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« Morale Still Low At NASA | Main | More On Democracy »

Don't Know Much About History

I'm not a constitutional law professor, and I don't even play one on the internet, but you'd think that real lawyers, who are supposed to have studied the Constitution, and read the Federalist papers and stuff, would know better.

We've made a similar argument about the electoral college: if it's so great, why is it the case that not a single state copies it for the governor's election, nor does a single other major world democracy use it to pick its president?

I know, they say there are no such things as dumb questions. Considering that these are supposed to be trained attorneys, let's use this as the exception to make the rule. Anyway, I don't think that the rule applies to rhetorical questions, which this is clearly intended to be.

There are two constitutional fallacies here. The first is that a state is just a "mini-me" of the federal government. It is not.

It doesn't strike coins. It doesn't raise armies. It doesn't declare and wage war. If it does any of these things, it is put down, brutally, as we saw a hundred forty years ago. To compare the election of a governor to that of a president is to betray a fundamental ignorance of the nature of the federal system.

But even if this were a valid comparison, just how would they propose implementing an electoral college at the state level? There is no entity in a state that fits the following analogy question on an SAT (or, dare I say, LSAT?):

The Federal government is to a state as a state is to a...?

Counties don't work, because they don't have representatives to the state government. State senatorial or assembly districts don't work, because they don't have governments. Sorry, guys, but this just isn't one of those recursive things where you can go all the way down to the fleas on fleas ad infinitum. The US federal government is unique, and that part of your question is...dumb.

Second, the question implies, by its use of the word "other," that the US is a "major world democracy." Despite the popular usage of the term, it is, simply, not. If these guys had not been cutting class the day they studied the history of the Constitution, they would know that.

Franklin said it best when, walking out of the Constitutional Convention, he was accosted by a woman who asked, "Mr. Franklin, what have you given us?"

He replied, "A Republic, madam, if you can keep it."

If these lawyers are in any way representative of the legal training in this country, Mr. Franklin's fears would seem to be well justified.

[Update on Friday morning]

One more thought. Even if we were a "major world democracy," the argument remains fallacious. It's a form of the argumentum ad majoritarium, better known as the bandwagon argument. In politics, it takes the form, "Vote for me. Everyone else is, especially all the hip, cool people. You don't want to be...different, do you?"

It's a very persuasive (albeit flawed) argument, to those susceptible to fashion and peer pressure.

And of course it's a favorite with transnationalist types, who use it to fight capital punishment, or promote Kyoto or universal health care, or generally try to increase the level of socialism here.

"We're so backwards. We're the only major world democracy that does or doesn't do X, Y or Z."

It's one of their classic fallbacks, after you've pointed out the flaws in X, Y or Z. And as we've seen on campus, these folks are much more susceptible to peer pressure themselves, rather than logical argumentation, which they often don't even allow.

And of course, it's one we used to try on our parents all the time.

"But mooooommm! All the other cool major world democracies are doing it! Why can't we?"

And if she was a good mom, you remember her response.

"Now honey, if all the other major world democracies were going to jump off a cliff, or dither about taking out psychopathic homicidal nuclear-weapons-seeking maniacs in the Middle East, or directly elect their presidents, would you do it, too?"

"Just because those other countries have leaders who don't care about you as much as we do doesn't mean that you can do any silly thing they take into their heads. No, in this house we follow the rules. They're written down, right here, in this Constitution."

[Further update]

Anglospherian Jim Bennett makes some further refinements in the comment section that are worth putting up here, just to elaborate further on these guys' apparent lack of knowledge of not just our own government, but of all the other ones that they seem to admire as well.

Well, actually states do raise armies, but it is true that most of the other characteristics of a sovereign state were folded into Federal sovereignty. Rea raised the critical point, which is that states do not have a "federal nature"; if they had, the Supremes would have let them keep county representation in state Senates. (Even there, there's some wiggle room. Nothing in the Constitution prevents states from creating a federal structure; if they did, then they might indeed choose to use an electoral college to pick their governor, to help preserve equitability among the constituent regions.)

As to the "other major democracies" argument, there are two points worth raising. One is that actually, many major democracies do use an electoral college approach -- it's called the parliamentary system. In the UK, for example, it's the majority of parliamentary constituencies that choose the Prime Minister, not a majority of the voters, and sometimes they pick the candidate with fewer votes, as they did in the early Seventies. You can view the electoral college as a special-purpose Parliament with only two functions, to pick the President and the Vice- President; or you can view parliaments as general-purpose Electoral Colleges.

The second point is that whether the US is a democracy depends on your definition of democracy; in the common sense of the word, of course it is one. Technically speaking, it is not a pure representative democracy. Of course, technically speaking, you could argue that it isn't a republic either -- it's not described as such anywhere in the Constitution. It's a federal union of states with republican governments. A state could arguably enter the Union with a non-republican government merely by permitting the exception in the treaty of accession, (since treaties are co-equal to the Constitution) and this would not particularly change the character of the Union.

[One more update at 8:30 AM PDT]

Just to preempt any further diversions, I'd like to point out that, in the comments section, amidst a lot of spurious chaff about Rush Limbaugh, Ann Coulter, and comparing Glenn Reynolds to a cyber-madrassa, Don Williams accuses me of not putting up a good argument for the electoral college.

He might as well accuse me of not putting up a good argument for going from the present BCS to a college playoff system. It would be equally orthogonal to the point of this post, which was not about whether or not the electoral college is a Good Thing, but about the fact that certain people are attacking it with fallacious and misinformed arguments.

Debating the merits of the electoral college will have to wait for another day, when I have more time and gumption for it. It's possible to agree that, in fact, we should get rid of the electoral college, and still think that the argument cited above is dumb.

[Via Instantman and Geitner Simmons.]

Posted by Rand Simberg at August 29, 2002 09:27 PM

Comments

Rand, there is no such thing as a dumb question. Only dumb people asking questions. It is nice to see that admissions at law schools are obviously not as exclusive as they once were.

Posted by Joe at August 30, 2002 06:32 AM

Your point about states and counties was made back 30-40 years ago or so by the Supreme Court in the "one person, one vote" cases--The SCOTUS ruled unconstitutional then-not-uncommon state schemes under which the state senate would be elected by counties rather than according to population.

Posted by rea at August 30, 2002 06:37 AM

The closest thing to a correct answer to your SAT (or is it the GRE that tests by analogy?) is an electorate. The states formed the federal government and agreed to be governed by it for specific, limited purposes. Each state, while acquiring many aspects of sovereignty, likewise governs is constituents.

Posted by Jim at August 30, 2002 07:08 AM

Well, actually states do raise armies, but it is true that most of the other characteristics of a soveriegn state were folded into Federal soveriegnty. Rea raised the critical point, which is that states do not have a "federal nature"; if they had, the Supremes would have let them kep county representation in state Senates. (Even there, there's some wiggle room. Nothing in the Constitution prevents states from creating a federal structure; if they did, then they might indeed choose to use an electoral college to pick their governor, to help preserve equitability abong the constituent regions.)

AS to the "other major democracies" argument, there are two points worth raising. One is that actually, many major democracies do use an electoral college approach -- it's called the parliamentary system. In the UK, for example, it's the majority of parliamentary constituencies that choose the Prime Minister, not a majority of the voters, and sometimes they pick the candidate with fewer votes, as they did in the early Seventies. You can view the electoral college as a special-purpose Parliament with only two functions, to pick the President and the Vice-President; or you can view parliaments as general-purpose Electoral Colleges. The second point is that whether the US is a democracy depends on your definition of democracy; in the common sense of the word, of course it is one. Technically speaking, it is not a pure representative democracy. Of course, technically speaking, you could argue that it isn't a republic either -- it's not described as such anywhere in the Constitution. It's a federal union of states with republican governments. A state could arguably enter the Union with a non-republican government merely by permitting the exception in the treaty of accession, (since treaties are co-equal to the Constitution) and this would not particularly change the character of the Union.

Posted by Jim Bennett at August 30, 2002 07:37 AM

The above article shows one of the shortfalls of the blogsphere; i.e., it allows a people to delude themselves that mindless invective is the same as intelligent thought.

But given that Ann Coulter and Rush Limbaugh are their exemplars, who can be surprised?

The above article does nothing to address the primary issue -- whether the electoral college should be kept or replaced with the tabulated vote. Mr Simberg never gets around to explaining why he thinks the electoral college is suited for the federal system --but then defending a policy is much more demanding than simply slinging slurs at a person who's not present to defend himself-- isn't it?

I wonder if Mr Simberg knows the origin of the electoral college?? That it was set up because Alexander Hamilton and the Federalists thought the country "should be run by the people who own it" and wanted to block the power of the common people. The electoral college had the advantage that one could always bribe a few electors if need be. Charles Beard, in "An Economic Interpretation of the Constitution of the United States" explained how the Constitution was basically set up to protect the property interests of the wealthy few from the commoners --i.e., from those low-bred people who fight this nation's wars and who labor to produce this nation's wealth.

Like Limbaugh and Coulter, the Federalists were whores for the Rich. Fortunately for the future of the USA, Thomas Jefferson and James Madison formed the Democratic-Republican Party, destroyed the Federalists in the 1800 election, and Aaron Burr blew a hole in Hamilton sometime around 1805. Those who defend the Electoral College probably think we should go back to having Senators chosen by the state legislatures instead of being elected by the voters.

It is curious that Glenn Reynolds would link to this article from Instapundit. In the past, Glenn Reynolds has seemed relieved that Akhil Amar's work provided some intellectual respectability for Reynold's Second Amendment theories -- such support from Amar was particularly helpful after Garry Wills heaped heavy ridicule on Glenn's writing in the infamous September 1995 New York Review of Books. (See http://www.potomac-inc.org/garwills.html)

In closing, I suggest that Mr Simberg' time would have been better spent exposing the lie put out by Al Gore's supporters --that the Supreme Court gave the election to Bush. In reality, Gore's goose was cooked when he failed to meet the deadline for completing the recount.

Even if a subsequent recount had showed that Gore won in Florida, he would still have lost the election.

By federal law (US Code), results after the deadline would have been submitted with the first set of electoral votes --certified by Governor Jeb Bush. The subsequent process is precise and legally well-defined in the US Code. When a state gives two different election results, Congress decides which tally is to be accepted. The Republican House would have taken the first tally -- favoring George Bush. Even if Gore somehow got the Senate to accept a second tally which favored him (by casting the tie-breaking vote as VP?), the Congress would have deadlocked. In such a case, the Constitution says that Congress must accept the vote submitted by the state's Executive --Governor Jeb Bush.

As one who agrees with Glenn and Amar re the Second Amendment, I think it is unfortunate that Glenn is turning Instapundit into a mindless propaganda machine that greatly resembles those Islamic schools he so frequently criticizes.

Posted by Don Williams at August 30, 2002 08:05 AM

Amidst all your irrelevant invective about "Limbaugh and Coulter," you seem to be criticizing me for making a post about the subject that I chose, rather than the subject that you want me to discuss.

Whether the electoral college should be replaced or not is a separate issue from the point of this post, which is that if you believe that, you should make good arguments for it, rather than silly and fallacious ones.

And your comparison of Instapundit to a madrassa is simply ridiculous.

No, we are not "mind-numbed robots."

Posted by Rand Simberg at August 30, 2002 08:11 AM

Re Jim's comment that "A state could arguably enter the Union with a non-republican government merely by permitting the exception in the treaty of accession, (since treaties are co-equal to the Constitution)..."

I think this is wrong. Article IV, Section 4 explicitly states "The United States shall guarantee to every State in this Union a Republican Form of Government." Plus the 14th Amendment forces State governments to recognize the Bill of Rights for all US citizens. (Prior to the 14th, the Bill of Rights were binding only on COngress, not on the State Governments.)

Posted by Don Williams at August 30, 2002 08:12 AM

I don't think it's ever been resolved fully to what extent a treaty provision can negate a constitutional requirement. That's why I said "arguably". I don't think the answer is a slam-dunk either way.

Posted by Jim Bennett at August 30, 2002 09:00 AM

Don Williams: Are you suggesting that because I agree (partially) with Amar on the Second Amendment I'm not allowed to disagree with him on other issues? That seems rather odd, as is the term "cyber-Madrassa." Neither, of course, demonstrates any actual error in anything that I said.

As for Garry Wills' ridicule, well, considering that he heaped praise on Michael Bellesiles' "Arming America," his remarks don't disturb me. Scot Powe took his analysis apart in the William & Mary Law Review, concluding that though we are supposed to remember that it is a Constitution we are interpreting, "Wills forgot."

I hope this isn't the Don Williams who writes a column in my local paper. That Don Williams seems a lot smarter than this one.

Posted by Glenn Reynolds at August 30, 2002 09:04 AM

Actually, Glenn, to be fair to Don, "cyber-madrassa" was my term, but it seems a reasonable encapsulation of his accusation.

Posted by Rand Simberg at August 30, 2002 09:15 AM

Actually, this is the Don Williams that heaped criticism on Bellesiles' Arming America for several months (Feb-Aug) over on the Historian's email list called H-OIEAHC -- see http://h-net.msu.edu/cgi-bin/logbrowse.pl?trx=lm&list=h-oieahc and look for posts by vze2t297@verizon.net.
I think it is more effective to criticize Bellesiles on the facts rather than ad hominem. Although my efforts are nothing compared to the work of Clayton Cramer and Prof Lindgren.

I didn't see you "disagreeing" with Akhil Amar -- I saw you printing some snide and unjustified comments about him. Liberals can be debated on the facts -- it only makes you look bad to seize on a trival point and rant about it in order to duck the primary issue.

Posted by Don Williams at August 30, 2002 09:18 AM

Mr. Williams, the Constitution is full of provisions that "block the power of the people." A republic by its nature strips some power from the people. Only a pure democracy would grant citizens the full "power" to participate in government. The Constitution is also known a counter majoritarian document, i.e. the Bill of Rights. So no matter how bad the majority of people want something sometimes under the Constitution they just can't have it (ex.-can't establish the Federal Church of God)!!! I was not convinced about the continued propriety of the electoral college system, but since you pointed out that all supporters of the electoral college are simply cronies of Limbagh and Coulter and "whores to the rich" it must go! I suppose that belittling your opponets by calling them names and saying their ideas are "mindless propoganda" is your idea of "intelligent thought" proper for the blogosphere.

Posted by Robert Cecrle at August 30, 2002 09:20 AM

I wish Don Williams would leave aside his own casting of invective and partially ad hominem arguments and pursue his points about the Constitution. I totally agree with Rand that Williams is castigating him for not addressing the point that he (Williams) wished he had. However, since this thread has started . . . Let me add that repealing the Amendment and having Senators appointed by the state Legislatures does not appear to me to guarantee any worse Senators (as a group) than we have now. In fact, as I remember my history, Senators were frequently selected from among the House Reps of the state, having proven their abilities to the state politicians. Sure, you still get some losers, but we've got some losers now. At the very least appointed Senators would be more attuned to the perceived needs of the state and less to raw political maneuvering and positing themselves for Presidential runs, no?
Appointment is also no less republican than simple direct voting.

Posted by JorgXMcKie at August 30, 2002 09:56 AM

Another thing to remember about our federal system is that the states have an existence independent of (and in 13 cases, prior to that of) the federal government. If the federal government were to cease to exist tomorrow (for whatever reason), the 50 states would continue on as independent little countries. Not a desirable thing, maybe, but true enough.

As for the Civil War, you can argue about the legitimacy of the conventions of secession (and they are a little dubious) but the fact remains that nothing in the federal Constitution to this day prohibits a state from leaving the Union. And 11 states did leave the Union in 1860-61. So was Lincoln's war one to preserve a Union that no longer existed? Or one of foreign conquest, albeit one provoked by the Confederacy at Fort Sumter? I realize it's a moot point-- the war was over long ago, but it does hold lessons about the relationship between the states and the federal government and the tendency of central governments to get too big for their britches.

(In case you're wondering, I'm not a Southerner. I'm a damn Yankee, kinda sorta.)

Hale
A Libertarian Party member intermittently since 1988....

Posted by Hale Adams at August 30, 2002 10:47 AM

Actually, in more than thirteen cases (e.g., Texas, California, Hawaii).

Posted by Rand Simberg at August 30, 2002 10:50 AM

Aw, heck. I was waiting for someone to trot out a
defense of the "divine right of kings" -- after all, a monarch "would be more attuned to the perceived needs of the state and less to raw political maneuvering and positing themselves for Presidential runs", wouldn't he? Hamilton, in fact, proposed a "President for Life" at the 1787 Constitutional Convention, arguing that the British government was the "best in the world".

Do all of you realize that the Constitution says Presidental electors are chosen in a manner prescribed by the state legislatures?? That is , a state legislature could,if it wished, simply appoint the Presidential electors instead of putting the choice to a popular vote.

Re Instapundit and the Islamic schools, my understanding is that the Islamic schools engage in relentless denunciations of non-believers all day long --with little time spend on examination of facts or multiple viewpoints. The difference between them and Instapundit is...?

While I agree with Glenn on a number of things, I think he risks becoming a parody of the politically correct academic liberals he sometimes criticizes. I'm disappointed --the promise of the blogosphere was not just that everyone could have a printing press but that the blogs would really chew on the issues -- and would not develop the smug, one-sided, and ignorant self-satisfaction of the New York Times.

Posted by Don Williams at August 30, 2002 11:33 AM

Eleven at first.....

Today is the anniversary of the Federal occupation of Missouri, which sent the elected State Government into exile. Said duly elected people had voted to belatedly join the secession;
their puppet replacments chose to free the slaves, but were countermanded by Mr. Lincoln.
Grant had not yet shown him the merits of Blacks with Rifles.

Posted by Hrafn at August 30, 2002 11:42 AM

Horrors! The legislature could *appoint* electors?

Ummm...yes, Don, we do realize that.

We even realize that, if they so choose, they could do it with a coin flip, or a bingo game, or playoff wrestling match or even fight to the death, with weapons of their own choosing, between the candidates' electors. But since we (or at least I) are not debating the merits of the electoral college today, I still fail to see how your post relates to mine.

Posted by Rand Simberg at August 30, 2002 11:52 AM

Don, I looked you better when you were singing "Tulsa Time."

Posted by Kevin McGehee at August 30, 2002 12:00 PM

I was very fortunate that this letter of mine was published in the Wall St Journal (on election day 2000!):

As Al Hunt points out in "The Electoral College: Legitimate but Anachronistic" (Politics & People, Oct. 26), the Electoral College system only makes a real difference in extremely close elections. But he fails to note its real importance in such circumstances: the Electoral College prevents massive vote fraud, maintains the legitimacy of the elected President, and even prevents wars of succession.

Under the current system, a state, no matter how corrupt and powerful its political machine, can do no more than swing its own electoral votes to the candidate backed by that state's dominant faction. But under a popular vote system, all state governments would have strong incentives to add more and more votes to their favored candidates, up to and perhaps surpassing 100% voter turnouts. And if, say, a Texas were perceived as showing dubious majorities for a Bush, then states and cities run by Democrats would feel fully justified in finding extra Gore votes. The process would make the 1960 election seem squeaky-clean in comparison, as Chicago's votes, no matter how inflated, could only swing one state. With all 50 states getting in on the vote-recounting act, the outcome could be unknown indefinitely.

The risks might seem low, especially in these good times and with centrist candidates, but in an election in more troubled times, or with more divergent candidates, or more regional factionalism, a race to the bottom of vote-counting corruption could lead to a President-elect who is seen as completely illegitimate, or even forcefully rejected, by much of the country. That downside is far more dangerous than the current prospect of a President who wins office under clearly defined rules despite achieving slightly less than a plurality of the vote.

Posted by David Pittelli at August 30, 2002 05:21 PM

"Do all of you realize that the Constitution says Presidental electors are chosen in a manner prescribed by the state legislatures?? That is , a state legislature could,if it wished, simply appoint the Presidential electors instead of putting the choice to a popular vote."

This happened in Colorado in 1876.

But guess what? The state legislature is elected, and whether they prescribe an election or a round of Russian roulette is moot constitutionally and politically. The next election would either show the legislators the error of their ways or ratify their choice.

(Actually, the two outcomes above are not necessarily the only ones. It's complex.)

Rand -- don't forget Vermont.

Jim -- I'm dubious that Britain could enter the federal Union (say) without giving up the Queen, "treaty" or no. After all -- a treaty is made between two sovereign states, and once Britain became fifty-one, it would cease to be a sovereign state, leaving the treaty moot (no, there's no legal precedent to cite, 'cause the states haven't been sovereign since, oh, the invention of the railroad and telegraph -- and the war bet. the states).

Posted by Paul Musgrave at August 31, 2002 12:56 AM

"Treaties as I understand the Constitution are made supreme over the constitutions and laws of the particular States, and, like a subsequent law of the U.S., over pre-existing laws of the U.S. provided however that the Treaty be within the prerogative of making Treaties, which no doubt has certain limits."

James Madison to Edmund Pendleton
2 Jan. 1791 Papers 13:342--44 ( http://press-pubs.uchicago.edu/founders/documents/a6_2s20.html )

That is, treaties are equal to laws*, not the Constitution; if they were equal to the Constitution, how could there be any limits to them (other than those specified for amendments in Article V)?

*Not superior -- they're only mentioned as only superceding pre-existing Federal laws like any new Federal law, not future Federal laws.

Posted by Steve at August 31, 2002 02:47 AM

Don Williams would do himself a favor by learning how to frame arguments. Firstly, go here and get your overt and completely unwarranted rudeness in check.

Posted by addison at August 31, 2002 03:29 PM

Okay, that link didn't work:

http://www.earlham.edu/~peters/writing/rudeness.htm

Posted by addison at August 31, 2002 03:30 PM

"Debating the merits of the electoral college will have to wait for another day, when I have more time and gumption for it. It's possible to agree that, in fact, we should get rid of the electoral college, and still think that the argument cited above is dumb."

Why wait:

www.cognocentric.blogspot.com

Hint: I LIKE the electoral college

Posted by Carey Gage at September 2, 2002 05:31 PM


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