.) Therefore, when Stephen Breyer dies at the age of 102 after forty-six years of service as an Associate Justice, Dick nominates a computer — which has had the Constitution, all court decisions, all dictionaries, all necessary history, and anything else that could be relevant to court decisions placed in its memory and which has been programmed to make decisions using these materials — to fill the Supreme Court vacancy. President Dick states that this will eliminate the dangerous human element from constitutional interpretation. Arnold, this device’s name, is ready to take the “seat,” but a cry goes up that Dick cannot do this. The Constitution does not allow the president to appoint non-humans to the highest court. (My imagination cannot discern the source of the cries, but presumably they don’t come from the conservative wing of the Supreme Court, consisting of Clarence Thomas at the age of 92, Samuel Alito at 90, Brett Kavanaugh at 75, Neil Gorsuch at 73, and Amy Coney Barrett at a spry 68, who all claim that they mechanically interpret the fundamental laws without invasion of human emotions.) References to Caligula are made, but a horse is a horse, of course, and Incitatus was never actually made a consul but merely a priest. This is the United States Supreme Court, Dick says, and is different. Human judgement should be removed from judging as the conservatives maintain. Justice Arnold could make decisions without emotions and biases and, therefore, is better suited for the Court than any mere human.

The humans pull out their vest-pocket-sized Constitutions and flip pages to find the controlling text: The president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme  Court. . . .” (We seldom notice that the Constitution does not give the president the power to appoint Supreme Court judges. The president nominates and with the Senate appoints them. The president and the Senate jointly appoint the Supreme Court.)

All sorts of linguistic tools have emerged that can be used to show how words were used in the constitutional era, but I have only bothered to look at Noah Webster’s dictionary, the compilation of which started much earlier but was first published in 1828. It says that a “judge” is a “civil officer who is invested to hear and determine” civil or criminal causes. Webster defines an “officer” as a “person commissioned or authorized to perform any public duty.” There we have it. A person. With the original public meaning, a judge in the constitutional sense is a person, and Arnold is out. (Of course, much modern constitutional law depends on the legal fiction that a corporation is a person, but that is a story for another day.)

But now the original public meaningers look a little further. Webster states that a judge is a civil officer who decides causes “according to his commission.” His. Does this word include both men and women? Not according to Webster, who defines “his” as the “possessive of he,” not “he or she.” By this analysis, a judge within the meaning of the constitution is not only a person, but a male person with a commission. People now realize that the original public meaning of “judge” in the Constitution means a man. A third of the Supreme Court must go.

Of course, the framing generation could not have meant a non-human as a Supreme Court judge. Cyborgs were not on their radar (and, of course, radar was not on their radar in 1789.) But neither was a female judge. That generation did not consciously reject women as judges; the possibility, as with non-humans, never occurred to them. Lawyers were men, and so were judges. (Some Framers may have thought of that woman lawyer, Portia, but surely they knew that in The Merchant of Venice the lying Portia came disguised as a man, Balthazar, claiming, without basis, to be a “doctor of law.”)

The original public meaning of judge in the Constitution meant a man. Shouldn’t the conservatives on the Supreme Court today read the word as it was meant in 1789?

What if We Abolish the Electoral College?

Prominent Democrats have called for the end of the Electoral College, that unusual device through which we select our president. A Representative from Hawaii has introduced a constitutional amendment to abolish it and use the national popular vote to choose our chief executive. Conservatives now defend the Electoral College. You might think this indicates some sort of principled split over basic constitutional principles; you might think that if you were ill-informed. The defenders of the present system, of course, want the status quo because they believe it favors Republicans while the reformers believe Democrats would benefit from a national popular vote. These inclinations are fueled by recent history. Twice in the last generation we have inaugurated presidents who did not get the most votes, and both of them were Republicans.

We did not always have this partisan divide over the Electoral College. The 1968 election produced a close national popular vote but a much wider margin in the Electoral College. Six months before that election, 66 percent of Republicans and 64 percent of Democrats stated that the Electoral College should be replaced with a national popular vote. After the election, 80 percent of Americans supported changing the electoral system. In 1969, the House, by 339 to 70, passed a constitutional amendment to select the president by popular vote. The proposal, however, was filibustered to death in the other chamber by Senators from small states.

If such an amendment could not make it through the Senate when the populace overwhelmingly favored it, a similar amendment has no chance in the Senate today. However, reforms of the Electoral College are possible without a constitutional amendment. Most states now have a winner-takes-all approach to the allocation of their electoral votes. Whoever garners the most votes receives all the electoral votes. This method of allocating a state’s electoral votes is a prime reason it is possible for a candidate to get the most votes nationally but lose in the Electoral College. The winner-takes-all rule is not constitutionally required, and some states have modified it by giving an electoral vote to the candidate who wins the most votes in each congressional district with the state’s two other electoral votes going to the candidate who wins the state. Other states have signed onto a national popular vote bill that would give each state’s electoral votes to the candidate who receives the most nationwide votes. The bill would take effect in those states when jurisdictions with a combined 270 electoral votes have enacted it. (Fifteen states with a total of 189 electoral votes have already passed it.)

I think that in a land that likes to tout a government of “We, the People,” the direct election of the president would probably be a good thing. Surely, “We, the People” can be an aspirational concept under our present system where a candidate who does not get the most votes can become president. But in the unlikely event that we get to some system where the president is elected by the national popular vote, we will deepen current controversies about who gets to vote.

We don’t have national voter standards, and this is a problem if the national popular vote is to determine who will be president. For example, states have different laws concerning the disenfranchisement of convicted felons. A few states allow all to vote. Some states permanently bar convicts from voting. Some states prohibit those in prison from voting. And so on. As a result, a higher percentage of the population can be eligible to vote in State A than in State B. And of course, identification laws for voting and provisions for early voting mean some states make it easier or harder to vote. A true national popular vote should have uniform standards on voting eligibility and procedures, but we now leave that to the states. Getting to the needed uniformity seems unlikely even if we managed to implement the direct election of the president.

While states disenfranchise differing portions of its citizenry make a true national popular vote impossible, the direct election of the president would at least lessen the fact that some votes count a lot more than others in our present system. I vote in New York, but my vote for president is, in a practical sense, meaningless. Last election, I could be confident that no matter whether I voted or not, all of New York’s electoral votes would go to Hillary Clinton because she was certain to get a majority of the state’s vote. In any “safe” state, be it California, Texas, Alabama, Mississippi, or elsewhere, it is clear who will get the electoral votes, and it does not matter whether the winning or losing candidate gets more or fewer votes.

The truly important voters throughout the country are in the “swing” states. In 2016, the votes in Wisconsin, Michigan, and Pennsylvania mattered much more than in other places.  Each swing-state voter, and non-voter counts much more than those in the safe states. That may not seem American, but it is the American way.

(concluded April 12)