Constitutional Government 101

This entry is part 6 of 5 in the series Federalism, Democracy And Presidential Elections

constitutionOne can get so used to watching career party politicians stretch, bend, fold, spindle, mutilate or openly flout the Constitution that it comes as a shock when one of them actually makes a correct reference to it.

And that correct reference when wielded by a courageous legislator can be a “shock and awe” spectacle striking fear in appointed bureaucrats who have never seen the Constitution used as it was designed.

Just such a case has happened recently as Rep. Michelle Bachmann (R) Minn. as a member of the House Financial Services Committee asks a question that is rarely uttered and obviously a subject of dread among both the unelected nomenklatura and the elected representatives in attendance. The question that wreaked such havoc? “What provision in the Constitution can you point to to give authority for the actions that have been taken by the Treasury since March of  ’08?”

Posted below is a video of the hearing on from Youtube. Things to watch for:

  1. Chairman Barney Frank’s seeming (but not shocking) gender confusion. He seems to calls Rep. Bachmann “The gentleman from Minnesota.” Having met and conversed with Rep. Bachmann, this author can testify that there could be no mistaking her for a gentleman.
  2. The complete inability of Secretary Geithner to cite a single constitutional delegation of power, explicit or “implied,” for what he, the Treasury Dept. or the Fed are doing to the economy.
  3. Fed Chair Ben Bernanke’s a) suicidal tendency to rush in where angels fear to tread b) a complete inability to point to any actual constitutional authority other than an undefined congressional authority to appropriate funds and c) the American public should be kept in the dark because we are too stupid to discern how central banking works.


What Rep. Bachmann gives here is a quick lesson in Constitutional Government 101, a class that should be required for all freshman Representatives and Senators an all members sitting for 2 terms or more. Note too, that Rep. Frank gives a lesson in old-style partisan political hackery. When Bachmann asks a question that will,  frankly, cause Geithner and Bernanke to only make the inescapable hole that they have dug even deeper, he quickly steps in so that they will not have to answer the question, since there is no good answer to it.

This is the kind of representation that Christian constitutionalists want. What we need in the United States Congress is 435  Michelle Bachmann’s and Ron Paul’s and 100 more like them in the Senate. Then we might, if we are as a nation sufficiently repentant and reliant on Christ as our guide, begin to dig out from the unconstitutional nightmare that is the federal leviathan.

The Return of “Divided Sovereignty”

This entry is part 5 of 5 in the series Federalism, Democracy And Presidential Elections

constitutionThe enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. –The Ninth Amendment to the US Constitution

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. -The Tenth Amendment to the US Constitution

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. -James Madison in Federalist 51

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.- The Virginia Resolution of 1798

At least 20 states are currently crafting or holding hearings on legislative resolutions that re-asserts the original jurisdictions and powers guaranteed to them in the 9th and, especially, 10th amendments (quote above).

And now that list has expanded to include Ohio. Just this week (Wednesday March 18, 2009) House Concurrent Resolution (HCR) 11 was introduced into the Ohio House. Virtually all of the resolutions in the various states cite what has become in the last century or so the largely forgotten 10th amendment to the US Constitution. All of the various state resolutions have slightly different language and motivation behind them, according to the needs of the individual state.

In Oklahoma, for instance, the underlying motivation is the attempt by the federal government to force Oklahoma to allow a NAFTA superhighway (actually a HUGE multi-lane car, truck, rail, communication corridor under international control; just imagine being pulled over for going 66 in a 65 zone by a law enforcer who answers not to some local elected body but an unelected international board and may not even be an American citizen) that allows foreign rail and trucking, beginning in Central America and terminating at a hub in Canada, onto US territory without benefit of Customs inspection until they reach the main terminal in Kansas City (no terror threat to see here; move along), to cut a huge swath through the center of the state. Of course, the federal government has been busy denying that any such corridor actually exists.

Unfortunately, Texas Department of Transportation let the cat out of the bag a couple of months ago by holding a press conference to announce that Texas’ portion of the project that never existed had been canceled by popular demand of Texas residents. Enterprising Texans had gotten control of local and regional zoning and planning boards and simply refused to allow the corridor permission to begin construction within the confines of their jurisdiction. This was forcing an exceptionally large detour in the highway (3 counties or so). Further information can be obtained by purchasing DVD’s of last July’s Freedom 21 Conference in Dallas TX, available here. The details of this was one of the best presentations at Freedom 21 last year. This year’s looks to be at least as good.

In Ohio the fulcrum is unfunded federal mandates. This is a brilliant move on the part of the drafters. The drafters also wisely cite Article IV, sec. 4 and the 9th Amendment of the US constitution. Article IV, sec. 4 guarantees each state a separate republican form of government, meaning that each state has the right of self-determination through the action of its duly elected representation. The 9th Amendment states that men have many more inherent rights than are mentioned in the bill of rights and that the fact that they are not mentioned does not mean they may be usurped by an omnipotent federal leviathan but are to be protected as strenuously as the others which have been mentioned. This has become an extremely important consideration but has been virtually ignored since the War between the States.

“OK,” you might be saying, “but why is this such an important consideration?” The answer lies in the Virginia Resolution, quoted above. Passed immediately following the passage of the Alien and Sedition acts, federal laws which openly violated the 1st and 5th Amendment protections of the right of free speech and press and the right to due process of law. Virginia and Kentucky each passed resolutions declaring their sovereignty under the 9th and 10th Amendment and furthermore declared their intention to interpose on behalf of citizens of their own states whose rights were being trampled by means of federal usurpation.

It is interesting to note that the word interposition has virtually disappeared from modern legal dictionaries even though, obviously, it was a well-known legal concept in the early part of the American Republic. The War between the States nearly killed the concept.Interposition takes place when the lesser (state) authority places itself between the greater (federal) authority (exercising its authority unlawfully) and the citizen subject to both authorities.  Thus, the Article IV guarantee of a republican form of government for each state.

It must be understood that the Constitution is a negative law document. In contrast, the old Soviet Constitution was a positive law document; the Soviet government assumed all authority and the peoples rights were specifically outlined within the document. The US Constitution, on the other hand, assumes that all authority rests in the people (there is an important distinction that the Christian must make here, discussion of which we are going to forego right now. Suffice it to say that the Christian knows that ALL authority in heaven and earth has been given to Jesus Christ. Individuals have authority to establish government insofar as Christ delegates it to them) and that the government’s power is strictly restricted to those specific powers that the people willingly delegate to it. All other authority is forbidden to government and reserved to the individual. Hence, the enormity and complexity of positive law documents and the simplicity and, often, eloquence of negative law documents. It’s much simpler and easier to say “you have all rights except these” versus “here is a specific list of your rights.”

The purpose of government in the limited authority model is the protection of the rights of the individual both from other individuals and from government abuse. In this light, the lesser authority has not just the right to interpose in opposition but the duty to do so since the whole of his authority was given to protect the rights of the citizen.  So what does this have to do with unfunded mandates? Because of the loss of the original balance precipitated by the growth of federal power at the expense of state authority and individual liberty in violation of the 10th Amendment, the federal authority has assumed the power to dictate to the states that they must administer certain programs at their own expense.

In essence the federal authority is shirking its responsibilities to pay for the state administered federal programs that they have forced on the states, usually over the objection of the citizens, mostly because of political considerations. It’s a lot easier to let state authorities take the heat over unpopular tax increases that must come with unfunded mandates than to increase federal taxes to cover their cost.

The former insures that political wrangling at the state level over how to make it look like the other political party was “really at fault” for mandatory tax increases from federal mandates will both disgust and eventually numb the citizens to the real problem which is with their federal representation. The latter option would quickly result in a change in federal representation and a quick end to the programs that are increasingly consuming the citizens’ assets against their wills. In this light it is easy to see why the unfunded mandate is the method of choice for the federal politician.

“But aren’t you talking about nullification with resolutions like these?” you might be asking. Quite simply the answer is no. Interposition is not nullification. Nullification is a complex political activity. It requires the calling of a special state convention independent of the state legislature, the selection of delegates to represent the people of the state and debate of the issue followed by a vote of those delegates based on whatever criteria that convention develops on whether or not to declare the federal legislation null and void within the confines of that particular state.  Interposition is an act of a state legislative body saying simply “you can’t do that here because you don’t have the constitutional authority.”

Some might be saying “you just want to use this as an excuse to start a secession movement, don’t you?” The answer is obviously no. Interposition and nullification are both remedies: one legislative, the other political, for grievances against federal usurpation of state authority and individual liberty. They are specifically designed to eliminate the possibility of  secession, not make it more likely. No one who thinks is thinking of secession.

What sovereignty resolutions like HCR 11 are about is the re-balancing of the state-federal government equation. It is a re-distribution of authority, already constitutionally restricted to the states and local bodies, back to its intended delegates.

How Not To Think About The Electoral College

This entry is part 4 of 5 in the series Federalism, Democracy And Presidential Elections

Voting MachineAn article in The Oregonian for March 12, 2009 has one of the most surreal headlines this author can recall.

“Oregon House votes to end the Electoral College” screams the headline. All efforts to find other gems like Oregon Senate Passes Bill Rescinding The Law of Gravity; Awaits Governor’s Signature With Austronaut Pen Designed For Weightlessness or Perpetual Motion Machines Now Possible As Oregon Legislature Repeals Laws of Thermodynamics came to nought. Apparently there is still at least some sense of the impossible in Oregon journalism.

Not to be too snarky, but the Oregon legislature has no more authority to end the Electoral College (EC) than it does to create the laws mentioned repealing basic laws of physics. Journalists (not to mention editors, a problem noted earlier in this series of articles) should have at least a general working knowledge of the basic design and operation of the Electoral College before being turned loose to distort the facts of stories and misinform the public on the subject.

What are the problems with the article exactly? Here’s a list-

  1. The Oregon House voted today to end the electoral college system in favor of the popular vote in electing a U.S. president-

    WRONG! The Oregon House voted to surrender it’s sovereign authority to choose electors pledged to a specific presidential candidate. Oregon already awards its EC votes on the basis of the popular vote- within Oregon. The proposed legislation would ignore the will of Oregon voters  and awards its states precious EC votes on the basis of the national popular vote winner.

  2. Four states have endorsed legislation to ban the current system, which awards all the electoral college votes in a state to one candidate-

    Where, oh where to start with this mish-mash of disinformation? First, states have no constitutional authority to “ban the current system.” What they can do is pass a law thumbing their collective noses at their own state’s popular vote to impose a tyrannical system that would hand over EC authority to choose a specific candidate to the the 10-15 largest cities in the United States. They can perform this supremely irresponsible act because states are guaranteed nearly unlimited constitutional authority to choose presidential electors in any way that suits the state. But, legally speaking, they must still appoint presidential electors. Thus, the claim that the legislature passed a bill to  “ban the system” is an egregious display of journalistic buffoonery.

    Second, not all states award their precious EC votes on the basis of the popular vote, at least not entirely. Maine and Nebraska award their share of EC votes representing their members of the Federal House of Representatives on the basis of the popular vote within that specific congressional district. The EC votes representing the 2 federal Senators are awarded on the basis of the popular vote statewide. This most fair and representative of  systems insures that the cities cannot overwhelm the vote of the countryside and a truly proportional result is achieved.

  3. “For Oregon to join this interstate compact would move the nation one step closer to making sure every vote counts in presidential elections,” said Rep. Ben Cannon, D-Portland, who carried the bill-

    Except for the voters of Oregon whose explicit wishes may very well be completely ignored in favor of the combined votes cast in New York, Los Angeles, Chicago, Houston, Philadelphia, Phoenix, San Antonio, San Diego, Dallas, Atanta, Baltimore, Boston, Cleveland, San Francisco, etc. Rep. Cannon’s quote is possibly one of the most cynical and asinine utterances we’ve seen since…well…since the last presidential election cycle.

  4. The National Popular Vote would take effect when and if enough states equaling 270 electoral votes — a majority –approve the legislation to join the multi-state compact-

    How about some details here? What does this “multi-state compact” say exactly? What are the details of the agreement? Can states withdraw? If so- how? If not- why? What happens if, for instance, Oregon voters give presidential candidate “A” 60% of the popular vote but the rest of the country give presidential candidate “B” 50.01% of the popular vote in a squeaker with obvious fraud and Oregon then awards all of their electoral votes to candidate B on the basis of the compact? What if Oregon voters strenuously or even violently object to their electoral will being thwarted? Worse yet, what if the 50.01% of the vote was completely dependent on the votes cast in a single large state, the popular votes of the remaining states in the compact going to presidential candidate “A?” Has anyone asked these questions? How about it journalists?

Frankly, this effort appears to be one of the most poorly thought out attempts to circumvent the Constitution that has come along in some time. No one seems to be think through the possible scenarios and no one seems to be taking the time to examine the original intent of the EC, beyond talking in platitudes about its being “outmoded” (and stumbling badly or suddenly remembering an appointment when asked to be specific) and the like.

Last summer this author had the privilege of teaching a class on the EC at Camp American. They  will be posting some of the more relevant sections as class samples in the next few days and we will post some of them here to illustrate that while the EC is not perfect it is most certainly superior to the grossly  ill-considered and irrational reaction to the 2000 election outcome that is the National Popular Vote movement.

Federalism And The Electoral College

This entry is part 3 of 5 in the series Federalism, Democracy And Presidential Elections

Voting MachineThe director of the Institute For Principled Policy recently sent me an interesting article from US News And World Report about a sophomore government class being taught at Lloyd Memorial High School in Erlanger KY. It seems the students in the class drafted a bill for the Kentucky State Legislature which would require a change in the way Electoral College votes are awarded from the current winner-take-all system where the winner of the popular vote gets all of the state’s electoral votes, to an apportioned electoral college award, where the electoral vote is awarded according to the winner by congressional district with the winner of the popular vote getting the two votes representing the senatorial votes.

A quick reminder of how the Electoral College votes are distributed is in order. Each state gets a number of electors equal to the number of representatives it is entitled to in Congress plus two representing the Senate representation. The District of Columbia gets one congressional vote plus the two senatorial votes it would have if it were a state. That’s a total of 538 electoral votes with 270 (50% plus one) required for election.

Most states currently award electoral college votes on a winner-take-all basis. Only Nebraska and Maine award electoral votes according to congressional district. Interestingly, the congressional district method was the original intent of the Constitutional Convention and teacher Jon Davis’s students are working to return their state’s presidential election to a condition more closely resembling the original design. As discussed in a previous article, the founders wished to avoid direct democracy as an unstable form of government ultimately leading to anarchy followed inevitably by tyranny. Their intent was to provide a limited representational republican style of government.

But how do we know for sure that the founders wanted to avoid direct national democracy? The answer to that question is implicit in the design of the federal government. First, the federal government had little or no contact with the average citizen, save for the post office. That’s only fitting, since the purpose of the federal government, as designed, was to act as a specific agent of the states. A study of the US Constitution reveals that the federal government is given the authority to act as a limited agency of the states in three specific areas; defense, diplomacy and trade. Unless called into federal service as a state militiaman in time of war, most citizens simply had no need to be in contact with the federal government. Second, the very structure of the federal government, as originally designed, indicates that direct democracy was not part of the framers plan. Of the 2 houses of Congress only the House of Representatives was directly elected. Senators were chosen by state legislatures until the 17th amendment changed the method to a popular election mandate, thus destroying state participation in the federal government. Judges are appointed by the president and approved by the Senate; under the original design of state government representation in the Senate thus ensured that the individual states interests would be protected. And finally, the president was, under the original design, chosen by electors who were themselves chosen at the discretion of the individual states, usually by the state legislature. Thus, of the 3 separate branches of government created by the Constitution, only one-half of one of them was selected by direct election, albeit the most powerful one. In other words only 1/6 of the federal government was democratically elected.

The founders’ vision for the electoral college was for a group of wise men, uncommitted to any party or faction, who would independently vote for whom they believed would be the best possible choice to serve as chief executive. Within 15 years of the first meeting of the electoral college and the unanimous choice of George Washington as the first president the presidential election process was well down the road to domination by the fledgling political parties which arose out of the governmental milieu of Washington’s administration. The bones of contention in that rarified atmosphere were such issues of constitutional interpretation of federal authority, how the economy would be structured and foreign policy, especially regarding the French revolution. The 12th amendment essentially began the process of the institutionalization of special interests, what Madison called “faction” in Federalist No. 10, in the form of party politics. It allowed the running of teams for vice-president and president to ensure “unified government,” a euphemism for one party control. By the election of 1828, only 39 years after Washington’s first non-partisan election, the presidential elections were in the control of political parties at both the state and federal levels. The parties made sure that the federal nature of the presidential election was minimized by changing election laws state by state to adopt what is know as “general ticket” elections, where parties run slates of electors committed to specific teams of candidates for office. In general ticket states all voters statewide vote for the entire slate of committed electors. In states like Maine and Nebraska each congressional district votes for a specific committed elector with the popular vote winner getting the 2 senatorial electors, a far more federal system.

And you might think this author believes the system is broken and in need of repair, as the sophomore government class at Lloyd Memorial High School apparently does. And you’d be right. But it is important to understand that even in its current corrupt condition, the electoral college still works in preserving the federal nature of presidential elections. How? Think about these presidential elections- 2000, 1888, 1876 and 1824. In each of these elections the popular vote winner did not become the president. We’ll ignore the 1876 election since the process was so horribly corrupted both at the state and federal level that it is a complete wash-out in examining the electoral process. In the election of 2000 Albert Gore, Jr. won his support in urban centers by a large margin. George W. Bush won his support in the rural districts, also by a wide margin. The final margin of victory for Bush came down to under 500 votes in Florida. But the real story is that Bush carried several times as many counties as Gore, with fewer popular votes. Bush voters represented, with fewer popular votes, the electorate of a larger portion of the population than did Gore. The counties Bush carried covered more square area of the country by several times, with fewer popular votes. Similarly, in 1888 Grover Cleveland lost the electoral college votes with a higher popular vote margin than Rutherford B. Hayes. Cleveland won in the south by wide margins- 60% or more, but he lost in the north by tiny margins. Southern states at the time were small electoral college totals, so his popular totals looked big, but in fact he got his large overages in regional voting where it made no difference in the electoral college total. In other words, the electoral college did exactly what it was supposed to. It prevented an urban or regional majority from tyrannizing a rural or non-regional minority. It protected the unique properties of federalism in the presidential election process.

So how can presidential elections be restored to the federalist and non-partisan design intent of the founders?  The bill proposed by the sophomore government class is a good start. It would help to reinforce the federal nature of the election if each state awarded electoral college votes on the basis of congressional district. Partisanship could be at least partially removed from elections by running, in each congressional district, at least one non-committed elector. This would be the so-called “none of the above” choice so many have claimed that they want. This proposal could break the stranglehold that the two major parties currently have on presidential politics. If only 10% of the congressional districts chose the non-committed elector, it could throw the presidential choice to the House of Representatives. While some may think this undesirable, it is in fact the original intent of the founders. George Mason, during the debates at the Constitutional Convention said that 19 times out of twenty the choice of president would fall to the legislature under the proposed plan. Most agreed then proceeded to pass the plan. Does anyone believe that Bill Clinton or George W. Bush or a host of other dismal White House residents would have been chosen as the president by the House of Representatives? And what party would spend $100 million on a presidential campaign if there is a good chance of “none of the above” tripping up their groomed and vetted choice for the office? Of course, this is not a perfect solution but it would, probably, tend to increase the caliber of candidate chosen. It would also help remove emotional issues from the front burner in presidential politics and increase discussion of truly pivotal issues.

What do you think? Let us know by commenting or join a discussion on the forum.

It Must Be True, I read It In The LA Times!

This entry is part 2 of 5 in the series Federalism, Democracy And Presidential Elections

One-term George. Who knew?

In a recent article in the Los Angeles Times written by Mary McNamara, the Times television critic. we are informed of a little known fact of history.

According to McNamara

George Washington (David Morse) so quickly tired of the infighting among his Cabinet and vagaries of public opinion that he stepped down from the presidency after a single term. (emphasis added)

Of course this “fact” is utter nonsense. George Washington served two terms from 1789-1797. He was unanimously elected to both terms by the electoral college. Only a few states held popular elections for president in either of these elections. The electoral college delegates were mostly chosen by state legislatures at the time. This was the case because the constitutional architects feared and despised direct democracy at least as much as they feared and despised monarchy. That’s why structures like the electoral college exist and why modern democrats (note small “D”) hate the electoral college.

And it is in this fact that the author displays an even wider gap in her knowledge than just the historical facts surrounding the election and terms of the first two presidents. She demonstrates that she does not understand that the United States was designed by the framers of the Constitution as a limited federal constitutional republic, not a democracy. She says about the HBO series John Adams, about the second President of the United States, the following

“John Adams,” which comes to a close Sunday night, has devoted seven beautifully shot hours to defying the often overly patriotic legends of our past with a toothache-and-all portrait of a man who helped define modern democracy, albeit grumbling every step of the way (emphasis added).

Just to be clear, the writer is referring to the same John Adams who said

Democracy… while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide.

Doesn’t sound like Adams was a big fan of democracy. Neither were most of the constitutional framers and founders of the nation. In fact, the design of the federal government demonstrates that the framers intended to avoid democracy. James Madison, in Federalist #10, for instance wrote

Hence it is that democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and in general have been as short in their lives as they have been violent in their deaths… A republic, by which I mean a government in which a scheme of representation takes place, opens a different prospect and promises the cure for which we are seeking.

The writer’s first mistake, that Washington served only one term, is inexcusable because a 45 second self-check on Google would have given her the correct facts. Also, how did a gaffe like this get past an editor, any editor worth the name? The fact that she is a TV critic speaks volumes, but serves as a very poor excuse.

Her second mistake, that John Adams was one of the architects of “modern democracy,” is inexcusable because it is virtually impossible to find a teacher or college professor who

  1. knows that the framers designed the United States as a republic
  2. understands why the framers feared democracy
  3. knows the difference philosophically between a republic and a democracy
  4. cares about the difference

A very sad commentary on our current educational system, indeed.

Federalism, Democracy and Presidential Elections

This entry is part 1 of 5 in the series Federalism, Democracy And Presidential Elections

Voting MachineOver at a blog this author reads regularly (and recommends, great theology, really cool comic graphics), Frank Turk’s …And His Ministers A Flame Of Fire, Frank has made the following observation

In spite of what some people have already said, the primary system in this country has evolved toward a democratic process and away from the idea that party elites should pick a candidate apart from an electoral process.

It’s interesting in what ways the Clintons want to take our nation back to 1820.

This post prompted me to do a quick review of the class I’m preparing for Camp American on the electoral college. This being an election year and all, I thought this would be a great advanced class for some of our young budding Christian constitutional scholars who already have a working knowledge of the documents. I took notice of two things from Frank’s post.

The first is Frank’s observation that the presidential election process has evolved toward a more democratic process for choosing a president and away from the constitutional republican representational process the founders designed. The second is that the current fight in the Democratic party with the Clinton team’s attempted manipulation of the so-called super-delegates is a throwback to the party structure of 1820. Frank’s a really smart guy and has a pretty good handle on the workings of the current political system but may not know the ins and outs of the original design and evolution of the current system for election of the chief executive. Such is the state of modern constitutional education that most people don’t know the details unless they make a special effort to learn the details.

Well that’s why we do Camp American, and why the Institute For Principled Policy is involved. In order to understand how we got where we are, we have to know where we started. The original design of the framers was for a representative federal republic. We emphasize the word federal because the current understanding of federalism is vastly different than it was in the late 18th century. To keep this from becoming a multi-post series in 500 parts, we’ll stick to the highlights of this issue.

The framers vision of the federal government’s design was built on the idea that the states, which were autonomous republics, delegated certain limited powers to the federal government for three specific purposes; defense, diplomacy, and trade. There are many implications of this structure, but one of the most important to understand that, as Dr. Thomas Woods has eloquently stated, under the system of federalism as it existed until about 1865 the only contact that the majority of citizens had with the federal government was with the post office. Under this system, the federal government was a creation of the states and therefore it was decided at the Constitutional Convention, after lengthy and hard-fought debate with numerous contradictory resolutions and several see-saw attempts at a solution to the problem of election of a president which ranged from popular election to election by state legislatures to election by the federal legislature, that an electoral college would be the method by which a president would be elected. The number of electors for each state is based on the number of senators (2) each state is allotted plus the number of federal representatives allotted to it by the census count. The method each state was to use to choose these electors was left to the states themselves with limited restrictions such as candidates for the office and federal office holders not being electors. The hope of the framers was that each congressional district in each individual state would be represented by an elector from that district who would represent the interests of the district. The two senatorial representatives, it was hoped, would be representatives of the state governments’ interests. It should be noted that this system was designed well before any political parties had been even conceived of.

In its original form, the electoral college in each state was to vote for two candidates from a slate of nominees. The list of nominees was chosen by the consensus of caucuses, usually regional, within the US House of Representatives. The top vote-getter who received a majority (not a plurality) of the electoral votes became the president. The second highest became vice-president. If no candidate got a majority of electoral votes then the top 5 vote-getters were presented to the House of Representatives who were to immediately cast a presidential ballot. If no candidate received a majority of votes then the legislature was to go into caucus by states with each state getting one vote. Voting continued until a president was elected. Growing factionalism and failed conspiratorial intrigue in the elections of 1796 and 1800 complete with an electoral crisis in the 1800 presidential election caused the introduction of the 12th amendment which dropped the number of candidates on the presidential slate if the election went to the House from 5 to 3 candidates and provided for a separate slate of vice-presidential candidates, leading to the current method of choosing a running-mate. Not only was this system not democratic, it was specifically designed to prevent organized majorities from overwhelming the interests of minority populations. One need only read The Federalist to understand that democracy was a form of government the framers feared and avoided.

In the beginning of the republic, most of the states chose presidential electors in their state legislatures. But by the election of 1836 the only state which still held to this method was South Carolina, which did not switch to a popular election of electors until the fateful 1860 election. Political parties did not really exist until after Washington’s first term. They were formed on the basis of several major issues; first, whether or not to get involved in the French Revolution and which faction to support. Second, constitutional interpretation of issues regarding a National Bank and “internal improvements” and presidential authority. Third, the roles of the federal government and the state governments and centralized authority. The Federalists under Hamilton wanted to abandon France, grow presidential authority and diminish the power of the states. The Democratic-Republicans under Jefferson wanted the opposite. What we now call parties were then only what Madison called “factions” because there were only guiding philosophies and no official organizations or platforms until Andrew Jackson and Martin Van Buren hammered together the Democratic Party from their faction of the old Democratic-Republican’s in the 1828 election. The other faction became the Whigs, the Federalists having committed political suicide in 1816 leaving a single party. From the election of 1796 until the election of 1832 candidates for president were chosen by party caucus alone. After a revolt of newer western party members in the election of 1824 where they rejected the party’s nominee in favor of Andrew Jackson, the party convention system was developed. Convention delegates were chosen by party caucuses in the individual states.

This system of presidential nominations, delegates to national conventions chosen in local and state party caucuses, continued relatively unchanged through the 19th century into the so-called Progressive era. In 1910(!) Oregon held the first presidential primary that bound delegates to a specific candidate at the 1912 national party conventions. Interestingly, this humble beginning led to a split in the Republican party in the 1912 election. Former Republican President Theodore Roosevelt was an overwhelming favorite in the tiny number of states with a primary election, but sitting Republican president William Howard Taft held the nomination from the vast majority of delegates chosen in party caucus and because most primaries were non-binding. Really just beauty contests, if you will. Hence, the Bull Moose or more correctly the Progressive Party split from the Republicans with TR at the helm which eventually finished second to Democrat Woodrow Wilson. Taft was a distant third. Interestingly, only a few states adopted the primary system, even after this.

By 1968 only 14 states used the binding primary election or some variation of it. Interestingly 1968 was the last election where a candidate controlled a convention with no primary victories. Hubert Humphrey was the candidate. He won no primaries because he didn’t run in any. Anyone over 50 should clearly remember the events of the summer of 1968 with the Chicago Democratic Convention. Thus, the founders’ fear of direct democracy was born out and we were treated to both a revolutionary vanguard and a police riot over a brokered political convention. Perfect direct democracy leading to anarchy, just as Madison feared. The spirit of a constitutionally limited representationally elected republican (note small “R”) chief executive, elected to serve in a federal government which was constrained from interference in the lives of the individual, gradually became weaker and sicker throughout the 19th century, became comatose in the Progressive era and died in the summer of 1968.

After 1968 the number of primaries exploded, most states using some form of the binding primary. In the spirit of “democracy,” slowly but surely, discontent has grown with the idea that small rural states like Iowa and New Hampshire can set the electoral tone of the whole primary race for the whole country. Several states have worked to develop schemes to have their own states be in the first tier, some scheming to knock New Hampshire out as the earliest primary, a position most are surprised to learn it has held only since 1952. Now, after the Michigan and Florida debacles of this election cycle, the parties are clamoring for some kind of federal fix of the primary system, a power they do not constitutionally possess. Remember that the original republican design was for the states to choose how the chief executive was to be elected.

Now we are beginning to see, with the current cycle especially, the compression of the time available to make a choice for who should be the President. As this trend grows, candidates spend more and more money on media, consultants and staff, talk in shorter and shorter sound bytes, designed by advisers to have the highest positive emotional impact on subjects that the media has been working for months or years to create a particular kind of popular “buzz.” Candidate sound bytes need not necessarily contain any real intellectual content, nor does it necessarily need to cohere with the candidates stated policy positions. No need to contact the brain if the heart can be touched properly. Candidates who are the best media manipulators in appealing to their target audiences, end up in the lead. Those who have the resources dig for dirt on their opponents, knowing that the popular wind can shift in an instant if the right kind of scandal can be found and the media gatekeepers allow its use.

So, I think I can safely conclude that Frank’s timetable is off somewhat. The Clintons are not trying to revisit the politics of 1820, where the republican spirit was still quite alive, though it had caught a chill and the first signs of fever had set in, but back to the halcyon days of 1968, when a candidate didn’t have to win primaries to get a party’s nomination, but could manipulate the masses with blatant emotional appeals to the progressive dream of forcible redistribution of wealth in a completely egalitarian utopia in attempting to grab their party’s nomination. In other words, they’re trying to be the best possible democrats (note small “D”).

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