Not many people remember that Patrick Henry, the fiery American patriot and founder who famously declared “Give me liberty, or give me death!” opposed the United States Constitution which replaced the Articles of Confederacy. He believed it gave too many powers to the proposed government and in particular to its Chief Executive. A revolutionary who’d risked all for independence, he didn’t want what he saw as another king, and he believed the new Constitution a threat to American liberties. Ironically, decades later during the Civil War he was claimed by both northern abolitionists and southern secessionists.
Of such complicated characters is history made, but I bring Patrick up because I wonder what he would think of our current constitutional crisis.
I should put “constitutional crisis” in quotes, because it’s not a legal crisis. Yet. But as a student of history it disturbs me that two of our fundamental institutions are experiencing deep legitimacy crises right now. The Electoral College is under attack because under the right circumstances it can choose as our Chief Executive Officer and Commander in Chief a candidate who fails to achieve a majority of the popular vote–an undemocratic result. The Supreme Court is under attack because it’s perceived as an autocratic and therefor undemocratic body in the process of being captured by one of our two major political parties. There is strong support among those who feel that the Electoral College is thoroughly anti-democratic and the Supreme Court is becoming the tool of . . . regressive actors . . . and that Something Must Be Done. Let’s look at each from Patrick’s perspective.
The Electoral College
As currently structured, the Electoral College was intended to check the national influence of the most populous states (the claim that it was constructed to protect slavery in the southern states is a base canard; it got more support in the North than the South during the convention and ratification debates). The EC was originally intended to be a kind of elite debating society–under the Constitution, electors are chosen by the states and the electors were to choose the President–but it became a kind of rubber stamp institution where the electors swear to choose the candidate who wins their constituent’s popular vote. A not-so-trivial legal constitutional battle is now being fought over the question of whether electors must give their vote to the candidate most popular with their constituents. But a larger legitimacy crisis now looms over the entire Electoral College. It pops up every time the EC elects as President a candidate who came in second with the national popular vote.
So what would Patrick Henry think of this?
He’d totally back the legitimacy of the Electoral College, especially when it goes against the popular vote.
Absolutely. Of all the things he worried about with the new Constitution, the leverage the EC gave to the smaller states wasn’t one of them. Quite the opposite. Since he was critical of even the limited powers granted the proposed US President at the time, it made sense that any candidate for that office should enjoy the widest popularity possible, among Mainers as much as Virginians or New Yorkers. At the time of the ratification debates Virginia had 10x the population of Kentucky, and the Electoral College would force presidential candidates to pay attention to the smaller states and not simply act as the Chief Executive of the Big States of America.
How would this look to Patrick, today? As of the 2010 Census, our most heavily populated US State (California, pop. 37 million) has 67x the population of our least populous state (Wyoming, pop. 550 thousand). Trump won the popular vote, and therefor the electors, of 30 of our 50 states. He lost the popular contest in California by 4,269,978 votes, accounting for all of the 2,868,691 votes by which he lost the “national” popularity contest. As one commentator noted, as an illustration of what this meant, you could imagine the 2016 results with Trump keeping every state he won, while adding a 1-vote victory margin “in every state Clinton won except just five states: California, Illinois, Maryland, Massachusetts and New York. That would subtract 2,636,017 votes from Clinton’s total, which would still give her a 232,642-vote majority of total votes. So, Trump would have won 45 states and the District of Columbia representing 74 percent of Americans, which would give him a 413-125 Electoral Vote win. Yet, under the California popular vote model, Clinton would still have won the presidency by 232,642 votes.”
To rephrase that, in 2016, under a single National Majority method for electing our presidents, Hillary Clinton could have lost in every state she won but California, Illinois, Maryland, Massachusetts, and New York (total pop. around 83 million), and she would have won the election. Think about that for a moment; she could have been President of a United States in which a majority of voters in 45 states voted against her. That might still make sense, if we had a unitary national government. But we don’t; we have a national federal government which shares power with sovereign state governments, and in which the powers of our federal government are, in theory, limited.
It concerned Patrick Henry that a strong national government could ignore the majority will of the smaller states, or even most of the states if the largest states formed a political coalition. He would not have been a fan of Donald Trump, who is far from a Small-Government Conservative, but he’d be one of the first to defend the EC, which forces candidates to stump widely as well as deeply, focusing on more than a handful of states. Want a revolution? Create a national electoral system in which our most powerful political figure can be chosen by the popular majorities of just five states. If One Man One Vote meant an end to the EC and domination by a small coalition of states, Patrick Henry would be first in line with “Give me liberty, or give me death!”
The Supreme Court
Nobody really saw Marbury v Madison coming. With one decision, Chief Justice John Marshall established the justices of the US Supreme Court as high priests with the power to interpret the meaning of our holy writ–the sections and amendments of the Constitution–and to invalidate any action or subsequently passed law that violated the sacred national contract. It put teeth into the declaration that “Congress shall make no law . . . “
Because Supreme Court Justices aren’t robots, angels, or Vulcans, every court since has rendered its unappealable decisions based on reason, precedent, ideology, prejudice, partisanship, and often accepted “truths” of their time that turn out to be horribly untrue later. Patrick Henry would not have been surprised. I have no idea if he would have approved.
What he did approve of was the degree of separation between the federal administration (elected and appointed, its composition changing with each election), and the federal courts (whose members’ appointments are essentially for life). While the power to fill judicial seats was a reward for winning elections–the party winning the Presidency and a Senate majority filling the seats to their advantage–the fact that turnover was slow meant that a party would need to hold power for a significant period of time to tilt the judiciary in favor of their politics. The downside, of course, was that a party, on achieving majority control of the executive and legislative branches, would find itself opposed by the judicial branch for years in areas where its policies conflicted with current judicial interpretations. The judicial branch remains the branch most resistant to swift change, the branch least likely to bend to currently popular political doctrines.
Since the Supreme Court is supreme in its domain, it’s been fought over ever since, its seats the ultimate prize for winning elections. One way we’ve kept the never-ending War of The Seats from turning into a scorched-earth total war is the filibuster. It was used to require 60 votes to bring a Supreme Court nominee to a vote in the Senate. Since neither party tended to hold a 60+ Senate majority for long, this gave both parties leverage to stop judicial nominees from taking up lifetime appointments. Neither party liked the filibuster when it worked against them, but both parties understood the compromises also protected them when they were out of power.
Then a Democratic Senate majority ended the filibuster rule for lower federal court seats so a simple majority could vote on the nomination. After that the next Republican majority ended the filibuster rule for all federal judiciary nominees, including the Supreme Court.
And now it’s total political war, baby!
Seriously. It’s still seldom that either party has a filibuster-proof majority (60+ seats) in the Senate, which means if anything is to get done then some bipartisanship is required to get support from “across the aisle.” Where once both parties could usually block a Supreme Court nominee that they perceived as too extreme (in the wrong direction of course, since obviously it’s impossible to be too extreme in the right direction), even when out of power, now neither party has any legal way to block an unacceptable nominee if the majority party votes as a block to approve the nomination.
The result is the absolute vitriol of the last Supreme Court appointment. The Democrats wouldn’t have resorted to character-assassination in a last-minute attempt to derail the nomination if a filibuster would have served. And now there’s no way for the Democrats to stop the Republican-majority Senate from voting to confirm a replacement for Ginsberg before the 2020 Election.
The Filibuster Rule isn’t coming back for judicial nominations; neither party will reinstate such a limit on their power while they’re the majority. That means where the War of The Seats used to fill our judiciary with a healthy share of judicial moderates (a judicial moderate being a judge neither party is completely happy with), both parties will now be exclusively filling those seats with their own judicial activists. The stakes are now higher than ever.
And the current makeup of the Supreme Court? It’s about to tip towards the judicial textualists, which to Democrats is the same as “right-wing.” (It’s really not, but hey, nuance.) And it will stay there for quite awhile, since the younger justices will now mostly be textualists. The Republicans have played by the rules in their long campaign to move the court, and though you can argue they’ve played ugly, politics has never been pretty. But the outcome of this election may very well be a complete Democratic sweep of the White House and both houses of Congress, right after the court tips to become “constitutionally conservative.”
This brings up the second crisis.
The US Constitution does not dictate how many justices will sit on the Supreme Court. That was established by federal law, which means a Democrat-controlled Congress could blow up the Filibuster completely and change that law by simple majority vote. They could then “pack the court” with politically progressive nominees, as many as they want. Franklin Delano Roosevelt threatened the Supreme Court with this, once, but there’s an obvious reason why no Congress has ever done it; there is no constitutional limit to such a move.
If the Democrats change the law and pack the court with their preferred judges, when Republicans regain the majority again (and they will), there will be nothing to keep them from changing the law again to bring in more of their preferred judges, or to reduce the number of seats as the older, progressive judges, retire or die in their seats. The Supreme Court has never been truly unpolitical, but it’s always been an independent branch. These kinds of shenanigans would fatally compromise the judicial independence that Patrick Henry and the other founders saw as a vital check on executive and legislative power.
So, what happens now?
To be honest, I have no idea, but let me point out some possible roads.
Road 1: Donald Trump wins reelection, with both an Electoral College
and popular-vote victory.
At this point the polls are so unreliable that I wouldn’t be surprised by this outcome. If it happens, the simmering constitutional crises won’t boil over, at least for now. There might be riots, and if there are then gun shops everywhere will do even brisker 2nd Am. business (they have had a very good summer).
Road 2: Donald Trump wins reelection, again with an incontestable Electoral College victory but not a popular-vote victory.
More likely than Road 1, and more dangerous. Riots are almost certain, and a majority of the country will be confirmed in their hatred for the EC. Resistance will kick into a higher gear, with half the country refusing to accept Trump as a legitimately sitting Chief Executive. Ironically, this will be a worse outcome for both parties as the Left moves further left, further alienating the Moderate Middle and further radicalizing the Far Right in response.
Road 3: Donald Trump wins/loses reelection by a contestable voter margin in swing states.
The darkest road. If the voting is this close, the country will go into recount-and-litigation mode. It will be Bush v. Gore writ large, playing out across several states at once and certain to be decided by a Supreme Court that Democrats are convinced the Republicans have stolen. The Supreme Court’s legitimacy will be at an all-time low at the moment it needs to be rock-solid.
Road 4: Donald Trump loses his bid for reelection by an incontestable margin, Biden winning the Electoral College and popular vote.
With the Big States tilting Democrat, it’s mathematically impossible for Biden to win the national popularity contest and lose in the Electoral College. No riots, but almost as perilous an outcome for the Supreme Court, which if the Democrats also take the Senate must now face a vengeful party.
Constitutionally, none of these roads look good. If we come through all this intact, I hope that everybody realizes how close a thing this has become and we begin to take steps. This is probably wildly optimistic of me, but if even a little bipartisan sanity bubbles up from all this, there are some possibilities for compromise. The most important move to make would be to constitutionally regularize the Supreme Court. I suggest an Amendment.
The Supreme Court shall be comprised of 9 justices, the sitting justice with the most seniority being retired every 2 years if no other vacancies have occurred in that period, vacating the seat on the fourth Friday of that year.
As to the Electoral College, there is no constitutional fix short of an additional amendment, and since there’s no way the smaller states will go along with it chances of success are slim to none. But I think all the hating on the EC is really a symptom of unitary nationalism. Unitary nationalists are populists who pretty much want to ditch federalism (on paper, our current system), reducing states to mere administrative appendages of a unitary national government (ironically, something many “conservatives” would approve of if they remained the majority party). Patrick Henry’s nightmare. But if that’s your thing, have at it. Go ahead, I’ll respect you as long as you’re honest about it.
Note: whether you disagree with me or with others who disagree in the comments, please keep it civil. I’ve never had to moderate a comment-thread on one of my posts, and I don’t want to start now. Whatever your political convictions, we’re all citizens engaging in dialogue here.