The Electoral College and the Founder’s Intent

There is a movement now to encourage the electors to choose Clinton over Trump when they meet next week. “It’s what the Founders wanted,” supporters say, with backing to support it. “The whole idea of the Electoral College was to prevent mob democracy, where the people could elect someone completely unqualified.”make-america

While I agree that “completely unqualified” accurately describes our current President-elect, I have to reiterate what I have said here many times:  I don’t care what the Founding Fathers wanted. We shouldn’t be tied to the past simply because of what a bunch of rich white men thought about a world that no longer exists.

My dislike of the Electoral College could not be stronger. My blog post about it a few years ago has generated the largest comment section of anything I’ve posted here, and it still generates lots of hits. And it’s not like the Electoral College hasn’t already changed since its original inception.

If you are in favor of democracy then sure, the electors should choose the person who actually won the popular vote.

But ironically, that’s not what the people calling for the Electoral College to choose Clinton are saying. They want the electors to choose the popular vote winner but that this is the exact opposite of the will of the Founders. The Founders set up the Electoral College to stop the democratically elected winner from becoming President if he was unqualified.

Even if you accept the argument that the electors should choose who they want no matter what the vote was, that’s not the reason the electors should choose Clinton. They should do it to send a message that we’re sick and tired of an anti-democratic provision in our Constitution and that we reject the Founding Father’s idea that the will of the people can be thwarted by an elite group of electors, following an arcane procedure that rewards states over citizens.

How to Honor the Founding Fathers with the Electoral College

“The Electoral College was set up with a specific purpose in mind and we should do what the Founding Fathers want,” people say to me whenever I argue for getting rid of it.

Well, fine. If your desire is to do what the Founding Fathers wanted, then we’ll need to change a few things.Stock Photo of the Consitution of the United States and Feather Quill

  1. Stop having Presidential elections. There’s nothing in the Constitution about them. The Electors are chosen by the state legislatures in any way they wish. They could choose the lobbyists who give them the most money if they wanted to.
  2. How the state legislatures are chosen is not provided for in the Constitution either. So we should allow states to just appoint these people, too.
  3. The Founding Fathers also intended that whoever came in second place would be Vice President. Nothing wrong with that, right?
  4. Even if the states do decide to have elections, those states should only allow white men who own property to vote. Hey, do you want to honor the Founding Fathers or not here?

Of course, in those days where it could literally take weeks to travel from state to state, each state was much more independent and unique, almost like the way the European Union is now. We were less a country than a collection of independent states (which is why we are called the “United States of America” and not just “America”).

That changed quickly. People started seeing the President as the leader of all the people and not as just some figurehead off there in the distance. (Seriously, does anyone know who the leader of the European Union is?)

And the states started having elections to choose this leader. Congress decided on a date for these elections — because that’s not in the Constitution either — and soon, the popular vote winner in that state decided who the electors were. By 1824, this led to the election of Andrew Jackson, exactly the kind of person the Electoral College was set up to prevent getting into the White House. Thus, within forty years of the writing of the Constitution, while some of the Founding Fathers were alive, we had already moved away from the original intent of the Electoral College.

So for those of you who say we should keep it in order to honor what the Founding Fathers intended:  You’re 200 years too late.

Who cares what the Founding Fathers thought?

The Founding Fathers were a bunch of politicians, not too different from the politicians we have today (except that they were all rich white men). Some were tremendously intelligent people who deserve all the accolades they receive. Thomas Jefferson, Benjamin Franklin, John Adams — great men who did their best to create this great experiment.constitution_quill_pen

Others have been lost to history. William Blount? Alexander Baldwin? Pierce Butler? Some were mediocre men, who fought against giving people any power, who argued to keep slavery, who forced the great men into compromises like the 3/5ths clause and the 2nd Amendment in order to gain their votes.

You know — politics.

And that’s why it is so frustrating when the Constitutional Fundamentalists say that we should obey the “will of the Founders” when interpreting the Constitution.  Well, which Founders?  This wasn’t adopted unanimously, you know. To argue that we should never have a position about the Constitution based on who won is like saying we should never question Obamacare because hey, it got passed by some politicians so it’s gospel and cannot be challenged.

And that’s the key — I call these people Constitutional Fundamentalists because they view the document like it’s a religious holy book, handed down by the Founding Gods, and we should obey what the Founders said. (And, of course, 100% of the time, just like religious fundamentalists, these people know exactly what the Constitution means and it matches their own personal views perfectly! Isn’t that amazing!)

The Founders created a foundation for a building — the Constitution provides the very minimalist blueprint. “Freedom of Speech” it says, but it doesn’t go into any detail. Does it include libel and slander? Television and internet? Can you cause a riot and claim this freedom as a defense? Can you reveal military secrets and not get punished? The Constitution doesn’t say.

That means it has to be interpreted, just like it had to be within a few years of its passage, when the Supreme Court had to make decisions and Founding Fathers argued before members of the Court (who were also Founding Fathers) and they didn’t all agree! 

So with all respect to the great men who founded this nation, 230 years later, who cares what they thought? These were guys who thought you could cure diseases through bloodletting. They thought humans could be property, women should be close to property, and killing natives for land was perfectly fine.

This would be like trying to add air conditioning and heating to your home but being told “No, the original blueprints from 200 years ago don’t mention that, so you can’t do it.” We should not have our society limited, Amish-like, to a time that no longer exists.

Many religious fundamentalists already understand this. They already ignore the parts of the Bible they want to ignore, recognizing that something that was written so long ago should not guide modern thinking.

Somehow, Constitutional fundamentalists have yet to reach that stage.




Criminal defense attorneys support crime!

There’s a new meme out there against Hillary Clinton which is full of lies, false quotes, and misleading information but that’s nothing new. (You can read about it on Snopes if you wish). The part that bothers me is this:

It criticizes her for representing a criminal when she was a young defense attorney and calls her an “advocate for rapists.”justice

This is the kind of attack we’ve seen before, usually from conservatives. It’s sad that I am seeing my liberal friends post this crap.

Conservatives who say things like that are hypocrites who say they love America while hating one of the very reasons the Founding Fathers fought the revolution: To rebel against a government that ignored basic rights. They put those rights in the first Ten Amendments: The right to counsel, the right to remain silent, the right to not be searched without a warrant and probable cause, the right to be free from cruel and unusual punishment — more than half of the Bill of Rights are about criminal rights.

And what’s to prevent the government from abusing these rights? Why, it’s defense attorneys.

But when we hold police responsible for illegal searches or argue that our clients’ rights are being abused, what do people say? “Oh, he got off on a technicality.” Yes, a technicality called the United States Constitution — the very foundation of our nation.

This is like the people who demand that freedom of speech be denied to speech they disagree with while defending that same right for themselves. Our freedoms are meaningless if they don’t apply to everyone, even people we hate.

Look, most of the people I represent are guilty of something. 95% of all cases end up with a plea. My job is to make sure that the innocent are defended and the guilty don’t have their rights denied or otherwise get screwed by the system.

This is patriotic. This is exactly what the Founding Fathers intended. This is what makes America great — that we, the people, can stand up to a powerful government that does wrong and can win without resorting to violence.

To imply that a defense attorney performing his or her job “supports crime” is an insult not just to attorneys, but to all Americans.



Strict Scrutiny (part two): Constitutional Compromises

The Constitution is a series of compromises, and not a document of Wisdom Handed Down from Our Elders.

In order to get the Constitution ratified, certain concessions had to be made.  In part one, I mentioned how many parts were written purposely vague because that was the only way to get agreement on them. Let’s now look at some more clear-cut examples.constitution_quill_pen

The most obvious may be “The Virginia Compromise.” (Look, it even has “compromise” in its name.) The smaller states wanted each state to have an equal vote so that they wouldn’t be ignored. The larger states wanted it to be based on population which would obviously benefit them. In the end, we got both — a Senate where each state gets the same representation no matter how small, and a House where the states with more people get more representation.

Then there are the first ten amendments themselves (the “Bill of Rights”). Many states refused to ratify the Constitution without these protections, and it’s a good thing they demanded them.

But the clearest example of compromise in the Constitution has to do with slavery. Most of the northern states had already abolished it and wanted the entire country to do the same, but the southern states refused. The south was worried that as soon as this Constitution was passed, the northern states would outlaw slavery completely. Without some provisions to prevent this, the south refused to agree to the Constitution.

Rather than split the country within the first ten years of its existence, a series of compromises were worked out. (Sadly, postponing this only led to the bloodiest war in American history a hundred years later.)

First, there’s Article I section 9 which specifically prohibited Congress from passing any law outlawing the importing of slaves before 1808 (twenty years from the Constitution’s signing). Why 1808? Was there something magical about that year? No, that was just the number that compromise produced. (And as soon as 1808 came about, Congress did exactly what the south was worried about and banished the importation of any more slaves.)

Second, there’s the ridiculous 3/5ths clause. The south demanded that when determining how many representatives they would get in the House, that slaves should be counted as “people” even when they were property in every other respect under the law. The north rightly pointed out how stupid this was, but the south insisted and there was another compromise made. We ended up with a provision that held that 3/5ths of every slave would count. No mention as to which 3/5th of the slave counted, though, but apparently it didn’t include the head since the views of the slaves mattered not.

Third, there’s the 2nd Amendment, which allowed the southern states to keep their state “militias” which were basically armed gangs whose only job it was to intimidate slaves and capture ones who escaped. (More on this later.)

So whenever some Constitutional fundamentalist tries to argue with you that the Constitution is concise and “the will of the Founders,” just point out how many compromises there are in it, thus clearly indicating that there is no “will of the Founders.” It’s all agreements and compromises needed to get the thing passed.

Next: A clear, exact 1st Amendment which doesn’t provide for any exceptions, and then all the exceptions there are to it.

Strict Scrutiny (part one): Constitution Fundamentalists

There are religious fundamentalists out there who are convinced that they know exactly what the Bible says.  They take it absolutely literally and have no doubt in their mind what it all means, and anyone who disagrees with their interpretation is simply wrong.  And, amazingly, what the Bible says matches their own personal views perfectly!

There are Constitutional fundamentalists who have the same view — they treat the Constitution like it was written on stone tablets and handed down by the gods.  Sadly, at least one of these fundamentalists is on the Supreme Court.

The problem with this simplistic view is that it fails to take into consideration Constitutional history and common sense.  The Constitution was written by men, not gods, and they did not all agree on the meaning of the words or what should be in there.  constitution_quill_penThere is no more of a “founder’s intent” than there is a government intent on any bill.  Will people years from now claim that the entire Congress agreed unanimously on Obamacare?  Of course not.  So why do people insist on believing that for the Constitution?

The Constitution is a series of compromises, just like everything done by government.   It was written very broadly, with purposely vague words, because that was the only way it could get passed.  It’s meant to be our guidelines for how the laws will be written — our goals, if you will.  It was not meant to be taken literally to the point where there is only one interpretation.

Those who say that there is just one way to interpret it need to explain why, within a few years, there were Supreme Court decisions about it.  These were the exact same people who wrote the damn thing — why would they need to go to court to have someone explain it to them?

One of the first and most important Supreme Court decisions in those early years was Marbury v. Madison, in which the Supreme Court said that they have the right to review laws to determine whether they were Constitutional.  Makes sense, right?  Who else would do that?  But those words aren’t anywhere in the Constitution.  The founding fathers had to interpret them from the overall document.  And clearly, not everyone agreed.  And these were the people who wrote it!

After all, if everyone agreed on the meaning, there would be no need for a Supreme Court at all.

You’d think people would get that, but Constitutional fundamentalists (who, like religious fundamentalists, are always very conservative) cannot accept this.  Justice Scalia, for instance, chides his fellow Justices all the time for getting it “wrong” when they refuse to acknowledge he has super powers to read the minds of the Founding Fathers and know exactly, for instance, what their views were on internet regulations.

Part two:  Examples of compromises made by the Founders

The Constitution as Our Bible

Some people view the US Constitution in the same way fundamentalists view the Bible, as if it were written on stone, never changing, and can never be questioned.constitution_quill_pen

These Constitutional Fundamentalists have something in common with their religious counterparts:  They believe there is only one interpretation of their holy book and — here’s the amazing part —  that interpretation is always exactly in line with their own personal views!

Most of us who study the Constitution for a living are aware that the Founding Fathers, though great men, were not gods.  We know that the Constitution was written by politicians, who made compromises and made sections deliberately vague because that was the only way they could get the damn thing passed.

Those who “know” the intent of the Founding Fathers need to acknowledge that the only thing we can really say is that it was the intent of a majority of them to pass the Constitution as a whole, and they did not necessarily agree on what the words meant at the time.  After all, within a few years, there were cases before the Supreme Court to determine its meaning and its application.  The Founding Fathers themselves were still around and they could not agree!  To think that there is some magical interpretation we can know today, hundreds of years later, is ridiculous.

(NOTE:  This is the first real post for this blog.  There is a lot more I could say on this issue;  in fact, entire books have been written on this topic.  However, my goal with this blog is just to throw out one basic idea per post, to stir discussion, and then to follow up on this with other similar ideas in follow-up posts.  For instance, a future post will discuss whether the interpretation of the Constitution should change as society changes, so hold your comments on that issue please.)