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.

Our Post-Federal Government

Federalism

the distribution of power in an organization (such as a government) between a central authority and the constituent units

James Madison, near the conclusion of Federalist 9, offered up this characterization of his vision of what the nascent United States government under the Constitution should be:

The definition of a Confederate Republic seems simply to be, "an assemblage of Societies," or an Association of two or more States into one State. The extent, modifications, and objects of the Fœderal authority, are mere matters of discretion. So long as the separate organization of the members be not abolished; so long as it exists, by a constitutional necessity, for local purposes; though it should be in perfect subordination to the general authority of the Union, it would still be, in fact and in theory, an Association of States, or a Confederacy. The proposed Constitution, so far from implying an abolition of the State Governments, makes them constituent parts of the National Sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of Sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a Federal Government.

This was the government the Constitution established for the United States. This was the government that Benjamin Franklin opined was America's posterity "if [you] can keep it." 

Keeping the Republic has always been the great challenge of this country. From the bloody carnage of the Civil War to the various oppositions of individual states to various pieces of national civil rights legislation, Franklin's skepticism about the durability of the Republic has repeatedly been shown to be well founded. The enduring constitutional controversies surrounding the Patriot Act are but the most vivid example of ways in which the national government challenges and arguably undermines the shared sovereignty model of federalist government articulated in the Constitution, with the ongoing debate over the Constitutionality of ObamaCare running a close second.

The Constitution, as well as Constitutional governance, are subject to constant challenge. To date, elections and the courts have proven sufficient to meet the challenge, but the danger these means will eventually prove inadequate to the task has always hovered over all debate over the nature and future of the Republic.

With the spectacle of Adam Schiff and his Clown World Impeachment arrayed before us, it is time to acknowledge these means are failing us. The courts have not proven themselves immune to the contagion of partisan politics, with many jurists abandoning their sworn duty to impartially apply the law without fear or favor. Our elected representatives see fit to act in ways directly hostile to the Constitution, to champion such hostility, or are simply supine in the face of such hostility. Federalism, as promoted and promised by the Constitution, is no longer a distinguishing characteristic of the national government of the United States. Ours is now a "post-Federal" government--and that is not sanctioned by the Constitution.