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Why Did the Framers Create the Electoral College?—1st in a Series

Why Did the Framers Create the Electoral College?—1st in a Series

Colorado went Democrat in the last presidential election. But three of those elected as presidential electors wanted to vote for someone other than Hillary Clinton. Two eventually cast ballots for Clinton under court order, while one—not a party to the court proceedings—opted for Ohio Governor John Kasich, a Republican. After this “Hamilton elector” voted, state officials voided his ballot and removed him from office. The other electors chose someone more compliant to replace him.

Litigation over the issue still continues, and is likely to reach the U.S. Supreme Court. Moreover, President Trump’s victory in the Electoral College, despite losing the popular vote, remains controversial. So it seems like a good time to explore what the Electoral College is, the reasons for it, and the Constitution’s rules governing it. This is the first of a series of posts on the subject.

The delegates to the 1787 constitutional convention found the question of how to choose the federal executive one of the most perplexing they faced. People who want to abolish the Electoral College usually are unfamiliar with how perplexing the issue was—and still is.

Here are some of the factors the framers had to consider:

* Most people never meet any candidates for president. They have very little knowledge of the candidates’ personal qualities. The framers recognized this especially would be a problem for voters considering candidates from other states. In a sense, this is less of a concern today because, unlike in 1787, we have mass media through which candidates can speak directly the voters. In other ways, however, it is more of a concern than it was in 1787. Our greater population renders it even less likely for any particular voter to be personally familiar with any of the candidates. And, as I can testify from personal experience, mass media presentations of a candidate may be 180 degrees opposite from the truth. One example: media portrayal of President Ford as a physically-clumsy oaf. In fact, Ford had been an all star athlete who remained physically active and graceful well into old age.

* Voters in large states might dominate the process by voting only for candidate from their own states.

* Generally speaking, the members of Congress would be in a much better position to assess potential candidates than the average voter. And early proposals at the convention provided that Congress would elect the president. However, it is important for the executive to remain independent of Congress—otherwise our system would evolve into something like a parliamentary one rather than a government of three equal branches. More on this below.

* Direct election would ensure presidential independence of Congress—but then you have the knowledge problem itemized above. In addition, there were (and are) all sorts of other difficulties associated with direct election. They include (1) the potential of a few urban states dictating the results, (2) greatly increased incentives to electoral corruption (because bogus or “lost” votes can swing the entire election, not just a single state), (3) the possibility of extended recounts delaying inauguration for months, and (4) various other problems, such as the tendency of such a system to punish states that responsibly enforce voter qualifications (because of their reduced voter totals) while benefiting states that drive unqualified people to the polls.

* To ensure independence from Congress, advocates of congressional election suggested choosing the president for only a single term of six or seven years. Yet this is only a partial solution. Someone elected by Congress may well feel beholden to Congress. And as some Founders pointed out, a president ineligible for re-election still might cater to Congress simply because he hopes to re-enter that assembly once he leaves leaves office. Moreover, being eligible for re-election can be a good thing because it can be an incentive to do a diligent job. Finally, if a president turns out to be ineffective it’s best to get rid of him sooner than six or seven years.

* Elbridge Gerry of Massachusetts suggested election by the state governors. Others suggested election by state legislatures. However, these proposals could make the president beholden to state officials.

* The framers also considered election of the president by electors elected by the people on a strict population basis. Unless the Electoral College were very large, however, this would require electoral districts that combined states and/or cut across state lines. In that event, state law could not effectively regulate the process. Regulation would fall to Congress, thereby empowering Congress to manipulate presidential elections.

* In addition to the foregoing, the framers had to weigh whether a candidate should need a majority of the votes to win or only a plurality. If a majority, then you have to answer the question, “What happens if no candidate wins a majority?”On the other hand, requiring only a plurality might result in election of an overwhelmingly unpopular candidate—one who could never unite the country. The prospect of winning by plurality would encourage extreme candidates to run with enthusiastic, but relatively narrow, bases of support. (Think of the possibility of a candidate winning the presidency with 23% of the vote, as has happened in the Philippines.)

The delegates wrestled with issues such as these over a period of months. Finally, the convention handed the question to a committee of eleven delegates—one delegate from each state then participating in the convention. It was chaired by David Brearly, then serving as Chief Justice of the New Jersey Supreme Court. The committee consisted of some of the most brilliant men from a brilliant convention. James Madison of Virginia was on the committee, as was John Dickinson of Delaware, Gouverneur Morris of Pennsylvania, and Roger Sherman of Connecticut, to name only four of the best known.

Justice Brearly’s “committee of eleven” (also called the “committee on postponed matters”) worked out the basics: The president would be chosen by electors appointed from each state by a method determined by the state legislature. It would take a majority to win. If no one received a majority, the Senate (later changed to the House) would resolve the election.

Next time: Rules governing the Electoral College.

The Left’s Refusal To Accept Election Results vs. Its Constitutional “Super-Precedent” Theory

The Left’s Refusal To Accept Election Results vs. Its Constitutional “Super-Precedent” Theory

Since Election Day, the stock market has soared. The benchmark Standard and Poor’s 500 index, which reflects the stock price of larger companies, has risen by more than 14 percent. The NASDAQ Composite, which measures a wider sample of stocks, has jumped more than 16 percent.

These stunning results were achieved in less than 100 days. Everyone knows the reason: Investors have laid out hundreds of billions of dollars with the expectation of a more-free-market-oriented Republican president and Congress.

By “investors,” I don’t mean the rich. The vast majority of investments are made on behalf of people of modest means. A single pension fund such as TIAA, which represents public employees, handles more than 10 times the wealth of the richest man in the world (Bill Gates).

This stock market rise is a huge vote of confidence in free-market policies, but it is also a warning. Specifically, it is a warning to those on the left who have abandoned Americans’ post-election honeymoon tradition in an effort to trigger what Mark Levin calls a “silent coup.” If the left is successful in neutering Trump or the GOP Congress, we can expect investors to flee the markets in droves. The result could be economic collapse.

The Super-Precedent Theory

When considering whether to alter direction, it is always wise to consider the extent to which people have relied on current policy. In other contexts, the left purports to understand this. Illustrative is a legal theory liberal academics promote called “super-precedent.”

The theory of super-precedent is the Supreme Court should not overrule certain liberal constitutional cases, even if they were decided incorrectly. This is because people have relied on those cases. Abandoning them would be disruptive.

Promoters of the “super-precedent” theory apply it to cases such as Roe v. Wade, the 1973 decision that upended the abortion laws of all 50 states. They also apply it to the court’s 20th-century constitutional holdings that, on specious constitutional grounds, eroded the Constitution’s limits on federal economic regulation.

Yet few, if any, Supreme Court decisions occasion as much reliance as the results of a national election. If Roe v. Wade were overturned tomorrow, no abortions would be undone. In all probability, no person currently pregnant would be denied an abortion. This is because it would take months, perhaps years, for state legal systems to respond to the change. At most, reversal of Roe v. Wade would affect future pregnancy planning in some states.

Supreme Court cases allowing excessive federal regulation have engendered more reliance than Roe v. Wade, but the amount of reliance can be overstated. In Wickard v. Filburn (1942), the Court misconstrued two clauses of the Constitution to permit direct federal regulation of agriculture. If the Court were to overturn Wickard, it would re-establish some constitutional limits on federal regulation—and many business plans would have to change.

 

How the Supreme Court Can Minimize Damage When Properly Overturning Erroneous “Super-Precedents”

But the Court has ways to contain or eliminate the damage. One is to phase in the change. In fact, this is precisely what the justices did when they reversed Plessy v. Ferguson (1896), the long-standing precedent that authorized state-sponsored racial segregation.

If, on the other hand, the left is successful in delegitimizing the GOP president and Congress, there would be no way to contain the damage. The free-market policies investors were promised and relied upon would not be forthcoming after all. Investors would flee the stock market in panic. Countless smaller business and personal decisions not recorded in the stock market would be unhinged as well.

No doubt some on the left would be perverse enough to welcome this result. But those who mean well should realize they are playing a very dangerous game. For the good of the country, it’s time for them to stop being spoilsports and accept the election results.

Note: This article was originally published at the RedState blog.

New Article: Is President Trump in Violation of the Foreign Emoluments Clause?

New Article: Is President Trump in Violation of the Foreign Emoluments Clause?

Recent controversy has centered on President Trump’s businesses accepting payments—such as payment for space in the Trump Tower—from foreign governments. Several prominent legal commentators have begun a lawsuit claiming that the president is violating the Constitution’s Foreign Emoluments Clause by accepting “emoluments” from foreign governments.

That Clause, which is Article I, Section 9, Clause 8, provides as follows:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, emolument, Office, or Title of any kind whatever from any King, Prince, or foreign State.

The term “emolument” appears three places in the Constitution. Article I, Section 6, Clause 2 prohibits a member of Congress from being appointed to an office “which shall have been created, or the Emoluments whereof shall have been encreased” during his current congressional term. Article II, Section 1, Clause 7 prohibits the president from accepting any emolument other than his salary from the federal government or from any state. Some argue that President Obama violated that provision by accepting interest payments on government bonds while president.

In a new scholarly article I examine the Constitution’s use of the word “emolument.” I find that during the Founding Era the word often was used in a sense wide enough to cover both Trump’s and Obama’s conduct. However, I also find that there were two common narrower meanings, and that the Constitution adopted one of those. In the Constitution, the term signifies “compensation with financial value, received by reason of public employment.” Thus, neither Trump nor Obama received unconstitutional “emoluments.”

There are at least two other issues concerning the Trump case that the article does not address:

1. Is he covered by the Foreign Emoluments Clause at all? It applies to those holding an “Office . . . under” the United States. There is a respectable view that this particular formulation does not apply to the president, but only to appointed officers. This argument holds that the framers meant to include the president, they used other phrases, such as “officer of the United States.”

2. If a payment from a foreign government is not an emolument, could it still be an unconstitutional “present?” This obviously depends both on the Founders’ understanding and one the circumstances surrounding the payments. I may investigate this question in the near future.

Trump’s Businesses May Not Violate the Emoluments Clause

Trump’s Businesses May Not Violate the Emoluments Clause

Professor Michael Ramsey of the University of San Diego recently pointed out that commentators who claim Donald Trump will violate  the Constitution’s Foreign Emoluments Clause (actually the Foreign Emoluments Subclause) on the day of his inauguration haven’t done their homework. Specifically, they have not sufficiently researched the meaning and scope of the provision. For example, they assume that market-driven payments to Trump’s businesses are “emoluments” within the Constitution’s meaning of the term. It is by no means clear that this is true.

Founding-era records display at least six variations in the meaning of “emolument” in official discourse. The variations differ significantly in their scope. It will take additional research to determine which of them matches the understanding of the Constitution’s ratifiers.

Variations in the Meaning of “Emolument”

Following are the six, each exemplified with a quotation. All the quotations except the last are from the journals of the Continental and Confederation Congresses, where nearly all the framers and leading ratifiers had seen service. The last is from the records of the Constitutional Convention:

*          “Emolument” could mean any advantage or benefit whatsoever, as in “they should be permitted . . . to share in the blessings of peace, and the emoluments of victory and conquest.” This was the broadest usage, and the common dictionary definition.

*          “Emolument” could mean gain that was specifically pecuniary, including gain attached to a particular office and “private emolument”—that is, money from outside sources, such as trade: Examples: “that honor and emolument should naturally follow the fortune of those who have steered the vessel in the storm and brought her safely to port” and “The emoluments of the trade are not a compensation for the expense of donations.”

*          It could mean the compensation—pay and fringe benefits—attached to a particular office, as in “such as his rank entitles him to . . . and without pay or any other emolument whatever.”

*          It could mean the fringe benefits attached to a specific office but not the pay, as in “that his emoluments and one half of his pay be suspended” or “his request for pay cannot be complied with, and that all the emoluments he derives from the United States are to cease” or “he should be allowed the emoluments but not the pay.”

*          It might include items such as living supplies, extra compensation, and reimbursement for expenses, as in “The value of the additional emoluments of forage and subsistence would amount at the rate of thirty six dollars per month . . .”

*          Or it could exclude one or more of these items, as in “the Post-master general make such an allowance to the postmaster  . . . in addition to the emoluments of his office, as may be a reasonable compensation for his extra services” or “[Pennsylvania] President Franklin moved . . . that the executive should receive no salary, stipend or emolument for the devotion of his time to the public services, but that his expenses should be paid.”

How Does This Affect Trump?

The first two definitions are broad enough to include outside commercial transactions. The phrase in the Foreign Emoluments Subclause “of any kind whatever” suggests that the term should be read this way.

The other four variations are all tied to compensation for holding a particular office. Presumably they would include a salary from the French government to an American official for holding his office. But they would exclude payments made to President Washington if the British government happened to buy some of Mount Vernon’s exported tobacco, and they would exclude fair market rents paid at the Trump Tower.

Arguing for one of the definitions tied to office is the fact that the Foreign Emoluments Subclause uses the word as one item in a series. Pointing in the same direction are the Constitution’s other two uses of “emoluments,” both of which are directed at compensation for holding office.

I’m currently researching the Clause—doing the “homework” that others should have. I’ll keep you posted on what I find.

An earlier version of this post first appeared in The Originalism Blog.