Thanking the Founding Fathers for Our Constitutional Mess?

Melvin A. Goodman

 

“On some great and glorious day, the plain folks of the land will reach their hearts desire at last, and the White House will be adorned by a downright moron.”

– H.L. Mencken

“Democracy is the art and science of running the circus from the monkey cage.”

– H.L. Mencken

We cannot blame the Founding Fathers for the “democracy” that we have because we don’t truly have a democracy.  In fact, the Founding Fathers did everything they could to avoid the possibility that the entire citizenry would have an essential role in electing our government.  After all, they created the Electoral College that placed Donald Trump in the White House in 2016…and could keep him there for another four years.

The delegates to the Constitutional Convention in 1787 were antidemocratic and conspired to restrain the “turbulence and follies of democracy” and what a New York delegate referred to as “popular phrenzy.”  The brilliant nationalist from New York, Alexander Hamilton, who has been lionized for all time in the popular play by Lin-Manuel Miranda, emphasized that “all communities divide themselves into the few and the many.”  According to Hamilton, the few were the “rich and well-born,” and the many were the “mass of the people…who were “turbulent and changing” and “seldom judge or determine right.”  Hamilton believed it was vital to give the “rich” a “distinct permanent share in the government.” James Madison prevailed; he believed it would suffice to create strong institutional filters on the powers of the ordinary citizen.

The most important “filter” was the Electoral College, which meant the President would be chosen not directly by the voters, but by electors chosen by the states.  In Article II, Section 1 of the Constitution, the Founding Fathers required each state to “appoint…a number of Electors, equal to the whole Number of Senators and Representatives” to select a president.  Similarly, the Senate would be chosen indirectly, and the Supreme Court would be chosen by the president with the advice and consent of the Senate.  Only Benjamin Franklin spoke up forcefully for the “virtue and public spirit of our common people.”

Over the past two hundred years, hundreds of bill have been introduced in the House of Representatives to abolish or reform the Electoral College, which the late Senator Estes Kefauver (D-TN) in 1961 called a “loaded pistol pointed at our system of government.”  The closest the Congress got to reform was in 1969 when it passed a constitutional amendment to create a binding national vote.  It had the support of President Richard M. Nixon, but it died in the Senate where southern segregationists killed it.

We have known for two centuries that the Electoral College was a flawed institution.  In the election of 1824, Andrew Jackson won the popular vote and a plurality of the electoral vote.  The election, however, was decided by the House of Representatives where John Quincy Adams gained the support of Henry Clay be offering him the position of Secretary of State.  This was known as the “corrupt bargain,” and Jackson campaigned successfully on the basis of the corrupt bargain to defeat Adams in 1828.  Then there was the mess of 1876, which wasn’t settled until several days before the inauguration, when the Democratic candidate, Samuel Tilden, allowed his Republican opponent, Rutherford Hayes, to enter the White House in return for removing Federal troops from the South and thus putting an ending to Reconstruction.

In the past two decades, the electoral college gave us George W. Bush and Donald Trump, who were not popularly elected.  Al Gore had more than 500,000 votes than Bush, and Hillary Clinton had nearly three million more votes than Trump.  Our history would have been far different with different electoral outcomes.  Bush’s deceitful invasion of Iraq in 2003 is only one example.

In view of the current imbroglio over an appointment to the Supreme Court, the eventual confirmation of Trump’s third justice will mean that two presidents without a popular majority (Bush and Trump) will have placed five judges on the court, creating the most conservative court in American history.  There is overwhelming popular support for the Affordable Care Act and women’s right to an abortion, but five conservatives could end both.

Fifteen states and the District of Columbia have passed resolutions to create a National Popular Vote Interstate Compact that would force electors to vote in favor of the winner of the national election and not their own state elections.  These states and the District represent 196 electoral votes, so additional states are needed to represent an additional 74 electoral votes.  Today, every electoral vote in the small state of Wyoming represents 90,000 votes, while every electoral vote in the state of California, which is the fifth largest economy in the world, represents 715,000 votes.  When James Madison, who drafted so much of the Constitution and the Federalist Papers, was asked to explain why the Founding Fathers accepted the Electoral College, he admitted that they were tired and impatient.

The Founding Fathers did additional damage in Article I, Section 4 of the Constitution that gave state legislatures the power to establish the “Times, Places and Manner of holding Elections.”  This important power should not be in the hands of partisans or even bipartisans, but in the hands of nonpartisans.  The Founding Fathers believed that allowing state legislatures to enact election procedures would ensure control, but it is state legislatures that are threatening the count of mail-in and absentee ballots as well as the clarity of election results.

An excellent example of a state official threatening the sanctity of a free and fair election is taking place in Ohio where federal courts have been unable to enforce fairness.  A federal judge in Ohio has ordered the State of Ohio to allow more that one drop box per county for ballots.  Ohio’s Secretary of State, Frank LaRose, has ignored the judge’s order and, as a result, the 800,000 voters in Hamilton County (Cincinnati); the 1.23 million voters in Cuyahoga County (Cleveland), the 500,000 voters in Summit County (Akron) and in Montgomery County (Dayton); and the 1.3 million voters in Franklin County (Columbus) will have only one drop box.  These boxes, moreover will be moved from accessible downtown locations to far less accessible suburbs. LaRose contended that the judge’s order came too late to respond.

The Congress created more potential confusion in 1887, when it passed the Electoral Count Act to resolve disputed elections by declaring that State electoral results that are submitted six days before the meeting of the Electoral College will be considered “conclusive.”  The Electoral College meets in each state capitol on December 14th, and it is possible that this year’s vote count will not meet the deadline.  Any delays, moreover, simply allow Trump and his  “personal lawyer,” Attorney General William Barr, more grist for the mill of a flawed election.

Many of the original anti-democratic features of the Constitution have been addressed by creating direct elections to the Senate and full participation in elections for women and Blacks.  But, In addition to reforming or abolishing the Electoral College, we need to return to the Emoluments clauses in the Constitution, which Trump has observed in the breach; the importance of releasing tax returns, which probably is the key to understanding Trump’s obsequious posture toward Russia; and to ensure that never again can the Attorney General and the Department of Justice serve as the personal lawyer and law firm of the president.  Of course, the most loathsome aspect of the Constitution was the moral failure of dealing with slavery, the “peculiar institution,” and introducing the three-fifths clause to allow southern states to get a third more seats in the House of Representatives and a third more electoral votes.