The Constitution As It Is (vs. How We Think It Should Be)
How the Supreme Court could upend the Electoral College, a split in the Methodist Church, and a far-out proposal to "pack the Union" with 127 new states.
After the 2016 election, some frustrated Democrats tried to encourage members of the Electoral College pledged to vote for Trump to instead vote for Hillary Clinton or some other person, so as to deprive Trump of the 270 votes needed for an outright victory. Only ten electors sought to change their votes one way or another—not enough to affect the result—but the possibility that the election’s expected outcome could be overturned by “faithless electors” seemed to reveal yet another flaw in our much-touted constitutional system.
Now the Supreme Court has agreed to hear a case that may decide once and for all whether electors are bound to vote for the presidential candidate who won the popular vote in their state. Though it would likely cause havoc in the coming 2020 elections and beyond, I’m hoping the Court rules that electors can indeed vote for whichever candidate they want. This is clearly how the founders intended the Electoral College to work. It was meant to be an elite body of upstanding, wealthy citizens who, possessing greater “information and discernment” than the average voter (as Hamilton put it), could hit the brakes any time the populace opted for a candidate threatening to entrenched economic interests and the established political order. What intrigues me about the Court possibly upending the Electoral College as we have known it is that it cannot possibly be depicted—like the Citizens United and Shelby County decisions—as a reactionary undoing of the great democracy the founders bequeathed us. Instead, it would return us to the anti-democratic system they tried to set up in the first place, reformed only partially, and fitfully, in the nearly two and half centuries since.
If the Court decides to strike down the Colorado and Washington state laws which require electors to vote for the candidates who won the popular vote in those states (27 other states have such laws on the books as well), it will reveal how wide the gap really is between the system as it was designed more than two centuries ago and how we want our country to be governed today.
We try retroactively to bend the Constitution to our liking, when what we really ought to do is amend it to adapt to present-day inclinations and needs. That, however, is extraordinarily difficult—any amendment requires support from both houses of Congress and three-fourths of the states. What we really really need to do, then, is amend the amendment procedure itself, which would almost certainly require calling a new constitutional convention. Demystifying our broken presidential selection process, by showing how it was really set up to thwart rather than channel popular opinion, may lead to more Americans on both sides of the aisle concluding that the time has finally come to reassess—and if necessary wholly rewrite—our badly outdated founding charter. About which, more below…
As I expected, the Second Civil War did not begin this past Monday on the streets of Richmond. The Martin Luther King Day gun-rights rally at the Virginia capitol produced countless scary images of doughy-faced white men armed to the teeth (outside the small area where Gov. Northam banned weapons), but no physical violence ensued. Yet as I wrote last week, the point for activists in Richmond was not really to overthrow the government or launch a race war—the FBI arrested some who did intend such mayhem. Rather, the rally acted as a megaphone for their threats to upend the political system if they do not get their way.
It’s fortunate Richmond did not become another Charlottesville, but the deeper dynamics that led to it remain unchanged. If I were a hard-core second-amendment absolutist—that is, a historical illiterate—I would be pleased that my and my pals’ pledged willingness to die rather than submit to mandatory background checks before purchasing yet more guns was so widely covered in the press. Such demonstrations are meant to raise the cost for politicians who would defy them. (Far-right internet provocateur Alex Jones drove around Richmond on a truck he dubbed the “Battle Tank” shouting that it was Virginia’s democratically-elected politicians, not the armed militiamen, who were trying to start a civil war.) We will see in the coming weeks whether Democrats go through with the changes, and how the far-right reacts.
(Curious side-note: The Base, a white-supremacist group whose members the FBI arrested in the days before the Richmond rally, has the same name as Al-Qaeda; thus 21st-century US history comes full-circle.)
The historian Sarah Barringer Gordon had an interesting piece in The Washington Post about the United Methodist Church’s plan—still awaiting final approval—to split itself in two. One group would embrace progressive values like marriage equality and broad-minded toleration, while another would, Buckley-like, stand athwart history yelling “stop. (It will adopt the modifier “Traditionalist” before Methodism.) Each individual local church could decide for itself which side to join.
In her piece, Gordon compared this schism to the last time Methodism divided, in 1845, when it, like other Protestant churches, split into Northern and Southern associations at odds over slavery. Northerners rebelled over Methodism’s increasingly vocal espousal of pro-slavery positions and elevation of slaveholding clerics to positions of power in the Church. They worried about losing ground to other denominations in the free states where parishioners rejected slavery as a violation of divine law. Eventually, the Church split in two, a bitter divorce which eventually made it all the way to the Supreme Court. Political leaders at the time, as Gordon relates, saw that first Methodist split “as an ominous sign for the future of the country.”
Similarly, today’s Methodist break-up bodes ill for our Union. Back in the 19th century, the Church split along a fairly clean line between North and South. It’s hard to discern such a line today. While some find comfort in this difference between our era and the (first?) antebellum period, I am not so sure. It may only mean that if a split comes it will be even messier, and harder to repair, than the last time the country broke apart.
One final note: I’m still working my way through this far-out proposal from the Harvard Law Review to “pack the Union” by reducing the size of Washington, D.C. to a few buildings on Capitol Hill and admitting the District’s 127 neighborhoods as their own separate micro-states, with full membership in the Senate. Doing so—simply by a majority vote in each house of Congress—would give Democrats the ability to force through four constitutional amendments vitally necessary, the journal claims, for making the American government truly democratic:
Take power out of the hands of the Senate, where votes are unfairly apportioned equally to states no matter their population, and give it to a new body;
Radically expand the size of the House of Representatives to make it more, well, representative;
Abolish the Electoral College; and
Alter the rules for amending the Constitution to make it simpler to make subsequent changes.
The great thing about this plan is that it is entirely constitutional, and, as Vox columnist Ian Millhiser notes, not entirely unprecedented. (States have often been admitted to advantage one party over another.) Though presented in the formal, footnoted guise of an unsigned law review note, the proposal is of course far-fetched, and perhaps even satirical. I think, as some commentators rather naively said of Trump in 2016, that it should be taken seriously but not literally. As our political paralysis continues and worsens, as the population disparity between the largest and smallest states in the Union continues to grow, as the obviously anti-democratic parts of our constitutional system became less and less excusable, such radical reform proposals are likely to be aired with increasing frequency and embraced by more and more Americans. This particular “pack the Union” plan isn’t going anywhere, but neither is the profound and fully justified frustration that it reflects. Just the other day, when 53 Republican senators outvoted 47 Democrats on whether to subpoena documents from the White House in Trump’s impeachment trial, Millhiser noted that the states represented by the minority side are inhabited by 15 million more people than those represented by the majority. “The people should not tolerate a system that is manifestly unfair,” observes the Harvard Law Review. They shouldn’t, and they won’t. One way or another, our unfair system has to change if it is to survive.
Impeachment? What impeachment? I’ll be back next week with observations about the latest Washington mishegas. In the meantime, thanks for reading this newsletter and for sharing it.