The Missing Amendment

By Cyberquill 01/06/201211 Comments

Americans love their bread and circuses. The presidential election hullabaloo is in full swing, and it verges on the intolerable, as it does for almost two out of every for years. (If I see or hear the word “poll” one more time, I think I’ll have a seizure—high time to stock up on anticonvulsants, for election day is still quite a ways off.)

Here’s a curious excerpt from President Andrew Jackson’s Third Annual Message, delivered on 6 December 1831:

I have heretofore recommended amendments of the Federal Constitution giving the election of President and Vice-President to the people and limiting the service of the former to a single term. So important do I consider these changes in our fundamental law that I can not, in accordance with my sense of duty, omit to press them upon the consideration of a new Congress.

Old Hickory’s proposed amendments then proceeded to wither on the congressional vine. Only more than a century later, in 1951, on the heels of FDR’s seemingly interminable tenure in the White House, the 22nd Amendment was passed, which did slap a limit on the number of terms a president could serve.

But what ever came of the idea of giving the election of president to the people?

Apparently, the people didn’t have it in 1831—President Jackson would hardly have considered it “fundamental” to give to the people what they already had.

Leafing through my copy of the U.S. Constitution, it seems that nothing has come of it so far—or do you see an amendment in yours that sets forth a popular election for president? Then how come we have one anyway?

Switching branches for the purpose of illustration, Article I, Section 3 of the Constitution opens thus:

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six years; …

This was changed by the 17th Amendment in 1913:

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; …

So originally, the Constitution decreed that U.S. senators be elected by the legislatures of their respective states. For whatever reason, this method was adjudged undesirable down the road, wherefore a constitutional amendment was passed which said that henceforth federal senators were to be elected directly by the people of their respective states rather than indirectly through their legislatures.

Fine. No problem. That’s precisely why Article V of the Constitution provides a nifty safeguard against being governed by the “dead hand of the past,” namely a procedure for making alterations to the document should one or the other of its provisions be deemed to have outlived its time and require modification so as to reflect the needs and desires of an ever-evolving society.

Although the manner of electing senators was modified properly via amendment, there exists no such amendment to modify the manner in which the president is to be elected, i.e., no amendment which says that henceforth the president shall be elected by the people of each state rather than “a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress” and appointed by each state “in such Manner as the Legislature thereof may direct,” as the Constitution does prescribe in the absence of an amendment that would override the existing provision.

Sure, those electors still exist and their “electoral votes” ultimately determine the winner, but let’s face it: what happens quadrennially on the first Tuesday in November, while technically constitutional, is nothing but a bald-faced yet widely accepted circumnavigation of what the Drafters clearly meant when they devised the process for electing the president:

The mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents. […] 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. [Federalist 68]

If Messrs Hamilton and Madison rose from their graves and witnessed the mighty communal convulsions preceding a modern presidential election, which solely focuses on the choice of one who is to be the final object of the public wishes and to hell with that intermediate body of electors, they’d suffer seizures, too. Welcome to the club!

What does the term “elector” imply? Obviously, an elector is someone who elects, because that’s what the word means. Electors are individuals who are supposed to evaluate the various candidates and make a decision as to who, in their best judgement, is best suited for office.

Indeed, the whole point of having electors is so the general public does not vote for president.

Let me say this again:

The whole point of having electors is so the general public does not vote for president.

Yet what has taken root is a system where the people vote anyway, and then these so-called electors, like a grand conclave of Manchurian candidates being shown a Queen of Diamonds and told who to vote for, mindlessly cast perfunctory ballots that reflect the will of the people in their states.

Well, you don’t need electors for that, with all due respect. All you need is points: whoever wins the popular vote in a state gets a number of points equal to the total numbers of senators and representatives that state is entitled to in Washington.

Therefore, the simple fact that the Constitution says “electors” rather then “points” proves that modern presidential elections are being conducted in arrant derogation of what the supreme law of the land ordains.

Of course, strictly speaking, Article II doesn’t spell out the criteria based upon which these “electors” are to cast their votes—it would be just as constitutional for them to pull names out of a tricorn or to vote for the candidate whose headshot prompts Punxsutawney Phil to emerge from his hole as it is for them to vote for whomever the general public wants—but for them to refrain from exercising their own personal judgment—that is, to refrain from doing any genuine electing–so utterly defeats at least one of the two primary purposes of the Electoral College (the other being to achieve somewhat of a leveling of the playing field between densely populated states and sparsely populated ones) that it amounts to an all-out mockery of the process.

In conceiving this nation, a compromise was sought between, on one end of the spectrum, a system where the general population had little or no say in government, and untrammeled direct democracy (“the inmates running the asylum”) on the other. Concerns regarding the latter arose from examinations of previous experiments with full-scale democracy that had all gone terribly awry on account of that pesky scourge called human nature.

In the words of James Madison:

In all very numerous assemblies, of whatever characters composed, passion never fails to wrest the sceptre from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob. [Federalist 55]

With this in mind, the original version of the Constitution, as ratified in 1788, established that the people were to vote for the members of the House of Representatives, and that was it. In other words, exactly half of one of the three branches of government was subject to a direct popular vote, just enough to give the people a potent voice in government—the House of Representatives being the larger chamber of Congress by far and thus, arguably, the most powerful part of the federal government—but not enough to risk the kind of pandemonium that invariably ensues when the majority runs too much of the show.

Then, in 1913, the aforementioned 17th Amendment established a popular vote for the members of the Senate as well. Now the entire first branch was subject to popular vote, not merely half of it.

In addition, via some sort of extra-constitutional mechanism general consensus that bypassed the conventional amendment process, the people have come to de facto elect the second branch as well. Doing the math, this works out to a full two thirds of our government being now directly elected by one very numerous assembly, namely the American public.

So the United States has gone from 16.6% of government directly elected by the people—as envisioned by the Founders—to 66.6% of government directly elected by the people, a whopping quadrupling of direct democracy in the United States in less than two centuries.

And if enough weren’t enough, anytime a controversial Supreme Court ruling comes down the pike, some among those who disagree with it have the nerve to complain about this panel of unelected judges—emphasis on unelected—as if suggesting that, in a perfect world, the nine justices on the Court should be installed by popular vote as well, and then James Madison’s nightmare of all powers being concentrated in one hand would have come full circle:

The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny. Federalist 47

Obviously, if the majority controls everything, the two pillars of the American system—checks and balances and separation of powers—have fallen by the wayside, for who or what is then supposed to provide checks and balances against the majority? The majority, being only one power, can hardly separate itself.

Citing California as the poster child for a place gone to seed in consequence of the inmates having gradually taken over the asylum, in his chilling piece The Perils of extreme democracy, Andreas Kluth of The Economist argues that “direct democracy must revert to being a safety valve, not the engine.”

With the people now in charge of a full two out of three branches of government, even on a national level the line between the safety valve and the engine has waxed a tad blurry, to put it mildly. Yet the exponential expansion of direct democracy beyond its original mandate aside—the good old frog-boiling analogy comes to mind—what’s particularly disturbing about our popular election for president is the manner in which the practice came about: it just sort of “happened,” and no one seems to be going “hey, wait a minute,” even though the most cursory scanning over the relevant sections in the Constitution evinces a glaring failure of fit between this practice and the—still unamended—text.

As per the plain wording of this nation’s founding charter, the people clearly aren’t supposed to vote for president. For this reason, until the missing amendment has been added, I, for one, shall respectfully boycott U.S. presidential elections.

Voting for president isn’t our duty as citizens. It’s an act of aiding and abetting in the perversion of our system.

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  • http://andreaskluth.org/ Andreas

    Well, since you’ve cited me as an apparent authority in these matters, I feel obliged to comment. And yet, I find myself in a position you and I are not accustomed to: We seem to agree.

    This is obviously a faux pas. Won’t happen again. Sorry.

    (Oh, but let’s talk about grandiloquent phrases: “arrant derogation”? ;)0

    • http://blog.cyberquill.com Cyberquill

      Grandiloquent? At least it’s English, not la-di-da French à  la “faux pas.” And to me, it sounds more like a phrase right out of an Eminem lyric (♫ And in arrant derogation of the bitch laws of this nation / I will strengthen my virility with concupiscibility…).

      By the way, for all who fancy understated tones of signal orange and share a passion for the Alps and for elephants, Andreas has a new book out,  just released yesterday, titled Hannibal and Me: What History’s Greatest Military Strategist Can Teach Us About Success and Failure

      (I’ve started reading it, and I won’t put it down until I learn why Amy Tan’s drawing didn’t get pinned up in the principal’s office. So far, all I know is that it didn’t. No doubt, a later chapter will contain the solution to the mystery.)

      • http://andreaskluth.org/ Andreas

        Will you be livid if you finish the book NOT knowing why Amy Tan’s drawing didn’t get pinned up?

        • http://blog.cyberquill.com Cyberquill

          Yes. Livid like Flaminius racing after Hannibal, determined to charge into him as soon as he caught up.

          • http://andreaskluth.org/ Andreas

            I like, like, like the way you scold me nowadays. Only good readers insult me this way. Keep going, and get yourself a following….

            😉

            • http://blog.cyberquill.com Cyberquill

              And having gotten myself a following, what shall I do next? Conquer the World Wide Web? And then what? (I can’t shut up my inner Cineas. Sorry.)

      • http://andreaskluth.org/ Andreas

        Will you be livid if you finish the book NOT knowing why Amy Tan’s drawing didn’t get pinned up?

  • Testazyk

    But it works so well on American Idol!

    • http://blog.cyberquill.com Cyberquill

      Yeah, but the question is whether the voting system on American Idol complies with Fox’s founding charter. 

  • Emerson Henrique

    If in the United States the bread and circus are the next election there, in Brazil are the Carnival here. We have until enclosure for bullfighting, but what we eat it is not bread… I wrote on this in mine blog, but in Portuguese, the translating Google aid in this part!

    http://asabiaignorancia.blogspot.com/

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