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The Shortsighted Electoral College (concluded)

The major effect of the original Electoral College was not to give power to the small states but to the slaveholding states. Madison had said that a direct presidential election was “fittest” but it would harm the South, citing the more “diffusive” franchise in the North, but the Virginian slaveholder continued with the curious comment that with a direct election the South would “have no influence on the score of the Negroes. The substitution of electors obviated this difficulty. . . .” The “difficulty” was avoided by basing the number of electors on representation in the House of Representatives. The apportionment of the House, of course, incorporated the three-fifths clause where that percentage of slaves was used in the allocation of House seats.

The three-fifths clause was, therefore, incorporated into the Electoral College giving extra power to the large slaveholding states. The first census in 1790 found that New York had a free white population of 313,000 and North Carolina had a free white population of 289,000. Each state had the same electors, however—twelve—after that first census. While New York had 21,324 slaves, North Carolina had 100,572. South Carolina had a free white population of 139,000 but New Jersey had thirty thousand more. Even so, South Carolina had twelve electors and New Jersey eleven. South Carolina had 107,094 slaves and New Jersey 11,423. (New Jersey is the starkest example of why Madison feared for the effect on the South if there had been a direct election of the President. Even if the franchise had been equally distributed in South Carolina and New Jersey, New Jersey with its larger white population no doubt would have had more power in picking the president; if the turnout was equal, New Jersey would have about 20% more votes than South Carolina. But as Madison had to know, New Jersey then allowed women to vote, and its total vote might have been twice that of South Carolina’s. With the Electoral College as adopted, even though South Carolina had the smaller white population, it had more power in the presidential selection than New Jersey.)

Virginia had a free white population of 441,000; Pennsylvania had 422,000, about a four percent difference. Virginia had 292,627 slaves and Pennsylvania had 3,731. Even though 40% of Virginia’s population could not vote, Virginia had forty percent more electors than Pennsylvania—twenty-one to fifteen.

A direct vote for President would have lessened the power of the South; instead the electoral college as adopted magnified it. Founders recognized and said that large states would dominate the vote in the Electoral College, and Southern states would have special influence in picking a President because of the peculiar way in which slaves were counted.

Unlike what some people now claim, the demigods of 1787 did not protect small states via the Electoral College, and their sop of requiring electors to vote for two people with one not from the state of the elector proved to be a laughable protection. The Framers in adopting the Electoral College did not foresee the rise of political parties even though parties were in place only a few years after the Constitution was adopted and were evident in the first contested presidential election, after Washington retired in 1796.* By then, two men ran as a team with one running for President and the other as Vice-President. The country made it through 1796 without a major problem, but the Electoral College caused a crisis in 1800.

Thomas Jefferson and Aaron Burr ran as a Republican team in the presidential election. The widespread understanding was that Jefferson was running for President and Burr for Vice President. John Adams, the Federalist incumbent, ran with his vice-presidential running mate Thomas Pinckney against Jefferson and Burr. Jefferson got seventy-three electoral votes to Adams sixty-five, making Jefferson the apparent victor, but of course, because each elector had two votes, Burr received the same number of electoral votes as Jefferson. A tie, which was not foreseen by the Framers but was close to inevitable with the rise of political parties.

The selection of the President in 1800 went to the lame-duck Federalist-dominated House, even though the Federalists had lost the election. That losing party had to decide which Republican, Jefferson or Burr, was the lesser evil. Thirty-six ballots later, Jefferson became the third President. And we got the Twelfth Amendment to fix this major flaw. That Amendment required electors to cast separate votes for President and Vice-President.** At least when it came to the Electoral College, the Framers did not see very far at all.

Remember this whenever someone suggests that the Framers were infallible or that the Constitution is a God-given document. And remember that the original Constitution gave the major slave-holding states the dominant power in picking the President.

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*The Framers also did not foresee that electoral votes would be allocated by a winner-takes-all approach where the candidate with the most votes in each state would get all of that state’s electoral votes. That development, however, did not come quite as quickly as the rise of political parties. In 1796, even though Jefferson won the most votes in Pennsylvania, Virginia, and North Carolina, one elector in each of those states voted for John Adams instead and those three votes made Adams president. He received 71 electoral votes to Jefferson’s 68. Jefferson received the second most votes. (Adams’s running mate, Thomas Pinckney, garnered 59 electoral votes.) Under the electoral system then in place, Jefferson became Vice-President under his political enemy, Adams, an uncomfortable result.

**Elections might have been more fun if we still had the original electoral scheme as indicated by Alexander Hamilton’s devious actions in 1796. Although Adams and Hamilton were both Federalists, Hamilton did not want Adams to become President. Supposedly Hamilton approached electors in states Jefferson had won and urged those electors, after voting for Jefferson, to give their second vote to Thomas Pinckney. Hamilton was hoping that Jefferson-Pinckney votes plus Adams-Pinckney votes would give Pinckney the most electoral votes and the Presidency. Hamilton’s machinations seem to have borne some fruit, most notably in South Carolina where both Jefferson and Pinckney received eight electoral votes. The scheme failed because in a number of states that Adams won, the electors divided their second votes between Pinckney and other candidates or did not give any second votes to Pinckney. For example, Adams received nine votes in Connecticut, but Pinckney got only four, with five votes going to John Jay. New Hampshire gave six votes to Adams, but none to Pinckney. Pinckney received twelve fewer electoral votes than Adams. But think of the gamesmanship we might have if this original electoral edifice still existed.

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The Shortsighted Electoral College

 With a presidential election looming, it should be a good time to examine again the efficacy of the Electoral College, but if the electoral vote follows the popular vote this time, the topic’s urgency will dissipate. There is, however, another good reason to consider the Constitution’s original electoral system. The insertion of Amy Coney Barrett onto the Supreme Court has made many think again about our Constitution and how to interpret it. A strain of constitutional interpretation regards the original men who framed the Constitution as so sagacious and farsighted that their constructs of 1787 are still perfect for us now. Some believe that God inspired the Constitution.

The Framers did write an amazing document. The governance it started continues on in a somewhat recognizable form to that of 1789, an extraordinary achievement. Nevertheless, an examination of the Electoral College the originators adopted reveals their foresight to have been quite limited. We should remember these limitations when some seek to deify the Framers and the Constitution.

After reading some contemporary comments suggesting that the point to the Electoral College was to preserve the powers of the small states so that the large states would not dominate the presidential selection, I pulled out The Records of the Federal Convention of 1787 edited by Max Farrand and The Federalist Papers to see what these sources said about the method of selecting the president. The issue was debated again and again in the Constitutional Convention of 1787. The delegates would agree to a method, but potential flaws in that selection process would circulate. A different scheme would be proposed and problems with the new proposal would be pointed out. This merry-go-round continued until near the end of the convention when the delegates finally settled on the Electoral College as it appears in the original Constitution.

The convention first voted to have Congress  choose the President, but criticisms soon emerged. In James Madison’s words: “If the Legislature elect, it will be the work of intrigue, of cabal, and of faction: it will be like the election of a pope by a conclave of cardinals; real merit will rarely be the title to the appointment.” Foreign governments would try to influence Congress in the selection of the President because they would think it important “to have at the head of Government, a man attached to their respective politics and interests.” In addition, a basic goal of the Constitution, the separation of powers, would be compromised because the President would be beholden to Congress for his selection. In addition, as Alexis de Tocqueville, the astute observer of the United States, wrote in Democracy in America forty years later, Congress, chosen to make laws, “would represent but imperfectly the wishes of the nation in the election of its chief magistrate; and that, as they are chosen for more than a year, the constituency might have changed its opinion in that time.”

This and many other methods were proposed and rejected: The state governors should select the President; electors selected by Congress should make the choice; electors drawn by lot from Congress should choose the President.

Madison said that the “fittest” way to select the President was to have a direct election, but he then noted two problems. “The first arose from the disposition of the people to prefer a Citizen of their own State, and the disadvantage this would throw on the smaller States.” Madison did not find this problem insurmountable and said “that some expedient might be hit upon that would obviate it.” The next speaker, however, differed with Madison’s optimism by saying, “The objection drawn from the different size of the States, is unanswerable. The Citizens of the largest states would invariably prefer the Candidate within the State; and the largest States would invariably have the man.” The delegates thought that a direct election would prejudice the smaller states, but what concerned them was that candidates from small states could not get elected because the parochial electorate in the large states would favor candidates from their states and those large-state votes would overwhelm the candidates from small states. (Reminder. In the last presidential election, Trump was then a lifelong resident of a large state, but New York overwhelmingly voted against the hometown boy. Perhaps the Founders were not familiar with the adage, “Familiarity breeds contempt.”)

Madison also maintained that a direct vote would undermine the South. Many northern states had eased the traditional requirement that only white male citizens who owned property could vote by allowing white males who paid taxes also to have the franchise, and in New Jersey, even women had the vote. Madison recognized that the “right of suffrage was much more diffusive in the Northern than the Southern States.” A higher proportion of people in the North could vote than in the South, and the South’s power would be diluted by a direct election.

Madison and others maintained that an electoral college, however selected, would obviate some of the concerns of a congressional selection. The electors would be chosen for only one purpose and would meet just once, and in the adopted version, not meet together but in the separate states so that there would be little opportunity for cabals, intrigues, and foreign influence.

An electoral college, however, does not necessarily alleviate the small-state concerns. Today many see the founders protecting the small states by giving them a slightly greater number of electors than is justified by their populations. The founders, however, addressed the small-state problem in a different way. The concern was that a candidate from a small state, even if worthy, would inevitably lose because the large-state electors would vote for one of their own. The solution: each elector would vote for two people, one of whom must not be from the elector’s state. The delegates thought that while one vote may go to someone from the home state, the second vote would be for the person seen as the best in the rest of the country, and if that person was from a small state, he could be elected with a collection of second-choice votes.

The Founders added another “accommodation to the anxiety of the smaller States,” as Madison wrote in a letter in 1823. If no person got a majority of the appointed electors, then the House of Representatives would choose the President from the five highest on the electoral list with each state having one vote. The largest and smallest states would be equal in this process, which, according to Alexander Hamilton in The Federalist Papers, would be “a case which it cannot be doubted will sometimes, if not frequently, happen.”

That Senators as well as Representatives were included in determining each state’s electors may seem to have been a major protection of the small states, but delegates knew that the large states would dominate the Electoral College. Luther Martin writing to the Maryland Legislature after the draft Constitution was promulgated but before it was adopted said that the “large states have a very undue influence in the appointment of the President.” Gouverneur Morris, a delegate to the Constitutional Convention, writing in 1803, noted that it was recognized that the large states would dominate the Electoral College. Only if the matter went to the House of Representatives did the small states have a substantial voice in the presidential selection.

(concluded October 30)

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What if We Abolish the Electoral College (concluded)

Principled and historical reasons can be lodged for and against the Electoral College, but the present partisan divide indicates that both Democrats and Republicans believe that if the national popular vote had been determinative, Al Gore would have won the presidency in 2000 and Hillary Clinton in 2016. However, that should not be assumed because if the popular vote had controlled, the vote totals for the candidates would have been different.

With a direct election, all voters throughout the country would have had an equal incentive to vote because all votes would have mattered equally, which, of course, does not exist now. An additional 50,000 votes for Trump or Clinton in New York or California or Texas would have changed nothing under our present system. With the direct election of the president, voters in safe states would have more incentive to go to the polls than now, and we would probably have more voters. My guess is that the minority candidate in a “safe” district would especially benefit. Where I vote, Democratic candidates are almost assured of winning not only the presidential vote, but also for all the other ballot spots. For many people, it is more satisfying to vote for winners than losers. If I had supported Trump, it would have taken some unusual strength to do the dispiriting thing of walking the block to the local junior high to fill in the bubble in front of Trump’s name because he was going to lose New York overwhelmingly. But, of course, the comparable dispirited Clinton supporter also existed in Alabama and Mississippi. I don’t know how the totals would have changed, but if the Electoral College had not existed in 2016, I am confident the totals would have been different from what got tallied as the total popular vote.

The direct election of the president would probably increase the number of voters. It would definitely change the nature of the campaigns. With hindsight, Hillary Clinton was criticized for not campaigning in Wisconsin. That criticism is understandable. She polled 27,000 fewer votes than Trump there giving Trump won the Badger State’s ten electoral votes. The critics’ assumption is that if Clinton had campaigned harder in the Dairy State (should a state be allowed two nicknames?), she might have switched some Trump voters to her or, more likely, convinced some who voted Libertarian or Green to vote for her. And perhaps more campaigning would have meant that some of those who sat on their hands would have come out to vote for her. If her campaign had brought one percent more to the polls to vote for her, she would have won Wisconsin.

That one percent, however, would have been about thirty thousand more votes. With a direct election, this extra targeting might not make sense, and Clinton probably would have spent more time in several other states where she, and Trump, did little campaigning—California and New York. Candidates do visit these states, but usually for fundraising, not traditional campaigning. The assumption under our present system is that both these states are safe for the Democrats and campaigning there by both sides is a waste of time. If the national popular vote controlled, however, both Hillary and Donald would have made campaign efforts in these states since an increase of a one percent turnout for the candidates in those places could mean 100,000 or more votes to the national total.

The abolition of the Electoral College would not just mean a change in the location of campaign efforts, it would also make a difference in campaign promises. Think about Iowa and the primaries. Don’t all candidates swear to defend ethanol because they think defending the corn crop is high on the list of Iowa voters? If Michigan is viewed as a swing state, candidates appearing in Lansing or Battle Creek can be expected to make promises that especially appeal to Michigan voters. In safe states, such as Alabama, Mississippi, and Louisiana, candidates do not have to make the kind of pandering promises they make in swing states. If, however, each vote truly mattered as much in Mississippi as in Michigan, candidates might have the same incentive to pander in both places.

But under the system we have, and I expect that we will continue to have, each vote for president is not equal. The swing states count more and get more from the candidates.

As a result, however we view the structure of our government, we should not refer to it as a democracy.

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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)

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The Primaries Rule

We tend to think of our country as a democracy, where “The People”– through the majority of the voters–rule. This, of course, is not completely true for many aspects of our government. The United States Senate is a prime example. The candidate who gets the most votes in a state becomes the Senator. This seems democratic enough until we realize that a minority of voters nationwide choose the majority of the Senators. Since each state, no matter how large or small its population, gets two and only two Senators, the overall composition of the body is markedly malapportioned. This, of course, is mandated by the Constitution.

Other less-then-democratic rules, however, are not constitutionally mandated but result from various political strictures and practices. Thus, the filibuster rule grants a minority of the already malapportioned Senate to dictate outcomes. In both Houses, committee chairs can determine what can be voted on, and this can defeat the will of the majority in those bodies. And so on.

We know that a minority of the voters can elect a president. That is partly because of the electoral college, which our constitutional founders gave us. In addition, however, the nonconstitutionally-mandated decision rule increases the likelihood of a minority president. Most states have decided that all its electoral votes will go to the candidate who gets the most votes. This is not constitutionally required, and at the beginning of our Republic, it was not the usual method for allocating electoral votes. Instead, states often split those votes, but now only a few states do that. So if I win a state with a large number of electors by a handful of votes, but I lose a state with a lesser number of electors by a significant amount, I may be behind in the popular vote but ahead in the crucial electoral count. The Constitution is silent on this outcome.

There is another decision rule, however, that can affect whether we have a minority president: the presence of third parties. In key swing states in 2016, Trump won not by getting a majority of the ballots. In most states he did not poll better than the Republican Romney had four years before. Instead, the third-party share of the votes increased, and Hillary Clinton got fewer votes in some states than Obama had four years earlier. In Pennsylvania, Wisconsin, and Michigan, Trump got the plurality, not the majority, and got all the electoral votes. We don’t know, of course, what would have happened had the third parties not been on the ballot, but we should realize that the rules allowing candidates on the ballot matters. The more candidates on the ballot, the less likely it is that “The People”–i.e., the majority–control. These rules matter and vary from state to state, but few of us know what they are or whether they should be changed.

Primaries, especially in safe districts, also affect majority rule. By a “safe” district, I mean those in which it is all but certain that one party will win the general election. I reside in a place where a Democrat always wins the House, the state legislative, and the city seats. The November election is a mere formality. The only truly important election is the primary because it will determine which Democrat will run. I am hardly unique in living in such a place. A few years back I read a study with a sobering statistic: while 25% of the House seats were safe several decades ago, that number had increased to 60%. With unrestrained and more sophisticated gerrymandering, that percentage is even higher now.

Almost everywhere, the turnout for primaries is lower than for general elections, even when the general election is functionally meaningless. This can mean that a tiny fraction of the people determine who will have governmental power, but the situation can be even more striking when a primary is contested with several viable candidates. The rules are not uniform for deciding the outcome of such contests. I have voted under several different systems in New York City alone. In some primaries, a candidate polling over 40% moves on to the general election, but if they do not reach that threshold, another primary is held between the top two candidates. “Ranked choice” is now used for some New York primaries, and I would explain that to you if I could, but I am like most New Yorkers who, even though voting to adopt this system, do not fully understand how it works. But in some New York primaries, a simple plurality controls. (Oh, yes, New York City is a complicated place.)

New York has just completed primaries for the House of Representatives. New districts were drawn as a result of the last census which caused the state to lose one seat in the national legislature and made for some interesting primaries. Two sitting House members were thrown together in one district and faced each other in one primary. Another district did not have an incumbent and a half-dozen interesting candidates ran for the Democratic seat in the plurality-controlled contest. The winner polled 25.7% garnering fewer than 17,000 votes. And in what is almost certainly a safe seat, he will be going to the House in January. In other words, 17,000 people will have picked the new Representative. “The People,” I guess, have spoken.

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Snippets

I am fascinated by those religious institutions that allow so many to feel self-righteous by making the lives of others so much worse.

A perspicacious person said: “A bigot delights in public ridicule, for he begins to think he is a martyr.”

Perhaps Shakespeare could produce so many works of genius partly because he did not have social media or a touch screen.

“It is impossible to enjoy idleness thoroughly unless one has plenty of work to do.” Jerome K. Jerome.

FEMA says that the states with the most disaster declarations since 2017 are Texas, Louisiana, and Georgia. Politicians from these states are often the ones who rail against the federal government “interference” and its spending. Nevertheless, they would be pretty unhappy without that FEMA money.

The spouse left me a shopping list that included “1 zucchini.” How many of you are confident that there is a double “c” in that spelling? She is (and she’s right!). (Parenthesis added by the spouse.)

At the Amish farmer’s market on Friday, there was a young woman behind the counter who is not always there. She told me that her name was Barbie, short for Barbara. I asked if she was the sister of Annie, the regular checkout person, who was standing next to her. She said no, that she was a cousin. I asked how many cousins she had. Annie and she exchanged sly glances, almost blushing. It was clear that neither had a definitive answer or perhaps even a good estimate. Barbie then said more than a hundred. Annie, I know, has eight siblings.

The Wisconsin Supreme Court recently held that drop boxes for voting violate Wisconsin law even though such devices have long been used in the state. Although the 2020 election was not at issue in the case, Donald Trump quickly said that decision meant that his certification as the loser of Wisconsin in the last election should be overturned. This was to be expected, but more surprising is that a Wisconsin legislator agreed. The drop boxes were not just for presidential votes, but for all electoral contests including all the state legislators running in 2020 and for every Wisconsin seat in the House of Representatives. Perhaps the decertification claim by the state legislator could be taken more seriously if she had said that she, too, was illegally elected and would not sit in the legislature until there was another election. But she did not say that. It is an interesting Catch-22 situation. If she wishes the legislature to decertify, but there has not been a validly elected legislature, what happens?

A wise person said: “Politicians are as good as you are, for the way you vote creates politicians.”

No sensible explanation has been given for an attempted attack on a boobish New York candidate for governor. However, because of what the miscreant had in his hand, I learned that there is such a thing as a Hello Kitty Self-Defense Key Ring. I did not rush out to buy one but come December it could be good for a stocking stuffer or Secret Santa.

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The First Was Not Always the First

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The First Amendment to the Constitution of the United States of America.

          Within the next two months, the Supreme Court term will end. The Court will render all its decisions for the pending cases. The most anticipated, of course, concerns abortion, but many other important opinions will be handed down, including some about religion.

          The religious cases will not get as much publicity as the abortion decision, but they will shape the country’s future in important ways. Before they come, I thought I would revisit the First Amendment, which contains what are often called the Establishment and Free Exercise clauses. A popular misconception is that the rights in the First Amendment were considered the most important ones by our founders because they come first in the Bill of Rights.

          For example, Trump’s Secretary of Education Betsy DeVos said in an op-ed piece: “There’s a reason why the First Amendment comes first. Our country was founded upon the ‘first freedoms’ it protects. The freedom to express ourselves — through speech, through the press, through assembly, through petition and through faith—defines what it means to be American.”        

          Her statement seems to say something learned about our country, and surely First Amendment rights are important, but can her words be profound when they misapprehend and misrepresent history? DeVos says the collection of First Amendment rights “defines what it means to be an American.” DeVos should remember the old story in which the teacher asked, “Who was the first man?” Glen shouted out, “George Washington.” Miss Wilson responded, “What about Adam?” Glen, showing disappointment in his teacher, said, “Well, if you are going to count foreigners.”

          America is not alone in what we label First Amendment rights. Citizens of many countries have the right to express themselves. If that right defines what it means to be an American, many foreigners must then be American.

          Perhaps what DeVos really meant to say is that we would not be Americans without these guarantees, but they do not define what it means to be an American. Happily, we are not the only people in this world with such rights. (The Democracy Index has scores for civil liberties and about twenty countries are ranked higher than the U.S.)

          DeVos made another point. These are our most important rights, she says, because the “First Amendment comes first.” Alberto Gonzalez, Attorney General for George W. Bush, said something similar years earlier, stating that religious freedom is the country’s first freedom because our founders saw fit to place it first in the Bill of Rights. We should give primacy to First Amendment rights because they come first, he said, and following that logic, we should give primacy to the religious provisions because they are the first of the First Amendment. (The First Liberty Institute, which litigates religious cases, does not on its website explain its name, but I presume the name comes from similar reasoning.) It all seems so obvious that a third grader using vouchers could follow the reasoning. But this elementary school reasoning is misleading and historically inaccurate.

          The rights of the First Amendment don’t come first in the Constitution. They come after the seven articles of the Constitution that were drafted in 1787; the initial amendments were drafted in 1789 and went into effect in December 1791. Our Constitution granted rights before the Bill of Rights existed, and if rights are to be measured by their placement, then these original freedoms coming years before the First Amendment must be more important than the religious and speech provisions.

          For example, Section 9 of Article I of the Constitution prohibits the suspension of habeas corpus except when a rebellion or invasion may require it. The next paragraph prohibits a bill of attainder or an ex post facto law. The next Section 9 provision gives another right: No direct taxation unless it is based on the census. This was an important right until it wasn’t a right. The Sixteenth Amendment, ratified in 1913, wiped out the no-direct-taxation provision by explicitly authorizing an income tax. Our rights, it turns out, are not immutable.

          Section 9 contains two other provisions that we seldom think about but were truly essential foundational rights for this nation, because without them we would not be one country: “No Tax or Duty shall be laid on Articles exported from any State. No preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one state, be obliged to enter, clear, or pay Duties in another.” We are welded into one entity because goods and transport can freely travel among the states. Without that, we would only be a collection of fifty fiefdoms.

          The founders also placed important rights in Article III, which provides a narrow definition of treason and requires “the Testimony of two Witnesses to the same overt Act, or on Confession in open court.” It also eliminated punishments for treason that had existed in Europe. Finally, Article III, Section 2 guarantees jury trials for crimes. (If the importance of a right is measured not by its placement in the Constitution, but by the frequency of its protection, then juries are the most important constitutional right since juries are guaranteed not only in Article III but also in the Fifth, Sixth, and Seventh Amendments.) In other words, First Amendment rights should not be given primacy because they come first; they don’t.

While the First Amendment’s placement does not indicate the preeminence of its protections, its rights are foundational to what we would consider a “free” society. That is not true for much of what is in the rest of the Bill of Rights. Many of its provisions are America-specific. We have them, but other countries have not considered them necessary for freedom. Most nations do not have the constitutional equivalent of our Third Amendment, which restricts the quartering of soldiers in homes. Many free societies have justice systems that do not rely on juries as we do. Most countries do not have in their constitutions the right to keep and bear arms. Indeed, our overall structure of government mandated by the Constitution with a President selected by an electoral college, a Congress, and separation of powers has not been deemed necessary for many free societies.

(To be continued)

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Democracy Dies When Elections Don’t Matter (concluded)

Gerrymandering harms democracy by making votes unequal. The North Carolina electorate splits roughly equally between Republicans and Democrats. Thus, the democratic result should be that the fourteen representatives that the state sends to Congress should be equally divided between the parties. North Carolina, however, has been severely gerrymandered, and ten of the representatives have been Republicans. Therefore, half the people elect 70% of the representatives and their votes count more than those of the other half. Of course, gerrymandering has been with us from the inception of the republic, but today, with modern tools of data collection and analyses, rigging districts is easier and more exacting. The partisan goal is to make as many “safe” districts for a party on the electoral map as possible and to undercut the democratic notion that the voting majority should control.

Legal remedies for changing this are weak or nonexistent.  Gerrymandered state legislatures draw lines so that one party will have more state representatives than warranted by the statewide popular vote. To change this, the other party has to get more than a majority that it would need to remove a disfavored governor. Instead, the lesser party must not only retain its majority in the minority of districts where it now wins, but also get majorities in the districts that are stacked against them because of gerrymandering. The disfavored party will in reality need a supermajority of votes to get the governmental reins while the party that gerrymandered can retrain control with a minority of the vote.

The United States confronted a similar situation in the second half of the twentieth century. At that time some states did not require periodic redistricting of their state legislature. With population growths and shifts, legislative districts that once may have held equal populations became different in size, but each was still entitled to the same representation in the state capital. In Tennessee, two-thirds of the state representatives were elected by one-third of the state’s voters. One Alabama district had a population of 634,864 and another had 15,000 and each had one state senator. Within each district, votes were equal, but when the state was looked at as a whole, votes were unequal, and the electoral process was not about to change that. Representatives from small districts did not willingly give up their disproportionate power.

This only changed because the United States Supreme Court stepped in and adopted what now is called the one person, one vote doctrine. The constitutional guarantee of equal protection, the Court recognized, requires that each vote within a state be equal to all the other votes in the state, and therefore legislative districts would have to have comparable populations.

The recent Supreme Court, however, has viewed partisan gerrymandering differently. Rucho v. Common Cause, decided in 2019, said that “partisan gerrymandering” may be “incompatible with democratic principles.” Even so the 5-4 decision, written by Justice Roberts, said that “partisan gerrymandering claims present political questions beyond the reach of the federal courts.” If gerrymandering is a political question as the Court stated, you might think that there would be a political process to address any problems, but the Court, for the good reason that there is none, did not suggest one. It is as if the umpires turned their backs and walked off the field saying that while it does not seem right, the home team can call balls and strikes. And, thus, the constitutional rights to equal protection and due process do not govern partisan gerrymandering.

Of course, the goal of gerrymandering is not only to make votes unequal, it also seeks to make elections meaningless. Originally gerrymandering was about individuals. Legislative districts were manipulated to have a particular person elected or defeated, but that changed over time to ensure that the member of a particular party, no matter who the individual candidate was, would win the seat. In a successfully gerrymandered district, the election is not about voter turnout, issues, or even personalities. The outcome is set by the district lines that are drawn before the election. The ballots are a mere formality. I see reports of elections from various autocratic countries where the leader gets a ludicrous percentage of the votes, often just short of 100%. The election, of course, is a sham; it is meaningless, and it means that that country is not a democracy. A gerrymandered district in the United States where the election is meaningless is not part of a democracy either.

Friends discount this by telling me that all sides try to draw district lines to their advantage. That has been true, but we should recognize that partisan gerrymandering of the sort we now have does not have ancient roots. Commentators see it starting in the last two decades of the twentieth century. By 2000, 300 of 435 House seats were safe for one party or the other, but now safe seats have increased. News reports in 2020 said that perhaps only fifty seats were truly contested ones, and after the round of gerrymandering that followed the last census that number may be lower.

Reform seems remote. Gerrymandered state legislatures are unlikely to ungerrymander themselves, which gives the incentive for gerrymandering elsewhere. If a surfeit of Republicans is produced in one state, a Democratic state quite naturally seeks to gerrymander its bailiwick for balance. State courts are the only possibility of reform, but not all, if any, state courts will address the undemocratic process,* and uneven reform may merely yield additional power to the political party that will still be able to gerrymander in other places.**

Finally, there is another potential challenge to our democracy, which could be the most devastating one. Right now, gerrymandering undercuts democracy, but it does not affect the presidential vote or statewide elections such as that for governor. Of course, it matters if voters do not have equal access for these non-gerrymandered elections, but the balloting still matters. However, we now have movements to change the vote counting and certification processes with the suggestions that the new officials will have the power to overturn elections when they don’t like the outcomes. We have the potential that no election will matter in the future.

And then democracy will not just be waning or under attack; it will be dead.***

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*Civics courses have taught that the lower houses of the national and state legislatures are the most democratic and representative of our governmental institutions because the fewest number of voters select these representatives in frequent elections. With gerrymandering, however, these bodies have become unrepresentative of the people. The civics courses have often concluded that the courts are the least democratic of our institutions since they are the most removed from the electorate. But when state supreme court judges are elected in non-gerrymandered statewide election, the state supreme courts may be more democratic than the legislatures.

**Gerrymandering has harmed government also by increasing uncompromising partisanship. In a safe district, a candidate does not have to appeal to the other side or even to the center to get elected. The candidate merely must win the party’s primary. The candidate does not ever have to appeal to the majority of the electorate, but only to the partisans voting in the primary. And when elected, members from gerrymandering district can indulge their partisan ideology without political retribution. We become a more divided country as a result.

***It was funny, and ludicrous, when Pat Paulsen, the comedian a generation or so ago, who “ran” for President, said, “I want to be elected by the people, for the people, and in spite of the people.” We now live in a world where “in spite of the people” is a dominant political strategy.

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Democracy Dies When Elections Don’t Matter (continued)

We might not know what we mean by democracy, but we Americans have often felt that our democratic system was under attack. For most of the twentieth century, we found our enemies abroad, or with “foreigners” within our land or with those who had adopted “foreign” ideologies, from communist countries or elsewhere. We had to be especially vigilant against these subversives because they did not operate openly, and their secret cells had to be ruthlessly rooted out lest they spread.

Today, however, the enemies of democracy are different. They are not hidden but public officials and local, state, and national leaders, with their secret sides, but also operating openly. This apparent openness may make us less vigilant concerning the dangers they present to democracy. We are often more concerned about what we fear is in the shadows than what is in front of our eyes. Because our vigilance may lessen when the threats to democracy come from public officials, the menace may in fact be greater.

 The dangers to our democracy are many, but they fall into several categories. The last presidential election had record voter turnouts. That should produce huzzahs for the strength of our democracy. Instead, it has spurred efforts to make it harder to vote, or at least harder for some people to vote. One segment of Americans wants fewer “other” Americans to cast ballots. Of course, when voting is not equally accessible for all, democracy is subverted.

Many do not condemn these voting restrictions but instead applaud them citing justifications without factual bases. Perhaps this acceptance comes easily because similar subversions of the electoral process have been part of the American way for much of our history. Biased literacy tests, poll taxes, and voter intimidation — all part of Jim Crow America that arose after Republicans abandoned Reconstruction — had the effect of suppressing votes. Today the motive is not solely racial but also partisan, but the goals of those wanting to make it harder to vote are similar to those of the past.

We should be concerned when voting is not equal for all of the people. Surprisingly, however, these anti-democratic efforts indicate an acceptance of the central democratic principle that elections do matter. These subverters expect that the majority of the ballots cast will determine the outcome, but they want to reduce the votes for the other side so that they will have the majority. As dangerous as these subverters are, they still accept some democratic norms.

Another attack on our democracy, however, has fewer parallels in our history and is less accepting of democratic tenets. In the last year, we have seen many efforts to undermine faith in our elections. Much of this is akin to the whiny schoolyard kid who can’t accept that he lost a game. His cry: I didn’t lose; somebody must have been cheating.

There’s this strange movement afoot that elections should not be trusted unless our side has won. Polls show that a large percentage of Republicans believe that Joe Biden did not win the last presidential election, and it seems clear that there is no evidence that will change their minds. We have a long history of electing loony people to office. In this tradition, perhaps leading the parade, are Republican officials who were elected to office in 2020, but who maintain that while they were validly elected, Trump, on the same ballot, was shafted.

All of this is seeding the ground for the claim that the results of future elections should not be accepted if our side does not win. These claims may come from across the political spectrum. If it loses, that side will say that the anti-democratic efforts to suppress votes made the elections untrustworthy. The other side, if it loses, will say the election can’t trusted because . . . well, just because they lost.

By itself, the claims of steal or illegitimacy attack democracy. We may not like the results of an election, but if we believe in democracy, we accept the results. I did not like it that Trump won in 2016, and I feel that it is a flaw in our electoral structure that the person who got 3 million fewer votes became president. That result highlighted that our country is not a true democracy, but I accepted that under our system that the now Has Been Guy was your president and mine.

Grumbling about an election is the American way, as I did in 2016, and claims of a stealor illegitimacy may just be another version of that. On the other hand, the cries of theft may truly be a democratic danger if they give many a “reason” to resist, legally and otherwise, the lawful outcome of an election.

Whatever the true purpose of Stop-the-Steal movements, it is clear that the goal of gerrymandering is anti-democratic. With “improved” gerrymandering, more and more elections are becoming mere formalities. And with each cut from another meaningless election, democracy bleeds away.*

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*The gerrymander term comes from Massachusetts Governor Elbridge Gerry, who pronounced his last name with a hard G, as if the name were Gary. And in the who-would-have-thought-it department, Ronald Reagan knew that and pronounced gerrymander with a hard G, unlike most people, including me and Supreme Court Justices, who use that term.

(Concluded December 22)

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Democracy: Indexed and Flawed (Again)

(When I have written longer essays, I have posted segments over multiple days thinking that readers might not read all the way through if it were all posted at once. Followers of the blog can read in its entirety as the essay goes online, but it has been pointed out to me that those who find such postings through a search engine may find only a part of the essay and have difficulty reading the essay from start to finish. Recently when I posted such a multiple-part essay, I have then posted the essay in its entirety after the segments have concluded so that it can be read from start to finish by those wishing to do so in one viewing. Almost always the blog’s content is new, but on occasion when it seems timely, I have repeated a past blog, which I am doing today. When I do so, even if it originally was posted over several days, I will post all of it at once. It is my Again project.)

(With waves passing through the states passing and considering legislation to make voting more difficult in the name of election security, it has made me think again about our “democracy.” As a result I revisited an earlier post not about such legislative activities but about anti-democratic structures built into our system of government.)

(First posted March 4, 6, and 9, 2020)

 I had not heard of the Democracy Index until a friend recently mentioned that the United States was listed on it as a “flawed democracy.” I later learned that the index is produced by the Economist Intelligence Unit, sister to The Economist magazine.

 The EIU bases its report on sixty indicators grouped into five categories (electoral process and pluralism, functioning of government, political participation, political culture, and civil liberties) yielding a numeric score capped at 10.00. Norway, with a score of 9.87, leads the list followed by Iceland (9.58), Sweden (9.39), New Zealand (9.39), and Finland (9.25.) Countries with scores of 8.0 to 6.0 are listed as flawed democracies, and the United States was given a 7.95 score.

This made me wonder about how I or my fellow Americans would define “democracy.” One dictionary said democracy was “government by the people, especially rule of the majority; government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections.” Another source said: “a system of government by the whole population of all the eligible members of a state, typically through elected representatives.” A third source: “the belief in freedom and equality between people, or a system of government based on this belief, in which power is held by elected representatives or directly by the people themselves.”

These definitions raised all sorts of questions and thoughts. Democracy was government by “the people,” but what was the definition of “the people”? Is it the same as “the eligible members of a state”? The whole population cannot vote in an election. Ten-year-olds don’t get to cast a ballot. Isn’t it important to define what the “eligible members of a state” ought to be for a democracy? If the franchise is restricted to a tiny part of the society, but the leaders are picked by majority vote of that small group, is it a democracy? I guess it is, at least according to one definition.

 One democracy definition emphasized majority rule, but I have heard of the “tyranny of the majority,” and wondered if we would consider a country democratic that horrendously oppressed all those not in the majority. And, if a system selects representatives with a plurality but not a majority, is it not democratic or is it a lesser form of democracy?

One democracy definition said “free elections.” That is not a self-evident phrase. I was not sure how I would define it, or if it could be defined except by negative examples.

Even though I felt as if I would know a democracy when I saw it, I was not sure that it could be defined. Part of the problem is that the definitions, like most definitions, were binary—something was either this or not this. Something was not “sort of” this or a “better or more complete version” of this. The Democracy Index, however, accepts a more inclusive notion of democracy. Many societies are democratic, but some are more democratic than others, and I probably thought along similar lines.

I did think, however, that the third definition included a component the others did not when it said a democracy was a system of government based on the belief of equality among people. For me, I realized, a facet of a better democracy is that the ability to vote is widespread, indicating equality among the people, and that all voters’ votes count the same, again indicating equality among the people. The elected representatives of the society are chosen by determining who had the most votes cast in an election where all the voters have equal access to cast ballots and all votes carry equal weight.

I also noticed an important absence in all the definitions. They had agreed that a representative democracy had the electorate picking people to represent them in government. But the definitions do not say that the people or the electorate choose the form of government in which their representatives will govern. But surely, the structure of the government has something to do with democracy. And “democratic” countries can be structured in ways that seem to make them more or less democratic. If our government is a flawed democracy as the Democracy Index asserts, part of the reason is that our governmental structure makes votes unequal. Our form of government means that some Americans count much more than others in choosing those who run the country. We are not, and cannot, be equal under our form of government. And the people of today have not chosen the structures causing inequality and a lesser form of democracy. Our forebears did that.

While the Democracy Index lists the United States as a flawed democracy, that categorization will be difficult for many of us to accept. Meanwhile, many who might entertain the idea of that limitation will assume that we are placed in the defective bin because of Trump’s election and his autocratic actions. The Democracy Index, first published in 2006, however, initially listed the United States as a flawed democracy in 2016 before Donald J. Trump became president. Trump may be the result, but he is not the cause, of a flawed democracy.

And although we may mouth those Fourth-of-July words—government of the people, by the people, and for the people—a little reflection shows that we don’t really believe them. Just look at the polls about confidence in Congress, for example. If we thought that government is of, by, and for us, we should have great confidence in our governing officials and bodies. We don’t. If the U.S. were truly a good and strong democracy, would approval polls for Congress hover around the twenty percent mark?

Perhaps the surprising aspect of the Democracy Index is that before 2016 it listed us as fully democratic, but we have always had important problems that conflicted with a fully functioning democracy. We often repeat Lincoln’s of, by, and for formulation, but if our government was so good, how was it that when he uttered them, he was speaking at a cemetery that represented the ongoing slaughter of a civil war? And, of course, the “people” then did not include women, blacks, or Native Americans.

We have progressed, but our democracy has never been even close to perfect. Our Constitution has served us well in many respects. It formed separate states into one nation that has endured, but that does not mean that the Constitution is without flaws. It permits governments to take actions to undercut democratic values, perhaps something that this blog will explore more in the future, but it also created a structure with anti-democratic features, structures that make our country increasingly undemocratic.

We certainly are aware that our method of selecting our president is not fully democratic. If democracy requires that all votes be counted equally and the person with the most votes wins, then the candidate with three million fewer votes than the rival would not become president, but under our semi-democracy, that was the result in 2016. (I have previously written about the electoral college including on April 10, 2019, and on October 28, 2020 https://ajsdad.blog/?s=electoral.)

The electoral college, however, is at least roughly democratic in that each state’s electoral votes roughly mirror its population size. The Senate is another story.

Within each state, the election for Senator is democratic. Every vote in Texas, for example, counts equally in choosing Ted Cruz as Senator, but within the country, votes for Senators are not equal. The Constitution allots Texas two senators. It also gives Wyoming two Senators even though the population of Texas is about fifty times the size of Wyoming’s. In other words, each Wyoming vote for a Senator counts as much as fifty voters in Texas. Hardly democratic.

And the Senate will be increasingly undemocratic. I don’t know the initial source of this statistic, but I have seen it in several publications: By 2040, 70% of the population will live in the fifteen largest states and will, therefore, account for thirty Senators while 30% of Americans will have 70% of the Senate.

Of course, even though an ever-smaller minority of the population will control the Senate, that does not mean that that minority will be able to legislate for the rest of us. The House of Representatives, even with partisan gerrymandering, more accurately reflects the population trends of the country. (Unrestrained gerrymandering is something for future consideration here.) Senators representing a small portion of the population, however, will be able to stop legislation, and that minority will be able to confirm judges, cabinet officers, and other federal officials. The majority of the country will have even less power than it does now as the Senate becomes more skewed, or we might say, the cracks in our democracy will become chasms.

You might question whether the population trends reflected in that 2040 prediction will continue. People are leaving high-cost-of-living states and moving elsewhere. It is true that California out-migration has exceeded its in-migration? That does not mean, however, that its population has declined. Instead, while the rate of its growth has slowed to a trickle, it still grew by 141,300 from 2018 to 2019, a 0.35% growth rate. However, Wyoming, the state with the smallest population, has fewer than 600,000 residents. Even if –miraculously — Wyoming grew by 20%, it would add fewer people to its population than California now does. Wyoming would continue to fall behind in this population race, but it will still have the same senatorial representation as California.

It is true that New York, with the fourth largest state population, has lost residents [and with the results of the 2020 census in, has now lost a seat in the House], but so have the small states of West Virginia and Alaska. The New Yorkers who leave do not get in their modern Conestoga wagons and go to these small states. Significant numbers are not heading to West Virginia, Alaska, or even Nebraska, whose growth rate from 2017 to 2018 was only slightly above California’s at 0.6%.

The population disparities among the states will only increase. At the end of the coming generation perhaps 20% of the population will select the Senate’s majority.

You might also say that the increasingly undemocratic representation in the Senate is what the founders of the country created. Yes, of course, those who wrote and adopted the Constitution mandated that all states, big or small or in between, would get two seats in the upper house. And perhaps that provision was necessary to get the thirteen states to meld into one country, but that, of course, does not mean that it is right for today. Those founders, unless they were on substances much different from the copious amounts of cider they drank, could not have imagined states with populations approaching 40 million.

The Constitutional framers did not create a Senate with hopes that a small portion of the population would control the Senate. A national census had not been undertaken when the Constitution was drafted, but the drafters’ views of the relative populations of the states can be seen in the Constitution’s Section 2 of Article I where the document prescribed the allocation of Representatives for the original House. New Hampshire would have three, Massachusetts eight, Rhode Island one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three, for a total of sixty-five.

The framers thought that the three largest states (this calculation included the infamous three-fifths clause) would have twenty-six representatives, indicating the belief that Virginia, Massachusetts, and Pennsylvania had 40% of the population. Both Maryland and New York were allocated six Representatives. These five states, the framers believed, had about 57% of the population. Together, of course, they had ten seats in the twenty-six-person Senate, or about 38% of the Senators, while the states with 43% of the population would have 62% of the Senators. This, of course, was an imbalance, but it was nothing like the coming disparity where 50% of the population is expected to live in just eight states by 2040. They will only have 16% of the Senators, and, thus, a minority of the population will have 84% of the Senators. 

Whether or not two-Senators-per-state is a good provision today, it is what we have because of what happened in 1787. It is not because we today have determined it is the best policy for our governing structure. But even if almost all of us concluded that we should have some other way of allocating Senators, it wouldn’t be changed. Of course, the Constitution can be amended, which requires approval from two-thirds of each house of Congress and ratification by three-quarters of the states. The states are treated equally, and the lack of approval from thirteen states, no matter what portion of the population they contain, would doom an amendment. The amendment process in general is difficult, but in reality it is impossible for changing the Senate’s composition. The Constitution’s amendment provision, Article V, says that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” I don’t think that I am being overly cynical by concluding that Alaska and Wyoming and other states would not willingly give up their “equal” Senatorial representation.

There is another possibility for ameliorating the increasingly undemocratic governmental structure. Large states such as Texas or California could divide themselves into four or six separate states, each with two Senators. The Constitution’s Section 3 of Article IV, however, says that such division can only be done with the consent of Congress. Again, I don’t think that I am being overly cynical by concluding that the Senate, where the overwhelming majority of Senators will come from the smallest states, is not going to approve the admission of such new states into the Union.

So . . . a smaller and smaller minority of the population will select a majority in the Senate. What, if in addition, the electoral college deviates further and further from the majority’s vote? Will “the people” see their government as legitimate? With these governmental structures unchangeable within our Constitutional confines, what will then happen?

The famed philosophers John Lennon and Paul McCartney seemed to advocate a mind change instead of a revolution when change might be desirable but difficult: “You say you want a revolution/ . . . But when you talk about destruction/ Don’t you know that you can count me out/ . . . You say you’ll change the constitution/Well, you know/We all want to change your head/You tell me it’s the institution/Well, you know/You better free your mind instead. . . .” But at least for me, I don’t think I can change my mind so that rule by an increasingly small minority in my country will really be all right. I don’t want to live in the equivalent of a banana republic.

But, then, what’s left? With no constitutional method for change, perhaps only the words of Jefferson show the path to a better democracy: “I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical. . . . It is medicine necessary for the sound health of government.”

Or perhaps we should contemplate the words of Robert Kennedy: “A revolution is coming—a revolution which will be peaceful if we are wise enough; compassionate if we care enough; successful if we are fortunate enough—but a revolution which is coming whether we will it or not. We can affect its character; we cannot alter its inevitability.”

We should start considering the extra-constitutional changes we are assuredly going to face.