Constitutional Corner – The Right of Self Preservation

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In 1775, Alexander Hamilton wrote:

“The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power.”[1]

We should not seek out our rights in “musty old” Constitutions, we should look for them in the world around us; as an expression of natural law they are “written on our hearts.”[2] But what is their source, who wrote them there?

John Dickinson represented Pennsylvania in the Second Continental Congress in 1776, although he refused to sign the Declaration of Independence. Eleven years later he represented Delaware at the Constitutional Convention (where he did sign the document). He answers the question:

“Kings or parliaments could not give the rights essential to happiness… We claim them from a higher source – from the King of kings, and Lord of all the earth.  They are not annexed to us by parchments and seals. They are created in us by the decrees of Providence, which establish the laws of our nature. They are born with us; exist with us; and cannot be taken from us by any human power without taking our lives. In short they are founded on the immutable maxims of reason and justice.”[3]

Who would deny that each human being has a natural right to preserve their own life? Self-preservation is an almost universal, natural response of living organisms. Upon recognizing a threat to its life, nearly any aware creature will move away from the perceived threat or, if movement is impossible, do whatever is possible to neutralize or minimize the threat to its life. It seems as if this response is hardwired into us. Might this be because it is both a natural response and a natural right?

All the great natural rights philosophers recognized a right of self-preservation. Thomas Hobbes put the right of self-preservation at the top of his catalog of laws of nature that constitute the “true moral philosophy.”[4] He wrote in “Leviathan:”

“The Right Of Nature , which Writers commonly call Jus Naturale , is the Liberty each man hath, to use his own power, as he will himself, for the preservation of his own Nature; that is to say, of his own Life; and consequently, of doing any thing, which in his own Judgement, and Reason, he shall conceive to be the aptest means thereunto.” (Emphasis added)

John Locke took it a step further; not only could we defend ourselves, we could wreak havoc on whomsoever or whatever threatens us:

“Self-preservation [is] a duty to God…I should have a right to destroy that which threatens me with destruction: for, by the fundamental law of nature, man being to be preserved as much as possible, when all cannot be preserved, the safety of the innocent is to be preferred: and one may destroy a man who makes war upon him, or has discovered an enmity to his being, for the same reason that he may kill a wolf or a lion.[5]

Notice that to Locke (and others, as we’ll soon see) we have a duty to preserve ourselves; but the duty is owed not to ourselves but to our Creator. Do we have a similar duty to protect the lives of others?

“Every one, as he is bound to preserve himself… so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another.”

Jean-Jacques Burlamaqui, the great French philosopher, wrote:[6]

“God is therefore willing, that everyone should labor for his own preservation and perfection, in order to acquire all the happiness, of which he is capable according to his nature and state…”

“For, man being directly and primarily charged with the care of his own preservation and happiness, it follows therefore that, in a case of entire inequality, the care of ourselves ought to prevail over that of others…”

“If a particular manner of acting appears to me evidently fitter than any other for my preservation and perfection, fitter to procure my bodily health and the welfare of my soul; this motive alone obliges me to act in conformity to it.” (Emphasis added)

The Founders took a similar view:

“Among the natural rights of the Colonists are these: First, a right to life; Secondly, to liberty; Thirdly, to property; together with the right to support and defend them in the best manner they can. These are evident branches of, rather than deductions from, the duty of self-preservation, commonly called the first law of nature.[7]

“In the human body the head only sustains and governs all the members, directing them, with admirable harmony, to the same object, which is self-preservation and happiness;[8]

Self-preservation is the first principle of our nature. When our lives and properties are at stake, it would be foolish and unnatural to refrain from such measures as might preserve them because they would be detrimental to others.[9]

The right of self defense is the first law of nature.”[10] (Emphasis added in all)

Since natural law and revealed law (the Bible) have the same source, we should find them in harmony. But the Bible takes a more nuanced view, especially when we encounter the New Testament.  But first the Old:

“Thou shalt not murder” makes it clear that we can have an expectation that no one should threaten our life. But does this give us the right to actively defend our life?

In Psalm 82:4, we find an obligation to protect all who are in danger:

“Rescue the weak and needy; Deliver them out of the hand of the wicked.”

In Ezekiel 33 we encounter an obligation to warn others of approaching danger, and if we do not, any harm that comes to them will be our responsibility:

“…’But if the watchman sees the sword coming and does not blow the trumpet, and the people are not warned, and a sword comes and takes a person from them, he is taken away in his iniquity; but his blood I will require from the watchman’s hand.”

Numerous verses[11] demonstrate that murdering another person results in the forfeiture of the life of the murderer. Does it not follow that to prevent someone from forfeiting their life we should do what we can to prevent or neutralize their attack on our person?

For what are we preserving by doing so? Yes, our life; but to whom do we own our life? Are we not God’s “property?” Is it not God’s property we are ultimately protecting?

Or know ye not that your body is a temple of the Holy Spirit which is in you, which ye have from God? and ye are not your own; for ye were bought with a price: glorify God therefore in your body.[12]

Returning to “Thou shalt not murder;” can we justify taking the life of an attacker in defending our self? Jesus’ command to “turn the other cheek” certainly presents us with a challenge. Must we “turn the other cheek” when our life, and something more than a slap on the face, is in the bargain? In John 15:13, we are shown it is an act of love to lay down our own life for a friend. Sacrificing one’s self when others are imperiled, subordinating our right of self-preservation to the preservation of someone else, is the ultimate act of love. We honor those who choose this path; but it remains a choice.

Yet, Jesus confirms there is still a time and place for weapons of defense: “he who has no sword, let him sell his garment and buy one.”[13] When Peter imprudently cuts off the ear of the high priest’s servant while trying to protect Jesus, Peter is told to put his sword back in its sheath, not discard it.[14]

So if the Right of Self-Preservation was universally recognized by moral philosophers and the Founders, subordinating that right counted as the ultimate sacrifice, why was this right not enumerated in the Constitution?

Perhaps one reason has to do with the limits of language.  Madison noted that:

“[T]here is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power.”[15]

Translation: if you do not describe the right you are trying to secure with “the requisite latitude,” that is, precisely enough, there is danger that it will not be secured correctly or adequately. And if the public is allowed to define the right, they will likely do so in an even narrower sense than the government might.

Considering Madison’s example: how would you describe the Right of Conscience? To what beliefs would it extend – anything and everything, or only religiously-focused beliefs? If you believe it is morally wrong to kill animals should you be able to enunciate and act upon that belief? Of course, but not to the point that your actions infringe on the right of others to eat meat if they choose (PETA take note).

How would you describe the Right of Self-Preservation in a short sentence or paragraph so that it would be appropriately protected by your government? The “Stand Your Ground Laws” found in several states are a step in that direction, but do they cover all circumstances where self-preservation comes into play? Certainly not. Does a terminally ill patient have a right to take experimental drugs or therapies not yet approved by the FDA if doing so offers a chance of preserving their life? So called “Right to Take” legislation is attempting to secure precisely that right.[16] Would you have included that in your description of the Right of Self-Preservation?  I would probably have overlooked it.

While Madison chose not to enumerate a Right to Self-Preservation, most likely because the right went without saying, he did provide for it. In arguing for the Bill of Rights on the floor of Congress, Madison said:

“It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to (what would later become the Ninth Amendment).”

“The Ninth Amendment is the repository for natural rights,” writes Leonard W. Levy in Origins of the Bill of Rights.[17] But, Levy cautions: “no evidence exists to prove that the Framers intended the Ninth Amendment to protect any particular natural rights…we can only guess what the Framers had in mind.

The problem with the Ninth Amendment is that the rights it is to protect must be “teased out of it.” And who should do the “teasing:” five lawyers in black robes, or the rightful owners of the Constitution, i.e., the people? Clearly the people are the ultimate authority over what the Constitution says and means; in my view they are the only rightful agency with the authority to identify new rights which are to be protected by the Ninth Amendment. “To say that the Framers did not intend the Court to act as a constitutional convention or to shape public policies by interpreting the Constitution is…to assert historical truth.”[18]

As Levy points out, until 1965, the Ninth Amendment was considered an indecipherable mystery by the court, akin to an “ink blot.” In 1965, the five lawyers “teased out” a right to privacy over the use of contraceptives;[19] eight years later they extended this newly discovered privacy right to the killing of babies in the womb.  In the 2015 case of Obergefell v. Hodges, while the Court claimed to discover a right to homosexual “marriage” in the Fourteenth Amendment’s Due Process Clause, they could just as easily have discovered this “right” in the Ninth. “Within fifteen years [after Griswold] the Ninth Amendment…was invoked in more than twelve hundred state and federal cases in the most astonishing variety of matters.”[20]

Let us presume then that a Right of Self-Preservation is a natural right deserving of protection by the government; by what means is this right to be acted upon? Is it logical that a right to preserve one’s life when confronted by some armed with a weapon should involve the use of a weapon at least equal in lethality? I think so.

Locke reminds us that: “The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions.”[21] (Emphasis added)

No one ought to wish to harm us, but some do. Some people have no compulsion against killing their fellow man and even inflicting great pain in the act. Paraphrasing Jesus: like the poor, given the fallen nature of man, we will always have such people with us.

As I noted earlier, Locke states: “I should have a right to destroy that which threatens me with destruction: for, by the fundamental law of nature, man being to be preserved as much as possible, when all cannot be preserved, the safety of the innocent is to be preferred: and one may destroy a man who makes war upon him, or has discovered an enmity to his being, for the same reason that he may kill a wolf or a lion.

Defending yourself against someone who threatens to take your life with a gun logically requires a gun of your own. And the Founders would agree:

“The right of the citizens to bear arms in the defense of themselves shall not be questioned.” James Wilson

”Arms in the hands of individual citizens may be used at individual discretion for the defence of the country, the over-throw of tyranny, or in private self-defense.” John Adams

“…[T]he people have a right to bear arms for the defense of themselves and their own State, or the United States… and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals.” Pennsylvania Ratifying Convention

In Thomas Jefferson’s Commonplace Book we find him quoting Cesare Beccaria’s book, On Crimes and Punishment.[22] Jefferson found this quote of Beccaria worth remembering: “Laws that forbid the carrying of arms … disarm only those who are neither inclined nor determined to commit crimes… Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.”

In 1859, a court, albeit a state court, finally proclaimed forthrightly what everyone, certainly everyone of the time, knew to be true: “The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the “high powers” delegated directly to the citizen, and is excepted out of the general powers of government.’ A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power.”[23]

Turning to the Second Amendment, much has been made of its prefatory clause which can be read to imply that keeping and bearing arms is only permitted for militia duty. This is clearly an important reason for having arms, but I hope you see by now that it is not the only reason.

As Robert Natelson explains in The Founders and the 2nd Amendment:[24]

“History makes it clear that the Second Amendment is designed to serve four principal purposes.

First, it guarantees the states militia power of their own to balance the military power of the federal government;

Second, it promotes the God-given right of personal self defense;

Third, it enables the citizenry to repel foreign invasion; and

Fourth, it enables the citizenry to overthrow domestic tyrants and intimidate or discipline those who otherwise would be tyrants.”

Each of these purposes deserves more elaboration, but space this day does not permit it.

Let us be clear: the second Amendment grants no rights, it only protects a preexisting right from government infringement (and the infringement that has been allowed thus far is also a story for another time). The Supreme Court’s decision in Heller v. District of Columbia,[25] although decried by Progressives, demonstrated conclusively that a right of individual self-defense/preservation is appropriately exercised by keeping and bearing arms.

There are those who will insist, however, that an individual gives up his natural right of self-preservation when entering into a social contract; i.e., the government assumes responsibility for our protection. This brings to mind the meme: “when seconds count, the police are only minutes away.” It should also come as no surprise that police have no responsibility to protect individual citizens from harm.[26] So then there’s that.

To conclude: the Right of Self-Preservation is a natural right with a long pedigree. The ability to use appropriate weapons, including guns, when exercising that right should be as protected as the right itself. The right to keep and bear arms does not hinge exclusively or even predominately on duty in a militia.

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[1] Alexander Hamilton, The Farmer Refuted, 1775.

[2] Romans 2:15.

[3] John Dickinson, An Address to the Committee of Correspondence in Barbados, 1766.

[4] Leviathan, xv, ¶40.

[5] Second Treatise on Government, Section 16.

[6] Jean-Jacques Burlamaqui, The Principles of Natural And Politic Law, 1748.

[7] Samuel Adams, The Rights of the Colonists, The Report of the Committee of Correspondence to the Boston Town Meeting. November 20, 1772.

[8] John Dickinson, A Speech Against Independence, 1776.

[9] Alexander Hamilton, A Full Vindication, December15, 1774.

[10] Henry St. George Tucker (in Blackstone’s Commentaries).

[11] Exodus 21:14, Deuteronomy 19:11, Numbers 35:16.

[12] 1Corinthians 6:19-20, American Standard Version.

[13] Luke 22:36.

[14] John 18:11.

[15] Annals of Congress, 8 June 1789.

[16] https://www.usnews.com/news/articles/2014/11/18/right-to-try-laws-allowing-patients-to-try-experimental-drugs-bypass-fda.

[17] Leonard Levy, Origins of the Bill of Rights, Yale University Press, 1999, p. 254.

[18] Ibid, p. 243.

[19] Griswold v. Connecticut, 381 U.S. 479 (1965),

[20] Levy, p. 242.

[21] John Locke, Second Treatise on Government, Chapter 1, Section 6.

[22] http://www.constitution.org/cb/crim_pun.htm.

[23] Cockrum v. State, 24 Tex. 394, at 401-402.

[24] http://tenthamendmentcenter.com/2013/04/01/the-founders-and-the-2nd-amendment/.

[25] District of Columbia v. Heller, 554 U.S. 570 (2008).

[26] Castle Rock v. Gonzales, 545 U.S. 748 (2005).

Constitutional Corner – The Contingent Election

What if neither Hillary Clinton nor Donald Trump receives a majority of electoral votes on November 8th?  Can’t happen?  Oh yes it can!  Our country has had two elections where none of the candidates for an office received a majority of the electoral votes (and one where there was a tie).[1]  Let’s look at a what could happen.

First, we should dispense with the notion that the popular vote for President will count for anything.  It does not.  A popular vote is not even contemplated in the Constitution.  To be precise, having the people vote for President is not even required under the Constitution.  “Electors” elect the President and Vice-President, and the selection of those electors is left entirely up to the states.  For many years the electors were appointed by the state legislatures.

Article II, Section 1, Clause 2 of the Constitution states:

“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.”

There are currently 538 electors, corresponding to 435 Representatives, 100 Senators and (by means of the 23rd Amendment) 3 electors for the District of Columbia.  A candidate receiving a majority of electoral votes (270) becomes President (the same for Vice-President).  When no candidate receives the necessary 270 electoral votes, the House of Representatives gets to choose the President and the Senate chooses the Vice-President.

In the House, a vote is taken of the three candidates receiving the most votes overall, with each state delegation allowed one vote.  The winning candidate must receive a majority of the votes, meaning 26.  If no candidate receives 26 votes on the first ballot, the voting continues until a candidate does receive that number of votes.

In 1800[2], due to mis-communication in the Democratic-Republican party, Thomas Jefferson and Aaron Burr received an the same number of electoral votes, sending the election to the House.  In the contingent election neither man initially received the necessary nine votes needed to be declared the President.  Thirty-five votes and seven days later, Jefferson still lacked the one vote needed to put him in the White House.  The efforts of Representative Alexander Hamilton broke the logjam and Jefferson was able to claim the prize.  There’s a lot more to the story and it makes a good read.

A recent poll by RealClearPolitics[3] found more than one third-party candidate “surging” in the polls (their definition of “surging” differs from mine).  If this trend continues for the next three months, however, the chances of an outright win of 270 electoral votes by either Hillary or Donald diminishes significantly.

So let’s say, for the sake of the discussion, that Donald Trump receives 265 electoral votes, Hillary 260, Libertarian candidate Gary Johnson receives 15 and Green Party candidate Jill Stein the remaining 8 votes.  The contingent election in the House would occur on 6 January 2017, immediately after the joint session of Congress officially counts the cast electoral votes (see 12th and 20th Amendments).  Senators would immediately head for their chamber to conduct an election of the Vice-President (the Vice-Presidential candidates would presumably receive the same number of votes as their running mates).

In the Senate, Senators would vote individually, not as state delegations, and would select from only the top two Vice-President candidates.  Fifty-one votes would be required and the sitting Vice-president would preside, but not vote.

What would be the outcome?

If the contingent elections were held with the present Congress, Donald Trump and Mike Pence would likely win their respective elections.  Republicans hold a slim majority of 53/47 in the Senate and a wider majority of 273/162 in the House;[4] as long as no Member “defected,” the outcome would likely be Republican.  Except that these contingent elections will be conducted by a new Congress, which will have taken their seats on January 3rd.  Every single Representative and one third of the Senators are up for re-election in November and the new mix is anyone’s guess at this point.  I should also point out that Congressmen would not be bound to vote by party affiliation, they could vote anyway they feel led.  Of course, they would be expected to explain their vote to their constituency.

One final note: in the House, voting is by state delegation.  Where a delegation is split between the two major parties (Maine has one Republican and one Democrat, New Hampshire the same, and New Jersey six of each) the delegation would presumably cast a null vote, which would count for no candidate.

Over the next three months it would behoove everyone one to keep an eye on the polling for third-party candidates.  This is a critical election for America; it could even be an exciting one.

There is a lot more to discuss.  If this short essay piqued your interest, on September 12th I’ll be speaking on the “Genius of the Electoral College” as part of the Foundation for American Christian Education’s Lessons in Liberty series.  From 7-9pm, I’ll discuss the history of the College, why “contingent elections,” as we call them, now were expected to be the norm, and the project gaining traction across the country to replace the Electoral College with a National Popular Vote (without amending the Constitution!).  You can attend this event in person in Chesapeake, VA or online via Livestream.com.  Cost either way is a whopping $10 per person.  Hope to see you there.

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[1] In 1824, Andrew Jackson received a plurality of the electoral votes but not a majority.  The House elected second-place candidate John Quincy Adams instead.  In 1837, “faithless” electors prevented Vice-Presidential candidate Richard Johnson from gaining a majority of electoral votes.  The Senate easily elected him.

[2] https://en.wikipedia.org/wiki/United_States_presidential_election,_1800#Results_2

[3] http://thehill.com/blogs/ballot-box/presidential-races/289859-third-party-support-surging.

[4] I’m counting Independents with the Democrats.

Constitutional Corner – The Imperial Presidency

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“Nothing is more essential to the establishment of manners in a State than that all persons employed in places of power and trust be men of unexceptionable characters.  The public cannot be too curious concerning the character of public men.”  Samuel Adams, in a letter to James Warren on November 4, 1775.

As we prepare to enter what could well prove to be the most ruthless, mean-spirited, and most uncivil presidential election season in modern times, it would be well worth our time to take a step back, a few deep breaths, and reflect on both the office of President as it is defined by the Constitution as well as the character of the current candidates vying for that high office.  America has seen rancorous elections in the past, beginning in 1800, but this one could take the cake.

Part of what makes recent presidential elections so emotional is that, over the years, the Office of President has become something it was never intended to be.  Let’s look back:

George Washington had it easy; no previous precedents to bind him, only the broadly formed words of the new Constitution as his guide, the ink barely dry.

The Philadelphia delegates had shuddered at the thought of a kingly Chief Executive, but shuddered equally at the examples created by some of the new state Constitutions. Their state Governors were weak, impotent, mere figureheads.  As they designed the U.S. Presidency the delegates knew some of the powers of a king would be absolutely necessary, but which ones?  “Their challenge was to invent an executive office that would be strong enough to provide effective governance without threatening the newly developed and most cherished republican form of government.”[1]

Certainly the power to negotiate foreign treaties should be vested in the President; the Confederation Congress had had this power, and exercised it reasonably well, fielding a stable of diplomats of the first order and negotiating the “tie-breaking” treaty with France; but still, this is a power best left to a single person than a committee.  Executing the laws?  That was a given.  Congress didn’t want to both write and enforce the law (but the Executive, as it turns out, would be more than willing to do both).  But what of the war-making power?[2]  That was a landmine waiting to go off, and the delegates knew it – except that they didn’t have landmines back then.  Best not to have a Chief Executive with the power to drag us off into costly wars (in both lives and fortune) every few years such as the kings of Europe were wont to do.  The solution: the delegates would give most of the war-associated powers to the Congress and only allow the President to lead the forces into battle (or lead from behind, as has become fashionable of late).  And so Article 2 of the Constitution came to be.

But still, Washington had to make it up as he went; everything he did would set the first precedent; that much was apparent.  Best tread cautiously then, which he did – seeking advice from both sides of each argument before setting his tack.

Today’s Presidents operate on the precedents that Washington and every President since have set, some Presidents (and their precedents) have been respectful of the Framers’ principle of a limited government of enumerated powers, some Presidents have appeared oblivious (at best) or arrogantly spiteful (at worst) of this principle.

Many Presidents, perhaps most of them, have exceeded the limits of their Constitutional powers, beginning with Washington whose declaration of neutrality, ostensibly binding individual Americans from lending support to either Britain or France in their incessant bickering, was an exercise in arbitrary, unconstitutional power.  Lincoln acknowledged that it was necessary he violate the Constitution in order to save the nation.  Writing of Theodore Roosevelt’s approach to the president’s power, Erin Ruth Leonard thinks: “The decisive and benevolent–if possibly unconstitutional–actions that Theodore Roosevelt took benefitted America by making it a more equal and progressive place.”[3]  So as long as unconstitutional use of presidential power results in something “more equal and progressive,” it’s apparently A-OK.  Roosevelt himself said: “My belief was that it was not only [the President’s] right but his duty to do anything that the needs of the nation demanded unless such action was forbidden by the Constitution or by the laws.”  Sorry Framers, you tried, but you failed.  Woodrow Wilson viewed the Constitution as an artifact of a stilted past: “The government … is accountable to Darwin, not to Newton. It is modified by its environment, necessitated by its tasks, shaped to its functions by the sheer pressure of life.“  Voila!  The “Living Constitution” emerges from the primordial ooze.

Presidential Executive Orders are a favored way of abusing presidential power.  Here’s a short summary of many of them.[4]  David Harsanyi, writing at Federalist.com,[5] believes President Obama’s “legacy” will be one of executive overreach.

And with (nearly) each new precedent, the power of the President grew and grew, only occasionally slapped down by a jealous Congress or a Supreme Court.  Now, candidates for the highest office in the land, the “leader of the free world,” Commander in Chief of the mightiest military the world has ever known, put principle aside, decorum on hold, and say and do whatever their handlers think necessary to attain the office.  It is a sad spectacle, really.  Debate after mind-numbing debate, pushing the same policy promises, most of which they know they will be unable to deliver without the gracious help of Congress, the candidates march on, and eventually dwindle as reality sets in.

Just over 1,000 words describe the most powerful office on earth.  Reading Article 2 (and the few powers found outside it) one gets a sense of the Framers’ caution.  The President negotiates treaties but must convince 2/3 of the Senators the treaty is in the country’s best interest.  He can negate the will of 353 legislators,[6] but the Congress can override his veto.  The President will be compensated for his services – but only what Congress thinks proper.  He can nominate judges and other high officials, but the Senate must confirm them; he can “fill up all Vacancies that may happen during the Recess of the Senate” but they expire at the end of the next session.  Finally, he can be removed from office and sent packing by the Congress.  This is no King.

But we have turned the office into something much different today.  Now we look for a candidate who promises to fix everything that’s broken, solve all our problems, stop the rising of the oceans.

The people of Israel asked Samuel to appoint a King to rule over them “like the other nations.”  Samuel warned them of the consequences if he acceded to their request: “This is what the king who will reign over you will claim as his rights: He will take your sons and make them serve with his chariots and horses, and they will run in front of his chariots.  Some he will assign to be commanders of thousands and commanders of fifties, and others to plow his ground and reap his harvest, and still others to make weapons of war and equipment for his chariots.  He will take your daughters to be perfumers and cooks and bakers.  He will take the best of your fields and vineyards and olive groves and give them to his attendants.  He will take a tenth of your grain and of your vintage and give it to his officials and attendants.  Your male and female servants and the best of your cattle and donkeys he will take for his own use.  He will take a tenth of your flocks, and you yourselves will become his slaves.  When that day comes, you will cry out for relief from the king you have chosen, but the Lord will not answer you in that day. But the people refused to listen to Samuel. “No!” they said. “We want a king over us.  Then we will be like all the other nations, with a king to lead us and to go out before us and fight our battles.” [7]

Interestingly, the more power “we the people” allow, and Congress allows, and the Courts allow the President to acquire, the more America begins to take on the trappings of Samuel’s warning.

Despite clear warnings, today we look for a King.  The successful nominee will be the person who promises to solve the most problems for the greatest number of Americans, the person who promises the least disruption to the gravy train that is today our federal government.

As I asked on WFYL radio last week: “Where are the Washingtons?  Where are the Jeffersons?  I’d even take a hot-headed John Adams over any of the present stock.”  None of our first three presidents was elected because of promises they made or policies they endorsed; they were elected to the highest office in the land because of who they were, the character they had exhibited, and the service to their country they had already demonstrated.  That should be the prime criteria today, but it isn’t.

What qualities should we want, insist on really, in a President of the United States?  Mark Alexander has a nice essay on that question here.[8]  I’d start with an example from Exodus 18, which I’ll paraphrase:

“Select able men who fear God, men of truth, those who hate dishonest gain.”

I want someone who acknowledges that there is a transcendent God who “governs in the affairs of men,”[9] someone who promises to call upon God for both guidance and strength, and acknowledges that the laws of this God lay supreme over all man-made law.  I want a President with an obvious sense, perhaps even an inflated sense of accountability and great discipline in his personal conduct, a President who has demonstrated the ability to self-govern and who will both model and encourage this practice in all Americans.  Lastly, I want a President who willingly acknowledges the Constitutional limits of the office and agrees to step down before violating these limits.

Eleanor Roosevelt said: “….our system is founded on self-government, which is untenable if the individuals who make up the system are unable to govern themselves.”  This applies equally well to the President.

We discussed this issue last week on WFYL Radio.  If you want to learn the views of my two co-commentators, please download or listen to the podcast, available here.[10]

[1] Thomas E. Cronin, “Inventing the American Presidency,” University Press of Kansas, 1989. p. ix.

[2] For a thorough analysis of the evolution of Presidential war-making power, at least through President Nixon’s first term, I recommend “The imperial Presidency” by Arthur m. Schlesinger, Jr., Houghton Mifflin Company, 1973.

[3] http://www.let.rug.nl/usa/essays/1901-/theodore-roosevelts-broad-powers-erin-ruth-leonard.php

[4]http://www.heritage.org/research/reports/2001/02/the-use-and-abuse-of-executive-orders-and-other-presidential-directives

[5] http://thefederalist.com/2016/01/05/obamas-legacy-will-be-executive-abuse/

[6] If only 287 Representatives and 66 Senators have voted for a bill, the President’s veto is probably secure.

[7] 1 Samuel 8: 11-20 (NIV)

[8] http://patriotpost.us/alexander/41349

[9] As Benjamin Franklin did at the Constitutional Convention.

[10] http://www.1180wfyl.com/podcasts.html

 

Constitutional Corner – Restoring the Electoral College

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The 2000 presidential election put the Electoral College squarely in the gunsights of the Left; how could a candidate (Al Gore) get 500,000 more popular votes and not attain the Executive Office? This just won’t do, time to get rid of the Electoral College once and for all!

In 2004, the New York Times editorial staff called the Electoral College “a ridiculous setup, which thwarts the will of the majority.”[1]

Just a year ago, University of Maryland sophomore Tyler Lewis attempted to make the case once again.[2]

Yet the Electoral College survives, barely, in form if not in function. Actually, it’s on life-support.

Understanding the difficulty of amending the Constitution to replace the Framers’ preferred election process, the National Popular Vote project is attempting to use state-level legislation to change the way Electors cast their ballots. Thanks to a growing love affair with “democracy” (however ill-understood), they are making great progress in the state legislatures. Their National Popular Vote bills will ensure whichever candidate secures the greatest number of votes nationally will also obtain all of that state’s electoral votes. Bingo; problem solved, without Constitutional amendment; all perfectly legal. The Electoral College’s days are truly numbered, despite being the preferred method of electing the President in a 2002 poll of political scientists.[3]

More than 700 proposals for changing the Electoral College system have been introduced over the years in Congress — some even received committee hearings — but none received the requisite 2/3 vote in both Houses in order to be sent to the states for ratification. In 1956 and again in 1969 proposed amendments passed the House but died in the Senate. The last time any changes were made constitutionally to the Electoral College was in 1804 (with the 12th Amendment).[4]

Although various schemes to select the Chief Executive were debated throughout the summer of 1787, what we now know as the Electoral College was not added to the draft Constitution until 4 September, 1787, two weeks before adjournment. The final plan was mostly the brainchild of the Committee on Detail. The initial proposal for the Executive (in the Virginia Plan) had the President appointed by the Legislature. But this was rejected because it might render the President too dependent on Congress. How about direct election by the people? During debate on this question, several delegates expressed concern over the ability of the general electorate (i.e., the people) to identify “worthy” presidential candidates. One need only canvass this season’s Presidential hopefuls, and the excitement some generate, to see that the American people have lost complete sight of what qualities a Chief Executive should have. Seriously, are there no Washingtons, Adams, Jeffersons, or Madisons to call upon today?

Add to this paucity of statesmanship and decorum in the candidates, the fact that only a third of today’s voters are able to name the three branches of government; America is in deep trouble. But I digress.

Here’s how the Electoral College was intended to work (and worked well for all of two elections): Electors equal to a state’s combined total of Representatives and Senators were selected through a process devised by each state. They could be elected by the citizens of the state or appointed by the state legislature or some combination of process. Qualifications of the Electors were to be the same as Electors of the “most populous house” of the state legislature (i.e., anyone allowed to vote for their state assemblyman could qualify as an Elector), but to render them totally independent, they also could not be a U.S. Senator or Representative, or hold any “Office of Trust or Profit under the United States.”

On a given day the Electors would meet, in their states (“safe from interference from Congress and national cabals”), and each Elector would nominate two individuals to the office of president, one of whom had to reside in another state than the Elector himself. Each nomination represented a vote for that person. The nominations were recorded and sent to the U.S. Senate. The President of the Senate (i.e., the Vice-President of the U.S.) opened the ballots from each state, tallied the nominations/votes for each nominee, and declared the person with the most votes, provided a majority of the Electors had voted for him, to be the President. Whoever received the second-most votes became the Vice-President. The Electors never met in a “college,”[5] instead they met in 13 state “colleges.” The design of the Electoral College system made it clear that “the President was to be, like the Senate, a creature of the states and not of Congress”[6] (or, I might add, the people).

As Hamilton explains in Federalist 68, the process was meant to ensure “that every practical obstacle should be opposed to cabal, intrigue and corruption.”[7]

As I said, this worked well for two elections. Once Washington decided against a third term, flaws in the design soon became evident. In the election of 1796, John Adams and Thomas Jefferson received the most and second-most votes respectively (Adams received one vote more than needed for a majority) and thus became the President and Vice-President. Problem: by that time political parties had arisen and Adams and Jefferson were affiliated with different parties, leading Adams to essentially ignore his Vice-President (as he himself had been largely ignored by Washington, for different reasons), which lead Jefferson to conclude he was wasting his time in Washington and that tending to his vines at Monticello would be more productive.

The election of 1800 revealed yet another flaw, this time it could not be ignored: since Electors nominated/voted for two people, if all the Electors of one political party voted for the same two people, those two people would end up with the same number of votes. A tie in the most number of votes threw the election into the House of Representatives. To settle the tie, the House delegations would choose the President from one of the top five nominees, voting by state. A majority of the state votes would settle the matter, unless no candidate obtained a majority of the state votes, which was precisely what happened.

A flaw in the execution of the plan of the Democrat-Republican Electors to seat Jefferson as President and running mate Aaron Burr as Vice-President resulted in a tie vote for both, a tie vote the lame-duck Federalists in the House of Representatives saw no reason to resolve. Thirty-five ballots later, the recalcitrant Federalists would still not budge and neither candidate had received the nine state votes needed. Alexander Hamilton was finally able to work a deal that broke the tie in Jefferson’s favor, much to Aaron Burr’s chagrin. The animosity this produced was at least partly responsible for Burr and Hamilton’s later “interview” on the Heights of Weehawken, which resulted in Hamilton’s untimely death.

The 12th Amendment reduced the likelihood of a tie by requiring Electors to cast separate ballots for President and Vice-President. Despite the high theater created by the 1800 election, the idea behind the 12th Amendment was still very contentious and did not gain sufficient political support until the imminent election of 1804 provided sufficient to push it through Congress and out to the states for ratification.

Today, however, the operation of the Electoral College little resembles the original. Instead of Electors nominating candidates from a potential pool of 213 million persons,[8] as they would following the original design, political parties nominate candidates through primary elections and a convention. Even though the name of the party’s candidate appears on the ballot, citizens are in fact voting for Electors who have previously committed themselves to a particular candidate. The original action of Electors as “screeners and selectors” of Presidential candidates has been obliterated.

About the only thing retained from the original design is that a successful candidate must receive a majority (270) of the total electoral votes available (538).[9] Due to the fact that a candidate need generally only win 50.1% of the popular vote in a state to receive that state’s electoral votes, it is possible for a candidate to receive the most popular votes nationally[10] and still win insufficient electoral votes to gain the office. Indeed this is what happened in 2000.

In the 2000 election, Bush/Cheney received 50,456,002 popular votes (47.9% of the total), but carried a majority of votes in 30 states and thus received their combined 271 electoral votes (notice, only one more electoral vote than needed). The Gore/Liebermann ticket received 50,999,897 popular votes (48.4% of the total)[11] but only carried 20 states (+ District of Columbia) and were awarded only 266 electoral votes. Gore’s large vote margins in New York (1,704,323), California (1,293,774) and Illinois (569,605) contributed greatly to his popular vote victory, but were meaningless in the electoral vote count.

The lesson of this election was that you only needed to win 50.1% of the popular vote in any state, any more than that has no effect on the electoral vote count (wasted?).

In Florida, a 537 vote margin for Bush gave him the Presidency! Ralph Nadar took 97,488 Floridians’ votes, presumably away from Gore; Pat Bucahnan took 17,484 votes (presumably) from Bush, and Libertarian Harry Browne garnered 16,415 votes, which either major party would have loved to have. Even the 1,371 votes of Constitution Party candidate Howard Phillips or the 2,281 votes cast for Natural Law Party candidate John Hagelin would have been enough to change the outcome in the state and thus nationally; so would have the 3,028 votes cast for write-ins. Who says one vote (or even 537 votes) isn’t important? After the election, the Supreme Court stopped the dubiously legal recount of Florida votes and the rest, as they say, is history. The Left is yet to recover, leading to the “National Popular Vote” movement, discussed earlier.

So why not chuck the Electoral College and elect the President solely through a popular vote?

First and foremost, the Framers saw the office of President far differently than we do today. Today the President is “the leader of the free world,” the “Commander in Chief of the most powerful military in the world.”[12] In addition, Presidents in the modern era have worked hard to create the “Imperial Presidency” (the subject of next week’s essay, so I won’t dwell on it here).

In 1789 however, one did not “run” for the Presidency, one was pushed into it, sometimes reluctantly. Anyone actively seeking the office would have been viewed with suspicion. George Washington has often been called “The Reluctant President,”[13] as has John Quincy Adams.[14] Some are calling Barack Obama such,[15] but they focus very narrowly on his foreign and wartime policy. Obama showed no reluctance in setting about to “fundamentally transform America.”

The Framers saw a very limited role for the President: faithfully executing the laws, negotiating treaties, and protecting the nation from attack. When you read Article 2, that’s about all you encounter, save some administrative responsibilities. Thus, candidates for the office were expected to be good administrators as well as proven statesmen,[16] but they were not expected to be flamboyant or self-aggrandizing. People with such qualities would have been ignored by the Electors.

Make no mistake, the movement to replace the Electoral College with a National Popular Vote is not just a move to replace an archaic or overly complicated methodology, it is not an attempt to replace a system that is today not operating in harmony with its original intent, this movement is part and parcel of a scheme to replace our constitutional republic with a pure democracy.

But could we still go back to the original Electoral College process (or something close to it)?

Imagine this: On Election Day, Electors are selected, by name, in a popular vote of the people. The Electors were nominated by their state legislatures for their life experience, maturity, and sound judgement. The ballot contains only a brief resume of each person to guide the people’s votes, but no party affiliation is shown.

A day after the election, the results of the voting are announced (at this point the Electors would be advised to disconnect their home phones, for their sanity). On a prescribed day in December, Virginia’s 13 Electors meet in Richmond (as other state’s Electors meet in their state capitols) and each Elector writes down the names of two men or women they think are qualified to hold the high offices of President and Vice-President of the United States, respectively — “statesmen who had proven themselves through service and dedication to their communities, states, and country.”[17] The guidance from the Bible is similar: “But select capable men from all the people–men who fear God, trustworthy men who hate dishonest gain…”

Political parties would have been allowed to nominate preferred candidates if they wished, but the Electors would have no pressure or commitment to choose any party’s nominee. The names the Elector’s nominees will eventually become public, so each Elector would be prepared to explain/defend their choices. Electors not taking their responsibility seriously would expect to face the wrath of the community upon their return from nominating.

The Electors’ nominations are forwarded to the U.S. Senate, which opens them on a designated day a few days later. The nominations for each office are tallied and, in the unlikely event that a single nominee obtains votes from a majority of the Electors, they automatically become the President or Vice-President, providing they are found to meet the qualifications found in Article 2 of the Constitution. A more likely outcome is that no person achieves a majority of the Electors’ votes for their office. In this case, the House of Representatives immediately convenes and, from the three individuals[18] receiving the highest number of votes for President, chooses the President, voting by states, one vote per state.  The Senate does likewise for the Vice-President.

We could re-instill this process in short order, without Constitutional amendment. In many states, legislation governing how Electors are required to vote would have to be modified.

Notice that the people are still involved, in two significant ways: by voting for the Electors, as well as selecting their Representatives and Senators (unless we also repeal the 17th Amendment) who will likely cast the deciding votes for President and Vice-President respectively. The states are involved by selecting the potential Electors and, through their Congressional delegations, in actually selecting the President and Vice-President. The Electors themselves are under great public scrutiny for nominating individuals of integrity and experience.

The influence of political parties over at least the two highest offices in the land would be broken; such influence would remain in races for the Senate and House; presidential debates would be unnecessary, presidential elections would cost a few thousand dollars (the expense of bringing the Electors to the capitol) instead of millions; robocalls (for President at least) would cease; Presidential candidate “promises” would be a thing of the past – the only promise would be made during the swearing in: to “preserve, protect and defend the Constitution of the United States.” Political parties could continue to hold primaries and/or conventions if they wished, but the importance of these would be greatly diminished, there would be no assurance that their candidate would be even considered by the Electors. Of course, the individuals voted into office by the House and Senate, once notified, would retain the right to decline to serve. Doing so would move the selection to the candidate receiving the next highest state votes in each Chamber.

The President and Vice-President would be watched carefully by the public to see that they are honestly working together for the good of the nation, or they would be impeached and replaced in accordance with the rules of the Constitution. Impeachment for mal-administration would become a real constitutional remedy again, no longer suppressed by partisanship. The Executive “team” would have to work together to achieve consensus and gain the support of Congress.

Aren’t you tired of the endless “low theater” that characterizes presidential campaigns and debates today? Aren’t you tired of Presidents breaking their campaign promises? Aren’t you tired of the bitter partisan fights between the Executive and Congress? Aren’t you tired of the billions spent on electing the President? Aren’t you tired of the robocalls? I am.

It’s time we returned to the original Electoral College.

We will be discussing this topic on “We the People, The Constitution Matters” on WFYL radio Friday morning, 12 March, 7-8am. You can “Listen Live” at www.1180wfyl.com, or, if you are fortunate enough to live in the station’s broadcast area, on the radio as you drive to work that morning.

You can later download the podcast of the show and listen at your leisure, or you can listen to one of the rebroadcasts during the weekend. I would love to hear your ideas on this topic. Hope you’ll join us.

“Constitutional Corner” is a project of the Constitution Leadership Initiative, Inc. To unsubscribe from future mailings by Constitution Leadership Initiative, click here.

[1] “Making Votes Count: Abolish the Electoral College,” August 29, 2004.

[2] http://www.huffingtonpost.com/tyler-lewis/why-we-should-abolish-the_1_b_8961256.html

[3] Paul D. Schumaker and Burdett A. Loomis, “Choosing A President,” 2002, Chatham House Publishers, p. 176.

[4] Ibid, p. 2.

[5] Derived from the Latin: collegium, meaning an association or guild.

[6] Ibid, p. 39.

[7] Alexander Hamilton, Federalist 68, March 14, 1788.

[8] The voting age population of 2012, minus the 535 members of Congress and the approximately 2.2 million federal employees..

[9] Maine and Nebraska allow electoral votes to be split between parties based on district voting. In both states, two electoral votes are awarded to the winner of the statewide race and one electoral vote is awarded to the winner of each congressional district. Maine has only two congressional districts while Nebraska has three, thus neither state makes a meaningful contribution to the total. In 2000, Gore took all of Maine’s electoral votes and Bush took all of Nebraska’s.

[10] Until 1828 a national vote was not even tallied since some states still allowed the state legislature to select the Electors.

[11] Note that neither team received a majority of the popular votes cast, Gore only obtained a plurality.

[12] Despite these glowing accolades, Forbes magazine named Barack Obama as only the third most powerful person in the world in 2015, behind Vladimir Putin and Angela Merkel. See http://www.forbes.com/powerful-people/

[13] http://www.smithsonianmag.com/history/george-washington-the-reluctant-president-49492/

[14] http://archive.wilsonquarterly.com/book-reviews/reluctant-president

[15] See: http://www.nationalbcc.org/news/beyond-the-rhetoric/2546-the-reluctant-president

[16] As opposed to first-term Senators.

[17] Gary & Carolyn Alder, “The Evolution and Destruction of the Original Electoral College” 2011, GCA Ventures, LLC. p. 6.

[18] Reduced from five to three by the 12th Amendment.