PACKING THE COURT

    To continue with the theme of my most recent post, the 2020 election has highlighted several of the 'glaring faults' of the Constitution. In particular, the current threat of a Biden/Harris / Harris/Biden administration together with the Democrat Party retaking the Senate of adding extra Justices to the Supreme Court is sufficiently likely that they won't even discuss the possibility. Such an action would render the Court an even less useful body than currently exists.

    The Constitution leaves the numerical makeup of the Supreme Court up to Congress. This in itself is not necessarily bad, but safeguards should have been in place to prevent modifications (packing the Court) from being a political tool. It would seem that at the very least, restricting any changes from taking place should be deferred until every seated member of Congress has been subjected to an election and possible replacement. That, together with allowing for such proposed changes to be rescinded in the interim 4 to 6 years would go a long way to frustrating the kind of mischief currently contemplated by the Democrats.

    The phrase in Article III granting Justices tenure during 'good behavior' seems a little lax in that a lifetime appointment too often in modern times means possibly extending into infirmity. Since most Justices are confirmed during middle age, a cap on maximum duration of a couple of decades would seem to be better than waiting for the grim reaper to trigger replacement. Some nonagenarians maintain their wits in spite of their longevity, but all too often some degree of senility sets in. Subjecting the integrity of the Supreme Court to the risk of such possibilities seems unwise.

    The fact is that any system design, subjected to the rigors of implementation and use, inevitably shows signs of faults and omissions that a second attempt might try to correct. However, referring again to Fred Brooks' 1975 book The Mythical Man Month, the risk of such attempts becoming bloated and worse than the original (The Second System Effect) is somewhat evident in the fact that the Constitutional Amendments too often sully the elegance and simplicity of the original document. The author's opinion is that we're running about 50-50 which is probably not bad for almost 250 years.

THE 2020 ELECTION AND THE CONSTITUTION

With all the hoopla surrounding the coming elections (2020), it is interesting to look at what the Constitution had to say about the subject - both the original document (including Amendments 1 to 10), and the remaining Amendments.

It is fairly obvious that the Founders were against creating a Democracy, and in the original document gave the people only a direct vote on their Representatives in the Congressional House. Even then, they kicked the can down the road on the subject of qualification to vote, essentially leaving it up to the States to decide individually. This is just one of several glaring faults in the Constitution. The requirements for qualifying to vote should have been spelled out explicitly and should have been uniform across the country for the Federal election.

The 17th Amendment (one of two in 1913 that set the stage for the downfall of the U.S.) added the Senators to those directly elected by the populace, effectively creating two Houses of Representatives, but with different rules. Again, instead of rectifying the omission in the original with respect to qualifications, they kicked the can down the road once more.

However, with respect to the choosing of the President, the people were not only deprived of direct election by the Electoral College mechanism, but were even denied direct election of the Electoral College Electors. The original document specifies that "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". Nothing in the remainder of the original document nor in any of the Amendments changes the right of the State Legislatures to appoint the Electors for the Electoral College, although if a State chooses to use a popular election to decide who to appoint, several Amendments have a lot to say as to who may or may not vote in such an election.

Since the Constitution states that "Each State SHALL appoint..." their electors, convene them for their votes, and forward the results to the Senate, one might reasonably assume that such action should be taken in a timely manner. Nothing in the original document or the Amendments suggests that such required actions might be justifiably delayed by an optional popular election at the State level. Thus it is hard to justify the concern that the actual determination of the winner of the Electoral College might not occur at the normal time.

At the same time, there seems to be no real deterrence to any State Legislature appointing their Electors based on any whim they might take, regardless of the results or lack thereof of any popular election, or for that matter, any overreaching dictum from any court. Thus schemes to eliminate the Electoral College and choose the President by the national popular vote are unnecessary - the same result can be achieved within the current Constitution by getting sufficient State Legislatures to agree to appoint their Electors based on that criteria.

This, of course, is just another of the several glaring faults in the Constitution as mentioned above. The Founders apparently hoped that such faults might be corrected by the Amendment procedure provided for, but most Amendments have tended to create more faults rather than correct the original ones (author's opinion). The result seems to lack the 'conceptual integrity' described by Fred Brooks in his classic 'The Mythical Man Month'.

The Electoral College and the election of 2016

Once again the Election of the President of the United States by the Electoral College is the subject of much whining and criticism by the losers. As with the 2000 Election, the Republicans won the Electoral College but with the official popular vote won by the Democrats. I say official, since the possibility of voting fraud in many large urban areas leaves much doubt as to the validity of the popular total. In any case, in spite of massive Democrat wins in the urban areas, the fact that the overwhelming majority of suburban to rural counties in the country went Republican helps explain the Republican win of the Electoral College.

Which is why the Founders created the Electoral College in the first place. At the time, there were not so many large urban areas, but the fear was that the more populous states would, in a popular voting system, deny any real representation in the Federal Government to the smaller states. By creating the Electoral College system, the smaller states would have a somewhat better chance of having a say in the choosing of a President.

Furthermore, the method of choosing Electors specified by Article II, Section 1 of the Constitution leaves it up to the State Governments. To wit: "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...". Thus, as with the original Senate, the President was to answer more to the Sovereign States than to the people as a whole. Although the Senate as the voice of the States has been nullified by the Seventeenth Amendment and made a second House of Representatives, the State governments still have the authority to determine the selection of their Electors for the Electoral College. In practice this has been usurped by Party Politics in most states to a winner-take-all selection of Electors by the Party winning a plurality of the popular vote in the State.

The current implementation of the Electoral College is not in violation of the Constitution, although it is probably not in keeping with the intent of the Founders. I assume that each State has given its blessing in law or otherwise to the current situation. In spite of the fact that the Founders went to considerable ends to give the Sovereign States a meaningful voice in the Federal Government, they have ceded it over the years to the very plebiscite democracy that the Founders abhorred. The Electoral College could easily be the next victim to this tendency by being eliminated altogether.

As usual this author feels obliged, after complaining about the situation, to offer a suggestion for a modest improvement. Since the original Constitutional verbiage cited above is still in effect, the State Legislatures could direct that the Elector authorized by each Congressional District be appointed by the Party having a plurality in that District, with the two Electors granted to each state by virtue of their Senators being appointed by the Party having a plurality in the State, as is currently the case. Apparently this is the system used in two of the Fifty States: Maine and Nebraska. Even better might be to have the State Legislature appoint their two 'at large' Electors to recover a little of the representation of the Sovereign States that the Founders envisioned. Something like this would at least keep the States with large urban areas from denying any representation in the Electoral College to their rural areas. It also would be a minor step toward returning to the intent of the Founders.

Democracy and Demagoguery

As has been said by many others, and covered in several 'Rants', democracy does not work. Whether any government 'works' in the sense of being a stable and contributory adjunct to a prosperous and free society remains to be proven. A more focused question here is whether any representative government can work in the above sense, and the original objective of the Founders of the United States Government had hoped that they had achieved such a goal. We are close to definitively proving them to be wrong.

It is fairly obvious to this author that a fully enfranchised citizenry of a representative government system such as ours is doomed at the outset. Maybe in a pure democracy (everyone voting on every piece of legislation) the majority would mostly avoid shooting themselves in the foot on taxes and similar matters, but then again there is the spectre of the 'tyranny of the majority' in which any identifiable minority faction will be exploited to benefit the majority. In the representative version, there will always be a majority - poorer, dumber, more ignorant or just envious - that are vulnerable to demagoguery. This has been the evolution of the situation in the U.S., particularly as we have embraced universal suffrage over the last century or more.

Over the last century the Democrat Political Party has utilized demagoguery to gain and remain in power a large percentage of the time. Class Warfare, 'something for nothing', free lunches, you name it, have won the game for them over and over. The Republican Pary has adhered to fiscal and constitutional principles more closely, and has suffered defeat for their efforts more often than not. As a Maryland politician said when a reporter questioned her for telling one group one thing and another group the opposite, "I tell them what they want to hear". Demagoguery works!

The problem in the Republican Party in the 2016 Presidential race is that, contrary to the norm, a bonafide demagogue is in the running. And although it seems that somewhat less than a majority of registered Republicans are taken by the demagoguery, a sufficient plurality is gullible enough to possibly make him the Republican candidate in November. At that point we would have a Democrat demagogue against a Republican demagogue, and could very likely prove the thesis of my first paragraph. A century of democratically elected representation has brought us to the brink of implosion, and one more demagogue may very well be the final straw.

It is possible that one of the several principled Republican candidates can pull off both the nomination and the election, but the odds are against it. As the pilot of the PSA jet said seconds before it plowed into a San Diego neighborhood in 1978, "Brace yourself".

Returning to the abstract question of whether any variation of representative government can work, it doesn't seem too hopeful. Perhaps conditioning suffrage on demonstrating with some sort of standardized competency exam a rudimentary knowledge of the functions of government would help, but then the inevitable question is: who defines the exam? It seems all too likely that all forms of government are vulnerable to ultimate demise - monarchies and dictatorships to mortality and representative versions to demagoguery.  Sad.

Partisan Politics

The following piece was originally published on OpEds.com just before the 2004 elections. It was again relevant in 2008, and it still merits repeating now.

Well, boys and girls, here we are again in the middle of another name-calling, lying, blustering, posturing, hand-shaking, baby kissing election cycle. Who will win the big prize, Gladstone Gander or Elmer Fudd? [this dig would have been perfect in 2008. In 2012 we may have Gladstone Gander vs Gladstone Gander].

Seriously, though, there are some considerations that voters should keep in mind as the pathetic spectacle unfolds. In a perfect world, one would vote for the candidate with the highest morals, character and intelligence, hoping that he or she would put the welfare of the constituency above personal gain and power. However, we have far from a perfect world, and voting for the best candidate - even one of impeccable character and wisdom - is not necessarily the best choice.

As has been demonstrated all too often in recent years, the spoils system perks for the majority party of each House of the Federal Legislature drastically changes the game. The eligibility for positions of Leader of the Senate, the Speaker of the House, and all of the various Committee Chairmanships, together with the tendency for most party members to vote as a block, has resulted in the partisan makeup of Congress being much more important than the qualifications of any particular member. This obviously implies, unfortunately, that on voting for your Senator or your Congressman, you should carefully evaluate which party represents those values that you hold dear, and vote accordingly along party lines. Even if there is, to quote a famous Alabaman, "not a dime's worth of difference" between the two parties, you must determine the few pennies difference that does exist and encourage it. To do otherwise will guarantee that the general trend will not be in the direction you desire.

In voting for the President, however, the situation is quite different. Although party pressure is sure to have some influence, if either candidate exhibits a clear advantage in terms of character and a dedication to principles that you support, then you should vote accordingly, even if it means crossing party lines. The nature of the Presidency is such that party affiliation is of concern only if the office is held by a petty partisan politician. [as is, for example, currently the case in 2012].

For local elections, the considerations above may or may not be applicable, but one should give some thought as to whether qualifications or party affiliation is the more important parameter. It is sad that our political system has degenerated to such a state, but it is the fact of the matter.

MarcusEverett