It is difficult to think of one way of holding a national election that is completely fair to all sections of the electorate. The proposal in California that The Times is claiming to be undemocratic is actually more democratic than the current winner-take-all system. Under the current system the Republicans are in a 55 point hole going into a presidential election. Whereas, it is not impossible for a Republican candidate to win in California it certainly is a struggle. Do the Democrats realize that doing away with the winner-take-all system would benefit them in the swing states like Ohio.

The best method of electing a president is a method that grants the United States a purely national candidate, not a candidate that wins a few key states. Under the current system a candidate can become president with just winning eleven states (22%). That is not a national mandate. Most of the South and the Midwest would be left out. If Electors would go back to casting votes based on the Districts they represent we would go back to a more democratic and most fair (not absolutely fair) method of selecting an Executive.

Is more democratic truly more fair?

Our Founders stated emphatically, "NO!"

Today, it appears democracy is more fashionable than republicansim, no matter the very clear warnings we have had and have seen regarding a pure or more pure democracy.

In so doing, he reminds us that most efforts to monkey with our political processes are short-sighted.

Which efforts did you have in mind? Is there a body of proposed amendments to the Constitution the premises of which have been discredited by subsequent events?

There have been 27 amendments to the federal Constitution. The 11th, 12th, 15th, 17th, 19th, 20th, 22d, 23d, 24th, 25th, 26th, 27th, and clauses within the 14th concerned political processes in some way. What disagreeable and unintended consequences have emerged from any of these?

If there was a time-bomb deposited in constitutional provisions, it is the equal protection clause of the 14th amendment, which does not concern political processes. Even so, a sociological study of the law faculties and the federal judiciary would, one might wager, be more illuminating than a study of the text and the ratification debates in coming to an understanding of why that sentence fragment has been used the way it has.

Our Founders stated emphatically, "NO!". Today, it appears democracy is more fashionable than republicansim, no matter the very clear warnings we have had and have seen regarding a pure or more pure democracy.

They were politicians, not prophets. They did not found this country, as that task had begun more than a century before all but a few of them lived. They ran a rebel movement and erected political institutions that had clear precedents in extant colonial forms. Those institutions were the products of political compromise, not some piece of art work for which to amend is to corrupt.

What disagreeable and unintended consequences have emerged from any of these?

One of the worst amendments was the 19th which made the election of senators by the populace instead of the state legislatures.

Untold damage has been done to federalism by this amendment.
All you need to do is look at Ted Kennedy, Harry Reid, John Kerry, Hillary Clinton Chuck Schumer and a few dirtbag republicans to see the awful results of this amendment. In addition to the above the constant bloviating by members of the senate on matters they in which they have LITTLE to NO knowledge or expertise is becoming deafening.

"Our friend Matt Franck"? Given his extreme position on judicial review (i.e., arguing that the commerce clause and the first amendment are not subject to judicial review), I would think twice about who you have selected as intellectual "friends."

John,

You pick your friends; I'll pick mine. I don't have to agree with everything my friends say; do you?

You are free to pick your own friends. But you seemed infer by "our" that he was a friend of this page. I doubt that many writers on this page would want to be associated with his bizarre and ill-supported positions. And while I certainly agree that you need not agree with all your friends positions, if you are as extreme as Franck is in what he claims to be his specialty, then it does give one reason for pause before proclaiming your friendship in a way that suggests an intellectual affinity.

McClane,

Your criticisms are misplaced. It is not Mr. Knippenberg nor Mr. Franck who deserve ridicule. Rather, it is National Review for allowing someone as incompetent as Franck to continually comment about legal issues, when, in reality, he is not a lawyer and quite clearly has no clue what he is talking about. Franck has single-handedly ruined Bench Memos for myself and many others.



Turning to Franck for legal analysis is like a beauty pageant contestant turning to Hillary Clinton for tips on appearing more "lady like." Hillary is not the fool for giving the advice (maybe for believing she is qualified to do so), but the contestant requesting the advice is, quite obviously, a moron.



It is too bad Mr. Franck has ruined Bench Memos, because Ed Whelan is very insightful and I used to enjoy visiting the page. Alas, Franck and his ramblings have ruined it for me.



Suggestion to NRO -- Give Franck his own page (e.g., "Perennial Publius with Franck"). It will be a place where Franck and his admirers--who themselves cannot be too knowledgeable on the law(no offense Mr. Knippenberg)--can go and enjoy "scholarly discussions" amongst themselves. That way, actual legal analysis can be left to those who are, in fact, law school graduates.

Re # 8 - Nice display of credentialism there. Actually legal analysis has been ruined by lawyers. They focus almost entirely on "case law" at the expense of original intent. Original intent is virtually irrelevant to them. Read Gutzman's Politically Incorrect Guide to the Constitution. He is a lawyer by the way.

I don't know Mr. Franck's specific views in question, but I do know that "judicial review" is nowhere to be found in the Constitution, and was not the Founder's intent. The SCOTUS is free to judge the constitutional issues in the case before it, but it decisions are binding only on the parties at hand. The Court can no more "overturn" a law than the Congress can issue a sentence.

All branches of the Fed are equally responsible for "interpreting" the Constitution. The executive, legislative, and judicial. And here is the real kicker. The States are responsible for interpreting it also, as when some States nullified the Alien and Sedition Act. This way you have both horizontal and vertical checks and balances.

I'll comment on the broken Electoral College in a separate post.

Note the name change to avoid confusion with Dan.

As far as I can tell, the EC has never functioned as intended. Originally only the House was directly elected. Senators were appointed and the EC chose the President. The EC system is often billed as a concession to the times when communication was not rapid, and it surely was. But it was also intended to build in a layer between the people and the election of the President.

People would vote for their electors, who might be pledged to a candidate or whose sympathies were well known, but once the EC assembled, if there was no clear winner, the wrangling would have to ensue. Deals would be cut, etc. So you voted for an elector (not a candidate) whose judgment and affiliations you trusted, but there was no guarantee of outcome. Much like how the political conventions used to work.

Very early on factions developed and the layer of separation aspect was gone. The current system of state winner-take-all is better than a direct plebiscite election, but not by much.

We need to move back in the direction the Founders intended, and away from a direct election. (In the same spirit, we definitely need to repeal the 19th Amendment as well.)

I don't know how to accomplish this. It would help if there were more than two factions to allow for more wrangling of interests. And a less national and more regional campaign. Favorite son candidates for example. But theoretically we should be voting for electors, not candidates.

Red: So the Founders did not intend judicial review? Gee, I guess the Federalist Papers must have been written by those other than the Founders:

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact, and must be regarded by the judges as, a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course; to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Federalist 78. As for not finding the words "judicial review" in the Constitution, with due candor I must say that argument is silly. The Constitution grants to the courts the judicial power, not a list of enumerated powers as is the case for Congress. ("The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." U.S. Const. Art. III.) The Constitution also doesn't say expressly that the courts have the authority to issue traditional writs of mandamus or habeas corpus, but no one doubts that that these powers, like the power of judicial review, are part of the judicial power. To say otherwise is to say that the Founders did not understand the term judicial power to include judicial review, but as Federalist 78, and the experience of numerous state courts already established show, they did understand judicial review to be part of the judicial power.

This does not mean that there is not coordinate branch construction, or that the court should anoint itself as the final constitutional arbiter. But that is a very different question from whether the courts have the power of judicial review--something that Red's comment, and Franck's writings, seem to deny.

#9:



Judicial review and judicial supremacy are two distinct concepts. You are conflating the two.



Legal analysis hasn't ruined originalism. Indeed, originalism is a component of legal analysis.



By the way -- I'm sure you're aware of this, but "original intent" is not the form of originalism judges should use. Rather, it is the "original meaning" judges should shoot for. To learn the difference between the two forms of originalism, go look at some of Ed Whelan's posts over at Bench Memos. Good luck wading through all of the Franck nonsense.



As for your "credentialism" comment -- Legal analysis and legal writing are both skills. Law school teaches these skills (some better than others). This is not to say that law school is necessary to learn this skills, nor is it true that everyone who goes to law school emerges proficient in these skills. What is certain, however, is that Matthew Franck is not one of the few people who learned these skills on his own. He is a hack.

Actually the quote you used argues for original intent. Like I said, the Court is perfectly within its right to judge the constitutionality of the issue at hand, but it is only binding on the parties before the Court. Roe v. Wade was binding only on Roe and Wade. It could not overturn State law. The Court does not have the power to do that.

Red: Elsewhere in Federalist 78, Hamilton referred to "the right of the courts to pronounce legislative acts void, because contrary to the Constitution . . . ." While it is generally true that such rulings were generally seen as directly binding only on the actual parties, they were seen as precedents--depending upon which court issued them, binding precedents--for all future cases. The difference you point out regarding the applicability of judgments to non-parties is important, but it is worth pointing out that functionally the result is the same. If a party attempts to enforce a statute otherwise struck down, then everyone knows that they need only walk into court, and the movant will be given an instant injunction and victory based upon the prior precedent (so long as the court chooses not to reverse itself). The courts and the executive can go round-and-round on this, but as long as there is a precedent stating that a law is unconstitutional, any attempt to enforce it will be met with a court rebuke benefiting at least the party against whom the executive seeks enforcement. The more interesting question is when the courts say that a law is constitutional, and the executive says that it is not, and therefore orders that it not be enforced. That is what Jefferson did in the case of the Alien and Sedition Acts, but that is a story for another day . . . .

Did the Electoral College ever meet as a body? It does not do so now. Anybody know?

One of the worst amendments was the 19th which made the election of senators by the populace instead of the state legislatures. Untold damage has been done to federalism by this amendment. All you need to do is look at Ted Kennedy, Harry Reid, John Kerry, Hillary Clinton Chuck Schumer and a few dirtbag republicans to see the awful results of this amendment.

I believe it was the 17th amendment that mandated direct election of senators. The 19th amendment enacted women's sufferage.

The premise of your comment is that the political dynamic within state legislatures (as compared with that produced by electioneering) is such that one may generally expect more scrupulous and responsible senators to emerge from the process. That may be true, but I think you would have to do a fairly rigorous before-and-after comparison to drive the point home.

I cannot claim to know much about the biography of individual politicians, so I am running on impressions here. Charles Schumer and Hillary Clinton have a history of squashing innocent and nearly defenseless private citizens as if they were cockroaches, merely because it was convenient for them to do so (Christina Jeffrey and Billy R. Dale are among their victims). John Kerry stands expopsed as something of a self-dramatizing fabulist. I note, however, that Schumer's predecessors include Jacob Javits and Irving Ives; Clinton's include Daniel Patrick Moynihan, James Buckley, Charles Goodell, and Kenneth Keating; Kerry's include Paul Tsongas and Leverett Saltonstall; and Edward Kennedy's include Henry Cabot Lodge, Jr. All of these men were popularly elected. Were Javits, Ives, Moynihan, Buckley, Goodell, Keating, Tsongas, Saltonstall, or Lodge ever regarded as unscrupulous characters by aught but the admen of the opposition? Mightn't you have confounded a structural problem with a cultural one?

In addition to the above the constant bloviating by members of the senate on matters they in which they have LITTLE to NO knowledge or expertise is becoming deafening.

You would prefer to replace democratic institutions with a mandarinate? Take a number and sit down (behind Laurence Tribe).

Steve: The entire Electoral College may not meet at once, but I know that all of the electoral delegates for each state meet to formally cast their votes and transmit them on to Congress. They do so in Ohio anyway. I've seen it in person.

Art Deco: I don't think the point of senators being elected by state legislatures is necessarily to provide more scrupulous senators, though perhaps that could be a delightful side benefit. Rather, it is to have senators who are loyal to the state's interests not the people's interests. Congress was originally created as a balance of power between the people and the states. By having the people elect both houses, there is no longer a balance of power there. It used to be that if a senator failed to represent his state's interests in Congress, he would lose his job. Now all it takes to be a senator is buckets of name recognition and/or a large campaign war chest.

I don't think the point of senators being elected by state legislatures is necessarily to provide more scrupulous senators, though perhaps that could be a delightful side benefit.

The commenter in question said you could see the damage done by the amendment by contemplating various members of the Senate, among them 'various dirtbag Republicans'. It may not be 'the' point, but it was one of his points.

Rather, it is to have senators who are loyal to the state's interests not the people's interests. Congress was originally created as a balance of power between the people and the states.

You seem to be drawing a distinction between the interests of the general populace and the interests of the apparatus of state. I would not doubt that there is such a distinction, but I am somewhat skeptical that the politicians in question conceived of the state apparatus as an order within society entitled to representation. European diets were often organized so as to provide representation for clergy, nobility, and burgesses. The federal constitution specifically forbids the granting of titles of nobility and (in its amendments) proscribes the erection of an established Church from which clerical representation would be drawn. It seems passing strange that the state apparatus would be so recognized, especially given the small and rudimentary character of public bureaucracies of that era. (Federal civilian employment in 1800 stood at 3,000 souls)

My high school history teacher may have been in error and my memory may be failing me, but as I recall the bicameral legislature was an ad hoc compromise between those which desired representation by population and those which desired each state to have an equal vote, as had been the case under the Confederation. If I understood what I have read correctly, the upper houses of the colonial assemblies did not generally have a predominantly legislative function. (Dr. Knippenburg might enlighten us on that point). The authors of The Federalist or other apologia may have come to some retrospective appreciation of the merits of bicameralism and multiple principles of representation, but that is something different than a motive.

As to 'thedaddy''s contention that direct election of Senators is injurious to federalism, I would offer that I suspect its effects were modest when compared to the Civil War, the burgeoning of interstate commerce attendant upon technologies of transportation and communication, cultural homogenization attendant upon technologies of transportation and communication, the regional economic catastrophes of 1929-36, military vulnerability attendant upon technologies of transporation and communication, & c.

Well, it seemed the best way to determine whose memory of high school history was best was to consult Madison's notes on the Convention to see what was actually said during the debates when the provision was established.

Link

I was somewhat surprised to see that many of those who supported the election of senators by the State Legislatures actually did believe it would produce better quality senators.

John Dickinson, in making his motion for this provision explained that one of the reasons for it was "because he wished the Senate to consist of the most distinguished characters, distinguished for their rank in life and their weight of property, and bearing as strong a likeness to the British House of Lords as possible; and he thought such characters more likely to be selected by the State Legislatures, than in any other mode."

I agree it would have been strange had the Founders made some governmental recognition of clergy or nobility, however, the Founders did see the States, and the governments of the States, as being important components in the structure of the new nation.

According to Madison, Dickinson believed "the sense of the States would be better collected through their Governments; than immediately from the people at large."

The final word on the matter before a vote was taken was given by George Read who believed that "whatever power may be necessary for the Natl. Govt. a certain portion must necessarily be left in the States. It is impossible for one power to pervade the extreme parts of the U.S. so as to carry equal justice to them. The State Legislatures also ought to have some means of defending themselves agst. encroachments of the Natl. Govt. In every other department we have studiously endeavored to provide for its self-defence. Shall we leave the States alone unprovided with the means for this purpose? And what better means can we provide than giving them some share in, or rather to make them a constituent part of, the Natl. Establishment."

Clearly Read believed that the Senate would, in fact, act in some way as advocate for the States and their governments within the Federal government.

It's also interesting to note that this aspect of the Senate was decided well before they decided how many senators would come from each state and whether or not they would be proportional to population or use another method.