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.]