With Apologies to Orwell   Leave a comment

The irony is that the president who lost the popular vote but was swept in by the Electoral College likely does not understand that that particular process was initially put in place to shelter the American ‘peculiar institution’ from those who would have dismantled it. To double the irony, many of his followers, given the chance, would restore that institution, and possibly even a few of them do understand the irony. Unfortunately, there is no short-cut to understanding how the college came to be part of the election process; only by going back to the origin and reading about who the Founding Fathers were, and what they had to say, can it be comprehended without introducing partisan rancor.

To put it bluntly, the United States was founded on a slave-based economy that granted many of the Founding Fathers great prosperity thus every incentive to defend. The roots of modern-day ‘white supremacy’ lie in beliefs cherished by many members of the ruling class of the Eighteenth Century, including a number of the men who crafted the American Constitution.

In 1945, when George Orwell penned Animal Farm, he had Soviet Russia in mind but other parallels can be drawn. In the opening lines of his classic novel, the elderly pig ‘Old Major,’ speaking shortly before his death warned the other animals about the abuses of farm owner Mr. Jones, who is subsequently run off. The animals, now in control but led by another pig, ‘Napoleon,’ craft their own Bill of Rights, with the most important one reading “All Animals Are Equal.” This statement mirrored Thomas Jefferson’s credo that “all men are created equal,” a key claim in the Declaration of Independence. Note that the phrase “all men,” in 1776, had a different meaning than the same words do today.

Right from the start, each of the original thirteen colonies had slaves. Responding to Quaker pressure, Pennsylvania banned the practice in 1781, just a few years before hosting the Constitutional Convention in Philadelphia. The border states of Maryland and Delaware sanctioned it until banned in 1865 by the Thirteenth Amendment. In the north the practice was largely abandoned and by the time of the 1787 convention few slaves remained north of Maryland. Few, but more than none, as it remained mostly legal.

In some southern counties, however, slaves outnumbered the non-slave population. Prior to the introduction of mechanized cotton picking – the first practical machine wasn’t demonstrated until 1936 – the regional economy was reliant on cheap labor.  The south – particularly the Deep South – depended on cotton exports. In Virginia – the home of slave-owners George Washington, James Madison, and many others, tobacco was the primary cash-crop, at least until Revolutionary war exigencies prompted planters to shift to food crops. (Jefferson also hailed from Virginia and owned slaves, but was not signatory to the Constitution.)

These were the men who crafted the vital compromises necessary to persuade thirteen fiercely independent sovereign states to ratify a legal framework the likes of which the world had never before seen and that few Europeans thought could actually work. Of the thirty-nine men who signed the original document, twelve were from the south, eight came from the Border States and nineteen were from the north – a ratio they were well aware of. Deliberations were in secret so the windows were closed tightly to thwart eavesdroppers, which must have been wonderful in summertime Philadelphia.

Of the twelve southerners who signed the Constitution, at least five owned significant numbers of slaves. This included Washington – who released all of his at his death – and also Pierce Butler of South Carolina, the aristocratic owner of many and the author of the Fugitive Slave Clause (Article 4 Section 2 Clause 3, since rendered meaningless by the Thirteenth Amendment) which mandated that northern states must return runaways.

Madison is considered the author of what has come to be called the “Virginia Plan,” which laid out the basic structure of the United States Government as we know it now. His plan called for the familiar three branches, but differed with today in ways that included the process by which the legislative branch was to be elected.  Under the Virginia Plan, there were two houses in congress, both with representation determined by population count, with members of one house chosen by members elected  by popular vote to the other and drawing from nominations from their respective states. This plan obviously disadvantaged the smaller states by allowing them fewer votes in Congress.

The “New Jersey Plan,” penned by William Paterson, attempted to correct this inequality by moving to a single legislative body with equal representation – akin to our modern day Senate. Unsurprisingly, the larger states balked at this, fearing – among other things – the small states would impose a disproportionate tax burden on the large states. At the time, the population of Virginia was three times that of New Jersey, unlike today with New Jersey slightly more populous than Virginia.

The “Connecticut Compromise” brought it all together, but only after some wrangling. Under this plan, crafted by Roger Sherman, one chamber would be population based, and only that one could initiate tax proposals. The other chamber would have two members from each state, irrespective of population size.

The only remaining question was: Who is to be counted to determine the size of the population? The South wanted to include the slaves and the North said ‘Fine, as long as they also count for apportioning taxes.’ This became the next sticking point.

The United States Constitution, in Article 1, Section 2, Clause 3, shows how compromise was reached.

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

Those “bound to service for a term of years” were commonly termed “indentured servants;” individuals who voluntarily contracted themselves to a fixed term of service, primarily to finance their passage from the Old World. They may have been treated like slaves but they were guaranteed freedom once their obligation was met, and were not prohibited from seeking an education.

Each state’s “respective Numbers,” according to the same Article, is to be determined every ten years, thus calling into existence the National Census. Article 1, Section 3 Clause 1 provides that each state has precisely two senators, originally to be chosen by the state legislature but later changed to popular vote. This ensured that small states have the same Senatorial clout as large ones, although they can be outvoted in the House of Representatives.

So who were the “other Persons” who were only afforded three-fifths of personhood? These were the slaves, brought here either by force or as descendants of earlier enchained immigrants – those who were forever denied any hope of freedom or education. Why were they even counted? Simply put, had they not been included in this calculation, northern votes might have controlled congress, threatening the ‘peculiar institution’ with legislative extinction. By counting them in this manner, southern states controlled congress, thus protecting what they held to be their birthright. Had Pierce Butler’s full count prevailed – including all slaves – southern states would yield the complete power of a full majority, but the final compromise led to congressional near-parity.

The word ‘slave’ does not appear in the United States Constitution. The Founding Fathers clearly understood the public relations freight borne by that one word, particularly in the northern states: ‘Other Persons’ worked just as well as a descriptor. The issue of slavery was, at the time, so contentious that the Constitution (Article I, Section 9, Clause 1) prohibited congress from banning further importation for twenty years, essentially tabling the discussion until at least 1808.

Article II, Section 1, Clause 2 establishes the Electoral College.

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.

Clause 3 went on to detail the functioning, including assigning the task of tie-breaker to the House of Representatives, and to establish the person receiving the second-largest number of votes as Vice-President, without regard to that person’s party affiliation – which may have differed from that of the President.  This clause was superseded by the Twelfth Amendment, ratified in 1804, which clarified the process but did not correct the potential conflict. Both the original and the amended versions specified that the electors would meet in their own states then forward their choices to the President of the Senate – the sitting Vice President.

The process worked so well, in fact, that four of the first five presidents were Virginians. John Adams, the second president, was from Massachusetts but was Vice President under Washington.

Federalist 68, believed written by Alexander Hamilton, described how the college would ensure that only a man “of good character” would be granted the presidency. While it is beyond the scope of this paper to delve into every aspect of that paper – it is highly commended to the reader – some parts are noteworthy (emphasis provided by original author).

It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.

It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the President of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief. The choice of SEVERAL, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements, than the choice of ONE who was himself to be the final object of the public wishes. And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place.

Note that the electors are not constitutionally pledged to cast their vote for any particular candidate, but are obliged to consider the merits of each one prior to reaching a decision. Any policy that dictates how an elector votes is encoded in state law, not in the Constitution. Likewise, state policies that provide for “winner take all” are based on statutes which not all states have enacted.

Madison, writing in Federalist 10, warned of the dangers of factionalization, arguing that the republic form of government was superior to pure democracy, particularly as the population increases in size.

AMONG the numerous advantages promised by a wellconstructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. …  The instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations. The valuable improvements made by the American constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarrantable partiality, to contend that they have as effectually obviated the danger on this side, as was wished and expected. Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority

By these excerpts we see that our Founding Fathers clearly understood the risk of the most important office in the land being seized by individuals seeking self-aggrandizement over national interests, and established the controls they felt could prevent that occurrence. In fact, according to Madison, the Electoral College was charged with preventing just that.

All of this would have been very comforting to Orwell’s character Old Major, who spoke of universal truths, equality, and shared values. In his ideal world, shared labors yielded shared rewards. His successor, Napoleon, was of a different mind and understood what was meant by ‘self-aggrandizement.’  Perhaps it was not what Jefferson envisioned, but it seems suspiciously to be a force of evolution. Napoleon, in fact, came to claim military honors despite being conspicuously absent in the battle when Jones attempted to recover the farm.

By the same token, defining precisely what is meant by “one man one vote” continues to bedevil both pundits and statesmen, and the question remains far from settled. In deciding the 1964 matter of Reynolds v. Sims the Supreme Court required states to apportion legislative seats on a more-or-less equal basis, considering the total population, thus addressing some serious iniquities at the state level. In Evenwel v. Abbott the Court, in April of 2016 during a messy campaign, ruled that states were required to consider the total population, including non-citizens not permitted to vote (but not including those in the United States illegally) in performing these calculations. This ruling set off howls of indignation in some quarters, chiefly from those who held that non-citizens were not entitled to representation; some partisans went so far as to create fake-news claiming that illegal immigrants had been awarded the franchise.

Reynolds, however, had no impact on national apportionment, which led Justice John Marshall Harlan II to fret, in his minority opinion, about how the ruling jibed with the Constitutional requirement of precisely two senators from each state. Harlan held that the Equal Protection Clause (Fourteenth Amendment, Section1) was not intended to be extended to voting rights, however the balance of the court disagreed with him.

So where does that leave us regarding the Electoral College? Small states such as Maine and Wyoming have, in one case four and in the other three electoral votes. Doing the math leads us to see where Harlan’s concerns might apply. Wyoming is the smallest state, population wise, and one of six with only one Representative – hence three electoral votes. Using the “Equality State” as a benchmark, it takes 3.47 California voters to match one from Wyoming.  New York and Florida are similarly disadvantaged, at 3.42 and 3.31, respectively. Pierce Butler’s state of Virginia today comes in at 3.15.

In this calculus the smaller states don’t lose quite as much. It takes 1.70 Maine voters to match the will of one from Wyoming, 1.69 from Montana, and Vermont comes close at 1.03.

Obviously, no campaign advisor would recommend placing a higher importance on Maine’s four electoral votes than New York’s twenty-nine, despite the greater relative influence of the individual Maine voter. Likewise, no political party will back the Constitutional Amendment need to scrap the Electoral College – except one that is not in power.

Since the 1880’s all states except Maine and Nebraska have embraced the ‘Winner Take All’ practice for tallying Electoral College votes. This means that – for example – if candidate ‘A’ takes 51% of the popular vote in New York State, that candidate will receive 100% of New York’s twenty nine electors, thereby leveraging the power of the majority and relegating the minority view to an asterisk. This practice has, in truth, far more effect on the presidential outcome than does the relative disadvantage felt by – say – individual California voters compared to those in Maine.

Since the adoption of the Constitution, in most presidential elections the Electoral College closely matched the popular vote, but not in all and a very few have been most notably at variance. The correction of this does not require abolishing the College, it merely requires ending the ‘Winner Take All’ calculation – a step exclusively within the purview of each individual state. If this were to happen, in the above hypothetical calculation, fourteen of New York State’s electors would go to candidate “B,” the result more evenly reflective of the public will. Likewise with the manner the various states deal with the question of “faithless electors” – those who exercise the responsibility of conscience outlined by Hamilton. Legislative fiat does not supersede Constitutional dictate, except through the Amendment process.

Change did not come quickly in Orwell’s dystopian society, either. Each step down the road, once Jones was tossed out, was incremental and in itself, scarcely noteworthy. In fact, only a few animals understood the difference when their charter, writ large on the barn wall, came to read:

All animals are equal

but some animals are more equal than others.

Posted December 23, 2016 by JD Rule in Uncategorized

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