Justice Kagan's Accidentally Correct Opinion: The States Elect The President

As the Supreme Court finishes out the 2019-2020 term, it ruled on two small, barely noticed cases from the 2016 Presidential election. Indeed, the cases were noteworthy more for having received a unanimous vote from the Court than from any contentious debate over finer points of Constitutional law, and from the fact that the two cases were heard separately, as Justice Sotomayor had to recuse herself from one case but not the other.

However seemingly minor the cases appear to be, arising from two lawsuits over a state's authority to bind Presidential electors to a specific voting preference, the ruling reiterates an important aspect of Presidential elections that has all but disappeared from political discourse and debate in this country: A President is elected not by the people but by the States. In issuing their per curiam opinion in Chiafalo, et al, v Washington (591 U.S. ___ (2020), Docket 19-465), the Supreme Court laid down a legal reminder of the Constitutional order of things.

America Is Diverse, Not Divided

Consider this headline on Bloomberg: "Election Shows That U.S. Divisions Are Only Growing Wider -- Social discord, partisan rancor and government sclerosis are about to get worse."

Or this headline in The New Yorker: "America’s Fever Is Still Rising"

Consider also this map of "Red" and "Blue" states based on the recent mid-term election results:

Or this map of Congressional distict results:

Where in either map is there a modern-day equivalent of the Mason Dixon Line, which set the northern border of the pre-Civil war "slave" states and then the northern border of the short-lived Confederate States of America? Where is the divide?

How many of the fifty states are wholly "Red" or wholly "Blue"? Even presumably "deep blue" California and New York have noticeable swaths of Republican Red.

Contrary to the breathless hyperbolic headlines, what these maps illustrate is not division but diversity. Both Republicans and Democrats look to Washington DC for national leadership. Both Republicans and Democrats, in seeking power within the Federal government, evince an awareness of a truly united nation. Implicit in all the electioneering, the preening, the posturing, is the premise that these United States are still as we proclaim to be in our Pledge Of Allegiance, "...One Nation...Indivisible, with Liberty and Justice for all."

Republicans and Democrats do not agree on what constitutes "justice". Conservatives and progressives do not agree on what meaning we should have for "liberty."  Yet there is still much upon which Republicans and Democrats do agree, and we see this in the mid-term elections and the aftermath:

• Republicans and Democrats agree that elections matter.
• Republicans and Democrats agree that all votes are important.
• Republicans and Democrats agree that electoral outcomes set the agenda, the direction, and the tone of each administration and session of Congress. 
• By their politicking and even by their pandering, Republicans and Democrats alike acknowledge the eternal truth of Hamilton's assessment of American democracy: "Here, Sir, the people govern."

The legacy media--deservedly and derisively termed the "Fake News Media"--are championing a false vision of the United States. Through hyperbolic headlines such as mentioned above, through such blatant propaganda, they exacerbate disagreement into division. They have transformed worthy debates into "wedge issues" and then hammered relentlessly on those issues to produce the signs of division they so hypocritically bemoan today.

There are real issues and real disagreements among Americans. There are pressing issues for which our governments must devise solutions--our immigration system needs reform, our infrastructure needs repair--and there are real concerns about foreign policy, trade relations, healthcare, just to name a few. Americans do not see eye to eye on any of these issues.

Americans have never seen eye to eye on issues. Americans have disagreed and debated since the founding of the Republic. In virtually every decade since the Constitution was drafted in 1787, there has been passionate and partisan debate over contentious issues, ranging from the role of the Federal government to slavery to Manifest Destiny to the New Deal to the Civil Rights movement of the 1960s. Americans disagreed over Operation Iraqi Freedom. Americans disagreed over TARP and the bank bailouts of 2008, giving rise to the Tea Party, and disagreed over Obamacare, resulting in the wave election of 2010.

Yet the Republic has endured. The government stands. We The People are still here.

That is something the Fake News Media and anyone else who would promote the propaganda of rampant rancor and petty partisanship would do well to remember. Despite their very best efforts, the Union is still standing.

America Voted, And The Winner Was...."None Of The Above"

The results are in, and once again the American electorate has voted for gridlock.

With a number of races still to be called in the House, the Democrats thus far have an absolute minimum of seats needed to control that chamber.  The Republicans, meanwhile have added at least 3 seats to their majority in the Senate.

The legacy media is already giving their typical partisan spin on the results: Dana Milbank at the highly left-leaning Washington Post titled his assessment "America Steps Back From The Abyss". Fox News, ever the reliable establishmentarian conservative outlet, reaches the opposite conclusion with "Thanks to Trump, the Blue Wave Becomes a Ripple.".

Ultimately, both are wrong.

One of the enduring myths of government in the modern era is the notion that Americans want government to do much. Historically, Americans take a dim view of activist government. Since World War II, there have been only 14 out of 37 sessions of Congress (including the upcoming session) where the same party controlled the Senate, the House, and the Presidency:

During that same period, America has had 20 sessions of Congress with a Republican President and only 17 sessions with a Democrat President. Republicans have controlled the Senate for 13 sessions and the House for 11 Sessions. Only once has America voted to give a President a unified Congress, and that was in 2002, when President George W. Bush was handed a Republican Senate to go with a Republican House. In 2010 and now again in 2018 the voters have responded to unified government by giving control of the House to the opposition party.

What America rejects is not so much Democrat and Republican politicians, but rather unified and effective government under either.  If there is any historical consensus among the electorate, it is for a Republican President with at least one chamber of Congress in Democratic hands. Partisanship is not the expressed will of We The People, not over the long term.

America's notion of good government, then, is not government that is either Democrat Blue or Republican Red. Good government in this Republic is Democrats and Republicans together addressing the nation's issues and attending to the nation's business.  Divided government produced the 1986 tax reforms under Ronald Reagan, and the 1996 welfare reforms under Bill Clinton.

In contrast, the unified Democratic administration of Lyndon Johnson ended in the social upheaval and chaos of 1968. The unified Democratic administration of Jimmy Carter resulted in "stagflation" which ushered in the Reagan era. The unified Republican administration of George W. Bush authorized Operation Iraqi Freedom. The unified Democratic administration of  Barack Obama resulted in Obamacare.

America's experience of unified government does not encourage us to indulge in it often.

If there is an election mandate arising from the 2018 midterm election results it is this: Democrats and Republicans must work together, and the Congress must work with the President to conduct this nation's business. If there is an electoral rebuke to be derived from these results it is to the notion that either party is much trusted by the American electorate with untrammeled power.  America prefers government that does what is necessary but no more than that--Americans prefer government to do too little than too much.

When given the choice between Democrats in power and Republicans in power, the choice of We The People has been once again "none of the above."

Hopefully, our elected officials in Washington will understand this and will behave accordingly.

Still "We The People"

On November 6, 2018, just two days from now, America will have an election.

In just two more days, America heads to the polls, in what is undoubtedly the most closely watched mid-term election at least since World War Two, if not in the history of the United States.

In just two more days, the entire House of Representatives will be (re)elected, and one third of the Senate will be (re)elected.

In just two more days, the political composition of our nation's government will be decided, and we will know how many Democrats and how many Republicans will sit in either house within the Congress.

There has been prognostication, punditry, and arrogant analysis on both sides ad nauseum. As of this writing, both sides are alternately acting as if they are on the cusp of electoral greatness and teetering on the brink of electoral disaster.  

As regards to which party might take control of either the House of Representatives or the Senate, my sentiment is best expressed by Clark Gable at the end of Gone With The Wind--"Frankly, my dear, I don't give a damn."

The Democrats may take control of the House. It is unlikely they will take control of the Senate. In no likely scenario do they have enough votes to impeach President Trump and throw him out of office.  

Regardless of the electoral outcome, Democrats and Republicans and President Trump will still have to work together to advance American interests and cultivate American prosperity.  In this regard the election of 2018 is exactly like every other mid-term and Presidential election we have had since the founding of the Republic.  On November 7, just like on every day after an election, the government will still have to govern, and the rest of us will still have to get up, go to work, and work to move our individual lives forward in whatever direction we have chosen.

Regardless of the electoral outcome, I hope the public discourse will shift away from politics and  towards policy.  Instead of discussing the merits and demerits of this or that political figure, the fitness or unfitness of Donald Trump for the Oval Office, let us instead discuss the merits and demerits of this or that policy. Let us sound off on whether more tax cuts are needed, on whether President Trump's border wall should be funded, on whether the government should continue to use tariffs as a weapon in internecine trade warfare with the world. Let us voice our opinions on immigration reform and on birthright citizenship. Let us turn our energies away from perfecting politics and towards perfecting policy.

Regardless of the electoral outcome, let us realize that we are defined by things other than how we cast our ballots. We are defined by our jobs, by our communities, by our families, and we are defined by our country. 

We The People are not merely Americans, we are America.  Whether we vote for Democrats, Republicans, Conservatives, Libertarians, Greens, or for any other political party, we are still just Americans--one people, not many hyphenated subdivisions of a people.

President Kennedy, speaking to the 1963 graduating class at American University, stated that "...our most basic common link is that we all inhabit this small planet. We all breathe the same air. We all cherish our children's future. And we are all mortal." 

A quarter century later, President Reagan, in his Farewell Address at the conclusion of his Presidency, reminded us that our government begins with us, with "We The People":

"We the People" tell the Government what to do, it doesn't tell us. "We the people" are the driver - the Government is the car. And we decide where it should go, and by what route, and how fast. Almost all the world's constitutions are documents in which governments tell the people what their privileges are. Our Constitution is a document in which "We the People" tell the Government what it is allowed to do. "We the people" are free.

Regardless of the electoral outcome, we still inhabit this one small planet. We still inhabit this one nation. We still breathe the same air. And we are all still mortal.

Regardless of the electoral outcome, we are still one people. We are still one nation. We are still the masters of our government, and never its servants. We still tell government where to go, how to get there, and how fast to go.  We are still free.

Regardless of the electoral outcome, we will never fully agree on either politics or policy. We will never, as a people, be unanimous in either support or opposition to a President, to an Administration, to a Congress, or to any act or policy they might seek to enact. We are one people, but not of one mind, and we are not meant to think and act in perfect uniformity. 

We are one people, and as a people we are meant to discuss and debate, to share ideas, to let ideas compete with ideas so that the best thoughts will prevail. Our more perfect Union was formed by debate, and it grows by debate. The true American Revolution came not on the battlefields of Lexington, Concord, Trenton, or Yorktown, but in the meeting hall in Philadelphia where Americans joined together to create a constitution and thereby recreate a government. 1787 was the first time in history men redefined their government without a shot fired in anger--a true political revolution unlike any before or since.

Let us remember that, let us be mindful of that, and let us always strive to live up to that. Let us be, now and always, "We The People".

FACT: The STATES Elect The President, And Always Have

The core of the right to free speech is that each of us deserves to be heard. Basic human respect requires we take the time to listen and reflect upon our several opinions.

However, basic self-respect requires that when, upon reflection, we realize that what someone has said is complete and utter nonsense, we state--plainly, bluntly, unequivocally--that it is complete and utter nonsense.

Consider this bit of balderdash from Lawrence Lessig, Harvard Law School professor and lawyer of some renown:

Conventional wisdom tells us that the electoral college requires that the person who lost the popular vote this year must nonetheless become our president. That view is an insult to our framers. It is compelled by nothing in our Constitution. It should be rejected by anyone with any understanding of our democratic traditions  — most important, the electors themselves.

What makes this seemingly reasonably phrased paragraph balderdash? Upon inspection, quite a few things.

The most glaring error is a rather unforgivable error of fact--namely, that a popular vote for the nation's Chief Executive is somehow within the Constitutional order of things. It is not. The text of the Constitution flatly contradicts this idea, 

Article II, Section 1, Clause 2 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.

This particular clause of the Constitution has never been amended. Clause 3 of Article II, Section 1, was rewritten by the Twelfth Amendment, and Clause 6 by Amendments Twenty and Twenty-Five, but that is the extent to which Article II--which governs the office of the President--has been modified from the original text.

This particular clause is clear and unmistakable in its language: The states, acting principally through the agency of their respective legislatures, select Electors, who in turn cast their votes for President and Vice-President of the United States. Nothing in the Constitution requires that any state hold a popular vote as part of the selection process--and the historical fact is that in the Presidential elections of 1788-1789 and 1792, only six states held a popular vote of any kind. The remaining states appointed their electors via the legislature.

While the popular vote method of choosing electors has become ubiquitous throughout the Republic, it very much remains at the discretion of state legislatures--and in theory a state could abandon the popular vote mechanism at any time through a simple act of the legislature. Professor Lessig is factually in error when he speaks of a monolithic "popular vote" and factually in error again when he suggests that the Constitution is silent on the matter. The Constitution is explicit on how a President is elected: States elect the President.

Professor Lessig is also therefore guilty of an egregious error of logic when he states that an Electoral College outcome that is at odds with a nationwide amalgamation of state popular votes is somehow an insult to the framers of the Constitution. The framers of the Constitution did not assign the election of the President to "the people", but to the states, and further very explicitly called upon state legislatures to decide the particulars of each state's process for appointing Electors. The nationwide vote total is legally, politically, and historically irrelevant. Surely Professor Lessig knows this--for surely anyone who reads the Constitution can see this (one hopes that the Constitution is still taught in Harvard Law School).

Professor Lessig is also guilty of erroneous historical statement when he speaks of the operation of the Electoral College being at odds with our historical traditions. The earliest historical tradition of American governance is that the Constitution defers to state legislatures in the selection of Presidents and Senators (South Carolina did not hold popular votes until after the Civil War).

Debunking Lessig's thesis takes but a few moments of perusing the text of the Constitution--and the Constitution fully and flatly rejects Professor Lessig's thesis in its entirety. Simply put, he is wrong.

Professor Lessig is entitled to his opinion. He deserves a chance to be heard. The First Amendment and basic decency demand of us no less than this. But honesty, intellectual integrity, and that same basic decency demand of him--and of all of us--that we at least ensure our statements of fact are accurate, that our logic is sound, that our reasoning sober and grounded. Professor Lessig has failed in all these respects, and while he retains his right of free speech, he retains also the right to be ridiculed for being foolish. That is precisely what his thesis is: foolish. There is no Constitutional foundation for any of it, nor for the trope of a national popular vote in the election of the American President.

As important as discussion and debate over the merits and demerits of our electoral system are, the one absolute imperative upon everyone--and in particular lawyers and professors of law such as Lawrence Lessig--is that we read the text of the Constitution accurately.