Originally posted at DeTocqueville.US: http://www.detocqueville.us/2010/08/why-the-electoral-college-works/

I suppose it should come as no surprise given their love of centralized control, that many liberals have been recently calling for a national, popular election for president rather than the current Electoral College system.  But this recent trend is a great example of how little people understand the Constitution as well as how little respect for it the Left really has.

Six states have already passed measures that would bypass the constitutionally-mandated Electoral College system.  Massachusetts governor Deval Patrick had this to say when he signed the measure into law earlier this week:

“I am proud to join other states in this effort to bring more voters and more states into the presidential campaign process,” the Democratic governor said in a statement. “Voter participation in all 50 states is critical to the strength of our democracy and the national popular vote movement will bring more voters into the fold and ensure that every vote counts.”

from http://www.boston.com/news/local/breaking_news/2010/08/mass_governor_p.html

There are several fallacies in Gov. Patrick’s statement, but let’s first examine why the Electoral College exists before we get into those problems.

One of the key issues at the Constitutional Convention of 1787 was how to maintain the balance between the big-population states and the small-population states.  The Great Compromise was the solution to this in the Legislative branch.  This created a bicameral legislature composed of a House of Representatives that would be based on population (thus pleasing large states like Virginia and New York) and a Senate with two members appointed from each state regardless of size (thus pleasing small states like Georgia and Rhode Island).  It should be clear why such a compromise was necessary (as well as why the debate prior to this was so heated and took so long).  The large states didn’t want their citizens deprived of influence by being lumped together with the same representatives as a small state, but the small states didn’t want to join into a union that would roll over all of their concerns by majority rule.

This illustrates two of the foundation principles of the Constitution: majority rule with minority rights and federalism.  What many people may not understand is that the Electoral College also protects these very same principles by ensuring that the president was not chosen by a popular vote but by an Electoral College.  The members of the Electoral College are chosen by the state legislatures, and the numbers correspond to the number of Senators and Representatives each state has in Congress.

It should be pointed out that according to the Constitution:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

This means that technically, these states are well within their rights to decide to throw their electors to the national popular vote winner, but constitutionality does not mean this is a good thing to do.  So to illustrate that let’s look at the problems with Gov. Patrick’s statement.

First, he says that “this [is an] effort to bring more voters and more states into the presidential campaign process.”  This statement is historically inaccurate; the Electoral College system, in fact, ensures that presidential candidates cannot ignore small states.  I know some of us in large states (I’m in Texas) lament the amount of attention lavished on Iowa and New Hampshire during the presidential primary season.  However, a popular vote model (even with the facade of the Electoral College) would encourage candidates to ignore low-population states in favor of area of high-population density.  The effect of this would be the opposite of what Gov. Patrick states.

Second, he says “the national popular vote movement will bring more voters into the fold and ensure that every vote counts.”  Again, this is fallacious on several levels.  As stated above, the Electoral College system avoids marginalizing the concerns of small states (there’s that protection of minority rights), but still gives each state representation based on population with the number of electoral votes per state (there’s majority rule).  Thus, each vote still counts and areas of the country that aren’t California and New York are still considered, are still important.  The Electoral College system already does what Gov. Patrick claims a national system would do.

Finally, let’s look at the method by which these six states are trying to “bring more voters into the fold and ensure that every vote counts,” because it is here that the great lie to this national popular vote “movement” can be found.  These states have decided that they will pledge their electors to support the winner of the popular vote.  The effect of this is not to give each vote equal measure, but to actually disenfranchise voters in those states.  For example, if Candidate A receives more of the popular vote nationally, but Candidate B receives more of the popular vote in the state, Massachusetts’s electors would go not to the candidate that her voters chose (Candidate B) but to Candidate A.

How does disregarding the voters in your state “ensure that every vote counts”?!  This is ridiculous sophistry, and Gov. Patrick (as well as the other governors who signed similar measures) has done his fellow citizens a great disservice: he has taken their voice and shackled it to the national sentiment, regardless of how they vote.

If these states and others really wanted a popular-vote system that actually represented their voters, they would pledge their electors in a proportional model, not this sham.  Instead they show their true intentions by disenfranchising voters while claiming to do the opposite.  We already have a model that does what they claim to do; let’s let it work for us.

The federal government has been steadily, with great jumps in times of crisis, expanding its powers at the expense of the states. We see this in the overuse of the Interstate Commerce clause, in federal departments without constitutional authority (such as the Department of Education), and in the overly-broad interpretation of the Fourteenth Amendment. One result of this is that the individual who wishes to be involved in politics finds their attention being drawn ever toward Washington. It is no wonder, then, that many individuals find they are not well-represented by the 536 most-public faces of the federal government.

This shouldn’t be a problem given the way the Constitution structures the federal government. The federal government is supposed to be concerned primarily with external matters (treaties, defense) and internal matters among the several states (interstate commerce). Those issues of the most direct impact to the individual are, according to the Constitution, under the power of the states or the individual people. If the federal government were still within constitutional limits, then, people would find themselves in a better position to be represented. The mayor of a city, the city councilman, the county, the state representative: these should be our primary focus for representation in government.

How can a president personally represent 300 million people? How can a senator represent every person in a state individually? They can’t, and they shouldn’t be expected to do so. But this feeling of not being represented in Washington is a direct result of the expectation that it should be so. And that expectation is itself a result of the encroachment of the federal government into the everyday lives of citizens.

Our direct contacts with the federal government should be few and far between; our contact with local and state governments frequent and often. If people want to be represented by government, they should call for a return to constitutional limits on federal power and return power to the individual and the states.

By the way, apparently you can just peel an apple covered by radioactive fallout, and it’s perfectly safe to eat.  Just be careful to dispose of the peel correctly; it’s still radioactive!

[Note: If you're reading this on Facebook, check out the post on R&G here, or the original video from the Internet Archive here.]

When George Orwell wrote 1984, he was primarily attacking Stalin’s regime in the Soviet Union and warning the rest of the world against following a similar path.  It should be remembered, however, that Orwell also foresaw the possibility of that world coming about not just through communism of the Soviet variety, but also through a combination of large corporations and government.  This story from Gizmodo (which I heard about on the podcast Buzz Out Loud at Cnet, and which originally came from Boing Boing) is fittingly accompanied by a picture from the 1950s movie of the book.

These two organizations have consistently used their influence with many congressmen (and, I know this will come as a shock, those congressmen’s ignorance) to further their own agenda at the expense of our rights of ownership and unwarranted search and seizure.  They have persuaded the government to negotiate copyright treaties in secret, without public oversight, and now they are going even further, enlisting ISPs to spy on their customers and asking for software that could scan users’ computers.

I know this sounds a bit alarmist, but this is the sort of thing we criticize the Communist government of China for doing.  The Bill of Rights protects us from the federal and state governments’ overreaching their power, but we (as a people, not a government) need to keep a critical eye on these large corporations.  This is not capitalism; this is not a free market.  This is corporate welfare of the worst sort.

As far as Ms. Loesch and Ms. Moore go, they are correct.  The FCC’s attempts to gain more power for itself (outside of Congress’s mandate) and the calls for more government regulation of the Internet are a bad thing.  Unfortunately, their description of net neutrality in just these terms mischaracterizes the issue.  I’ve been following this for years, and I think we need to spell out the issue completely to understand it.

We can approach net neutrality in two different ways.   Loesch and Moore look at this way: companies should treat every application (Skype, http, bittorrent, whatever) exactly the same.  So from this perspective, an ISP cannot give more priority to Skype (which uses a lot of bandwidth) than it does to a basic webpage.  From this perspective, net neutrality doesn’t make any sense, because ISPs would be unable to manage their network to give users a smooth experience.  And they’re right; this doesn’t make any sense.

But this isn’t the only way to look at it.  Now imagine that an ISP (say, Comcast for instance) buys a TV network (crazy, I know), and that they decide, “Hey, you know that competing TV network?  What if we slow their traffic down so that users have a bad experience on their website, but we give more priority to our own offering?”  So Comcast buys NBC, and then shapes their traffic so that visitors to CBS or ABC have their traffic slowed, while traffic to NBC or Hulu is prioritized.

I’m all for companies making their own business decisions, and if they feel they need to do traffic-shaping, that’s  cool.  I also understand the idea of giving themselves an advantage.  But there’s a couple problems with all this.

First, this all needs to be done upfront.  I’m not that interested in the traffic-shaping for network stability, but if Comcast is going to give priority to something, we need to know that upfront.  Second, there’s very little real competition in the ISP space.  What this means is that if I, as a customer, don’t like what Comcast is doing, I have very few choices about going somewhere else.  And without choice, the customer cannot put pressure on the company to get what they want.  This situation, by the way, was created by government intervention, a legacy of the old monopolies of the cable and phone companies.

So what’s the answer?  For the conservative, I think it’s clear.  We cannot trust the government to regulate net neutrality, but we also need to expand competition by further getting the government and corporate welfare out of the way.  This way companies will be forced to compete, and the Internet can remain truly neutral.

The general interpretation on this, including my own and the dude filming (who says, “Gotcha!” in response), is that here was another Democrat with no regard for constitutional limits on the federal government.  Recently, Rep. Hare released a video on his own YouTube channel as a response to it.

His basic point is that when he said he doesn’t “worry about the Constitution on this”, he meant that there were no constitutional worries for him, that he felt the health care bill was perfectly constitutional.

Now, the funny thing is, I don’t know which would worry me more: a general disregard for the Constitution or a wrong interpretation of it.  Judging by his own words in both videos, I honestly think he really doesn’t see a constitutional problem with health care, and that while he claims to want to uphold the Constitution, he doesn’t know what’s in it.  In fact, he cannot point to a constitutional basis for federally-mandated health care.

Having watched the whole original video, I also find Rep. Hare’s justification of the bill interesting.  He says (and I believe he’s being honest here) that he cares more about the people impacted by health problems than he does about the constitutionality of the bill.  I point this out because it’s an interesting parallel to other constitutional issues, in particular the right to privacy and the rights of criminals.  Proponents of greater government surveillance and harsher punishments for criminals often make the same claims: they care more about the safety of our citizens than they do about terrorists and criminals.  Yet those on the Left are quick to point out that the Constitution guarantees certain rights and protections.  I find it interesting that those claiming to uphold the Constitution (such as the ACLU) in those matters turn such a blind eye to it in this case.

If a number of political societies enter into a larger political society, the laws which the latter may enact , pursuant to the powers intrusted it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed.  It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government, which is only another word for POLITICAL POWER AND SUPREMACY.

Here Hamilton lays out the basic reasoning for the Supremacy Clause of the Constitution.  Essentially, his main point is that the supremacy of the Constitution is assumed by its very existence.  I would also point out that we have here a strong argument against secession.  Hamilton continues to explain how the supremacy of the federal government is still a limited supremacy:

But it will not follow from this doctrine that acts of the larger society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land.  These will be merely acts of usurpation, and will deserve to be treated as such.

So, the Supremacy Clause does not give supremacy to every law passed by Congress and signed by the president.  A law outside of the powers delegated to the federal government is an “[act] of usurpation… to be treated as such.”  Such a law does not deserve to be followed by the people (i.e. civil disobedience).

Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government.  It will no, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution; which I mention merely as an instance of caution in the convention; since that limitation would have been understood, though it had not been expressed.

I find it interesting that Hamilton takes these ideas as understood.  In fact, the Constitutional Convention of 1787 was acting with “caution” by including a supremacy clause in the first place, and understood that clause to only apply to laws “pursuant to the constitution.”  In other words, the Supremacy Clause, like the Necessary and Proper Clause, is limited in its scope.  We would do well to remember this.

http://newsbusters.org/blogs/geoffrey-dickens/2010/03/29/chris-matthews-gets-schooled-tea-partier

As I mentioned in the previous post, this exchange on Chris Matthews’s Hardball raised two important issues.  The first is the Left’s obsession with race, gender, and sexual orientation.  The second, and I believe more important issue, is the place of the 10th Amendment in our federal system, and why it’s important in all issues of federal power.

In the exchange, Melissa Harris Lacewell, a professor at Princeton, says:

Well, well let me just suggest this. That the tea partiers by using the language of tea party have asked us to draw a parallel between their movement and the Revolutionary War movement. But I think if we look more carefully we’ll see that in many ways the tea party movement resembles more closely the kind of secessionist feelings that were both part of the Confederacy before the Civil War and then also remained in the post-civil war Reconstruction era. So in other words-

At which point she is cut off by Dana Loesch (a conservative radio talk-show host) with”

It’s about state sovereignty not secessionism. It’s about 10th Amendment principles.

This is a great exchange, and demonstrates why the 10th Amendment has been so much maligned.  First, we’ll look at the text of the amendment, and then we’ll take a brief look at the history of state sovereignty.

The Constitution

The 10th Amendment states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

We can divide this into two key sections.  The first is “powers not delegated to the United States by the Constitution…”  What are the delegated powers?  For the most part, these are contained in Article One, Section 8 of the Constitution in the Enumerated Powers (so called because they are numbered).  I won’t list all of them, but you can read them here.  In McCulloch v. Maryland, Chief Justice Marshall wrote:

This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted. [emphasis mine]

So the point of enumerating powers in the Constitution, indeed of having a constitution at all, is to limit the power of the federal government.  These limits are placed upon the federal government because government power is, by its very nature, coercive.  As George Washington said, “Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master.”  Thus, the Founders created through the Constitution a limited government.

Now, in the debates to ratify the Constitution, many worried that, while (as Marshall points out above) the presence of a constitution by nature limits the government, there needed to be specific protections for the people and the States; thus, the Bill of Rights was adopted as the first ten amendments to the Constitution.  The last two of these protect the people and the States from both too strict and too liberal a reading the Constitution.  On the one hand, the fact that rights are mentioned does not mean these are all the rights (cf. the 9th Amendment); on the other, powers not mentioned specifically delegated to the federal government are retained by the States and the people.

All of this seems relatively clear-cut, but of course, it can’t be that simple.  First, interpretations by the Supreme Court establish precedents which are binding unless overturned by the Supreme Court itself.  Second, the 10th Amendment, and the issue of State Sovereignty, got historically caught up in the struggle over slavery.

Slavery and States’ Rights

All nations have their national shame, and slavery is the United States’ greatest shame.  In preserving the institution, the Southern states used many different tactics and arguments.  One of those was the 10th Amendment.  The Constitution, as it was drafted, did not give Congress any power over the presence of slavery in the United States.  It did include a stipulation about the importation of slaves (which didn’t go into effect immediately), but other than that, slavery was not mentioned.  As a failure of many of the Founders’ resolve, this has been much lamented, but it was seen as a necessary evil for the greater good of creating the union.

Thus, from a strictly constitutional perspective, the defenders of slavery were right in this respect: neither Congress nor the president could outlaw slavery, and any direct attempt to do so outside of constitutional amendment would be unconstitutional.  Now, it should be noted that it was the (over)reaction of the soon-to-be Confederate States to the election 0f Lincoln that led to the Civil War, but the end result of the conflict as far as slavery was concerned was the passage of the so-called Civil War amendments: 13th, 14th, and 15th.  It was acknowledge that constitutional amendment was the only solution, and the rebel states were required to accept these amendments as part of being readmitted to the Union.

In the post-Reconstruction era (after 1877), the States’ Rights argument (with the 10th Amendment as part of it) continued to be used to suppress the civil rights of African Americans, and for the most part the Supreme Court upheld this (cf. Plessy v. Ferguson).  This fact has been touted by detractors of States’ Rights as an example of why the federal government should act unconstitutionally at times.  But this argument is completely wrong.

Civil Rights and the Constitution

The reason this is wrong is quite simple: sometimes (maybe more often at times) the Supreme Court is just wrong.  You see, the Civil War Amendments contain what has become one of the most important amendments in the Constitution: the 14th Amendment.  This amendment gave the federal government the responsibility for protecting “due process” and “equal protection.”  This amendment did not apply just to the federal government (for example, the 5th Amendment already contains a “due process” clause), but for the first time applied directly to the States.  Thus, federal intervention in segregation and other civil rights issues was constitutional.

The problem before the landmark Brown v. Board of Education of Topeka was with the Supreme Court’s failure of interpretation.  The 1890s court failed to uphold the Constitution against segregation’s assault upon it.

The 10th Amendment and Federal Health Care

So, what does all this mean for the current debates over state sovereignty, especially as it relates to health care?  We can break this down into a couple points.

First, does health care reform fall under the powers of Congress?  In so far as we are concerned with Interstate Commerce (one of the Enumerated Powers), then yes, I think it does.  In fact, one of the chief reforms I believe should have been enacted is the extension of health care insurance across state lines.  However, federal government-run health care (the “public option”) is another matter entirely.  Nothing in the Constitution suggests that the government should be running an insurance company, and to call such a thing “competition” is preposterous for a number of reasons outside the scope of this article.

Second, if a “public option” is unconstitutional, what other option do we have?  This is the most important bit.  There is nothing in the U.S. Constitution that forbids the States from having their own health-care systems.  In fact, it would only fall under federal jurisdiction if it crossed state lines and became Interstate Commerce.  I haven’t researched every state to find out if they have their own public options, but it seems to me that this is the best solution.  The States are closer to the people (and thus more directly responsible to them), and each state would be able to formulate a plan that would work best in that state.

The fact that this is so is shown by the very legislation passed by the Democrats (or at least in the process).  Early on, various states were getting exceptions to the rules, exceptions negotiated by their representatives to 1) get their support and 2) get the best (one hopes) for their constituents back home.  This kind of thing should be shameful in a federal bill, but it shows that each state needs to have its own options outside of a federal mandate.  Also, much of the bill concerns an expansion of Medicaid, which, while federally mandated (ugh!) is largely administered by the States for the very reasons I cited above.

Thus, those states opposed to the recently-passed health-care bill do have an argument, one that has nothing to do with unconstitutional secession.  This conflict has been building for decades, but has now come to a head with this particular expansion of federal power.  The 10th Amendment, though much maligned both by segregationists and nationalists in the past, must be upheld for the Constitution as a whole to stand.

If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.  The propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded. [Emphasis mine.]

This quote struck me for several reasons.  First, we should always remember that the government is our “creature.”  This is the concept of Popular Sovereignty.  The government is ours, not a few politicians in Washington, not large corporations, not foreign meddlers, but our own, and we should remind those we have graced to be our representatives of that on a regular basis.

Second, what the federal government can and cannot do should always be determined by the Constitution.  Objections to a law can be formulated in terms of political expediency, pragmatism, ethics, or any number of approaches, but support must always  include the constitutionality of the law to be enacted.

I have another great quote from this particular passage of The Federalist which I will post separately.

The above exchange, from Chris Matthews’s Hardball, has brought two topics to mind, both of which I will cover in different posts. The first is the Left’s use of race and gender as a means to steer debate away from the issues and instead instigate ad hominim attacks on their opponents.  Now, I want to point out from the beginning that this isn’t a case of “this side does this, while the other is blameless.”  We know that there are people on the right who do similar things.  But the abundance of these sort of attacks on the Left, and their spread through the mainstream media, shows that they are systemic on the Left.

The discussion Matthews initiates begins from this very premise.  He states, “Is this fight, from the tea party side, aimed at the, or ignited by the health care defeat last week they suffered, about ethnicity and gender and orientation, sexual orientation or is it about the substance of the issue?”  The very fact that this is the premise of his discussion demonstrates his position.  If Matthews believed that the tea partiers were concerned with the substance of the issue, he wouldn’t even raise this question.  So, from the start we know what Matthews’s biases are.  Of course, by focusing attention on the idea that tea partiers only oppose federally run health-care, bigger government, and higher taxes because they are racist-sexist-homophobes, he can ignore the substantive issues being raised by the tea party movement.

An important question, however, is why leftists are so quick to raise the spector of racism-sexism-homophobia at the drop of a hat?  If we look at the focus of leftist politics, we can easily see the reason.  If you spend all your time focusing on people’s race, gender, and sexual orientation, you will often project the same on to others.  Many leftists just cannot believe that everyone is not obsessed with gender, with race, with sexual orientation.  Furthermore, there is an air of superiority, a “How dare you?!” attitude to any opposition to their policies.  They see themselves as enlightened despots who hold the answers to society’s ills, and if we oppose them, there must be something psychologically wrong with us.

Unfortunately, there’s little we can do to convince hardcore leftists that we conservatives are not the way they see us.  On the other hand, they are far in the minority, and we don’t actually have to convince them at all.  If we focus our message on the majority of Americans (and 40% already self-identify as conservative), we can institute real change in our country.