December 19, 2016

"Those who imagine that democracy is a simple thing (one-person, one-vote!) are mistaken; democracy, according to Bickel, is a 'mystery.'"

Bickel is the lawprof Alexander Bickel, who published a book — "Déjà vu: Reform and Continuity; The Electoral College, the Convention, and the Party System" — in 1971 that I wrote about shortly after the hotly contested, mind-bending election in 2000:
The electoral college is not “readily understandable,” but it has proven itself marvelously effective and adaptable. Bickel perceived Congress as biased toward the “rural, nativist, and Protestant,” and therefore warranting the counterbalance by a President whom the electoral college has compelled to appeal to urban minorities. Despite its favoritism for the large state and its well-defined urban subgroups, the electoral college serendipitously satisfies the rural and small-town residents of the small states: they feed on the “symbolic value” created by the electoral college’s recognition of the individual states. “It happens that the electoral college can satisfy, at once, the symbolic aspirations of the small states, and the present, practical needs of the large ones. Not many institutions work out as artistically as that.” Presumably, the citizens of large states do not suffer from the negative symbolism of the constant two; perhaps their urban savvy enables them to see real advantage, while the rubes are placated by symbolism....

Bickel conceded that demographic change will inevitably take place, but trusted the system to “digest” any change and turn it once again to the good. Bickel’s constitutional system is a living organism, growing, adapting to change, and, apparently, possessed of a digestive tract. How much easier it is to trust the continued evolution of a living system that has adapted in the past than to look toward an untried reform, designed according to the reformers’ naïve reliance on abstract principle!

Why is it not the case, one might ask, that the large states and the urban minority groups, whom Bickel wanted to empower, would benefit at least as much from the direct vote plan? One imagines candidates motivated to pursue as many votes as they can get, regardless of geographic distribution, as efficiently as possible. Would they not gravitate to the densely populated urban areas and make proposals aimed at the well-organized and well-defined demographic groups? As Bickel asserted, the direct vote system would lead candidates to run national campaigns, ignoring the local urban concerns that are so important in the electoral college system. Bickel did not credit the direct vote proponents with practical sense: to him, they are fools, “mesmerized” by the one-person, one-vote slogan.... Instead of valuing the counterbalancing presidential role the electoral college promotes, reformers dreamed up the absurd idea that they ought to “amend the Constitution to make it mean what the Supreme Court has said it means.”
That last quote chimes with a column in the L.A. Times that many of us were reading over the weekend, in which lawprof Kenneth Jost goes so far as to assert that the Supreme Court could actually find the Electoral College unconstitutional because it fails to comport with the one-person-one-vote interpretation of the Equal Protection Clause of the 14th Amendment (which doesn't apply to the federal government, a fine point that can be taken seriously or brushed off, depending on what you want to see happen). Jost writes:
The electoral college is enshrined in the Constitution, but that doesn’t necessarily make it constitutional. 
Well, yeah, it does, but let's continue:
The framers “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” Justice Anthony M. Kennedy wrote in nullifying anti-sodomy laws in Lawrence vs. Texas. “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” 
Lawrence v. Texas is an interpretation of the Due Process Clause which contains the word "liberty," and Kennedy was talking about looking for the meaning of "liberty" and seeing the abstract concept as something that can be understood differently at different times. There's no complicated search for the meaning of the Electoral College. The Constitution delineates it in explicit, concrete terms. There's no interpretation of the relevant words that can make it go away. You'd have to leap to the shocking concept that part of the Constitution can violate another part of the Constitution. Imagine what we could do with that. The Establishment Clause violates the Free Exercise Clause, etc. etc.

Let's get back to my article about Bickel's book:
It would make more sense, Bickel writes, to look at the good the electoral college has done and to infer the incorrectness of the one-person, one-vote principle. Indeed, the principle defies many of the structural components of constitutional law: the role of the Supreme Court, the two-senator allotment, the provision of at least one House member for each state, and the various requirements of supermajority. If Baker v. Carr is telling us to look with suspicion on all of those things, we ought instead to look with suspicion on Baker v. Carr. Democracy is not a matter of one-person, one-vote but of building “widespread assent” though the aggregation of a collection of minorities; “minorities rule” in a pluralistic country. Somehow, mysteriously, the electoral college achieves that real, complicated majority. Or so goes the Bickelian argument.

132 comments:

traditionalguy said...

They are opening Pandora's Box with the popular vote total rules concept.

That concept also cuts the Senate Vote number for States like Vermont and Rhode Island to 1/100th of one Senator in place of two Senators who feel free to vote like retards with no party.

Sebastian said...

Where's my trigger warning for this: "The framers “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” Justice Anthony M. Kennedy wrote in nullifying anti-sodomy laws in Lawrence vs. Texas. “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”"

PB said...

the electoral college is only an anachronism in that electors are designated and they get together to vote. Electoral votes should be automatically tallied and counted when a state certifies their election.

Hagar said...

I thought the Electoral College is part of the 3/5ths of a person deal, which was the price the North paid to get the South to go along with the "United" States thing?

Anyway, the U.S. is supposed to be a constitutional republic, not a democracy. That is fol-de-rol.

walter said...

traditionalguy said...That concept also cuts the Senate Vote number for States like Vermont and Rhode Island
--
Well..their track record of foreseeing unintended consequences has been in rare form lately.

Bob Boyd said...

If it ain't broke, don't fix it.

chickelit said...

So, predictions? Will the Electoral College cave to the death threats and empower Hillary after all?

Mick said...

There is no "Right to vote", therefore there is no "equal protection" violation in the state's granting of the voting "franchise" (License), in accordance with its own legislative mandate, so long as the "franchise" does not discriminate based on sex, race or age (if over 18 YO). The States could just as easily not conduct a general election for POTUS, and simply appoint electors. (See McPherson v. Blacker and Minor v. Happersett). Since there is no right to vote, then there is no "Democracy", and no "one person one vote" demand except within the individual states, once the franchise (license to vote) is given.

There is no demand that the electors be "independent" within the US Const., only that the states "appoint them as their legislatures direct." The thought that they are "independent" only comes from Federalist 68, which is not the Constitution.

EDH said...

Well, he's right about the Electoral College having been designed to prevent most of the states from feeling sodomized.

Bill, Republic of Texas said...

The electoral college is enshrined in the Constitution, but that doesn’t necessarily make it constitutional.
Well, yeah, it does, but let's continue:


Sorry professor but if this becomes "athing" then there will be 4 votes on the Supreme that would disagree with you.

DanTheMan said...

Freedom is slavery. War is peace. The Constitution is unconstitutional.

khematite said...

It's becoming difficult to remember that until the Republicans won five out of six elections between 1968 and 1988, the Electoral College was regarded as normally favoring the election of liberal presidents. It was argued that there was, in effect, a four-party system in the US: a Democratic presidential party more liberal than the Democratic congressional party and a Republican presidential party more liberal than the Republican congressional party.

The argunent was that because the Electoral College (not just because of how ita pportioned the vote, but also because of its evolution toward a "winner take all" system) advantaged large states. And large states were large because they had large cities. And large cities were large because they had large groups of minority voters. And minority voters favored liberal candidates for president.

Then came those five Republican victories, interrupted only by Jimmy Carter's very narrow victory over Gerald Ford and the Electoral College no longer seemed like a liberal bulwark.

exiledonmainstreet said...

traditionalguy said...
They are opening Pandora's Box with the popular vote total rules concept"

Not really. Even the Democrats I know who grumble about Hillary's popular vote total surpassing Trump understand very well that without the electoral college, all flyover country votes would be rendered meaningless. The smartest ones among them are doing what the Dems at the national level are refusing to do - trying to figure out how they can appeal again to the blue collars who were once their natural constituency.

exiledonmainstreet said...

chickelit said...
So, predictions? Will the Electoral College cave to the death threats and empower Hillary after all?

12/19/16, 8:23 AM

Not a chance. A handful might cave. 37 of them? No.

(And of course, some of them can't. They are bound to vote for the winner in their state or they will be replace by other electors.)

This is just another masturbatory fantasy for the bitter clingers on the left who are still unable to face reality.



sean said...

Jost's concept, that certain parts of the Constitution might be unconstitutional, is a dangerous idea that floats around the periphery of the liberal legal establishment. Recall that some Massachusetts Supreme Court judges speculated a few years back on whether a state constitutional provision banning gay marriage might somehow violate the state constitution. This mode of analysis, of course, would permit the utter abolition of democratic self-government by the people in favor of consistent implementation of the preferences of the elite. A lawprof dream!

The Vault Dweller said...

I like how the piece points out that the electoral college favors large states and not small states. Of course the leftist media has been trying to claim that the electoral college is unfair in that gives more weight to the vote of a person in a small state than to the vote of a person in large state but that ignores the 'game mechanics' of winning a presidency. The magic number is 270 votes. And of the 538 outstanding electoral votes, 435 are directly apportioned due to population of the states. That is over 80% of the votes which favor a system where population of the state matters. This hardly strikes me as a one-sided system designed to favor small-states.

Now if the concern for members of large-states is that their constituencies don't get enough attention in a national campaign that reflects their population there is a very easy fix. It doesn't even require a constitutional amendment or even national action. Simply make your apportionment of electors in your states proportional to the final popular vote outcome in your state. If every 4 years, Republicans had a decent shot at picking up 20 plus electoral votes in California, there would be far more attention spent in that state by both republicans and democrats than currently.

But of course that isn't the real goal. The left wants to maximize its political power. Which isn't irrational. Any political group will want to maximize its own political power. But the electoral college arose as a compromise between different political groups, one which will favor a certain apportionment of political power. Stop pretending your idea on apportionment of political power is somehow more 'fair' or 'just' when your group is simply seeking to maximize its own political power. Especially considering there probably wouldn't have been a nation as it is currently compromised, from which to apportion political power if the electoral college as designed wasn't made part of the Constitution. That seems like a bait and switch tactic on small-states.

Brando said...

"Then came those five Republican victories, interrupted only by Jimmy Carter's very narrow victory over Gerald Ford and the Electoral College no longer seemed like a liberal bulwark."

It's gone back and forth a bit--Republicans benefitted during those years because they were still pretty strong in the northeast, had a lock on California (from 1952 to 1988, it only went Democratic once, in '64) and with one post-'64 exception, the south was becoming GOP territory. Part of it was that the GOP had a lock on the suburbs.

But then, from '92 on, the Dems had the electoral advantage, getting a lock on the Northeast and West Coast, plus most Great Lakes states, so just a few inroads in the mountain states or a "border state" here and there was all they'd need to win. Whether Trump's crack at that wall (e.g., PA) will be a temporary blip or a new trend, time will tell.

What I find interesting is how relatively static the "red and blue" states have been since 2000. While about a dozen states shift a bit among the five elections since then, every other state has remained unchanged. This wasn't the case in the '50s through the '80s, where you might find entire regions shifting from party to party. The '64 and '72 maps are night and day, and they were only two elections apart.

Seeing Red said...

As a non-law professor, yes, the EC does recognize one person, one vote.

Your state gets your electors and your popular vote.

Just because more states one person, one vote didn't agree with your popular vote one person, one vote doesn't mean you throw out the baby with the bath water.

Kyzernick said...

If enough committed Democrats wanted to change electoral outcomes, they could organize a move to smaller Red states in great enough numbers to ensure their home states remained Blue while their target states became competitive, at least. The only problem with this plan is that these Democrat voters, once given some exposure to life in the Red states, could find themselves changing ideologies. Nothing is more convincing than seeing what works, and refugees from Cali, NY, Illinois, and Maryland are probably taken aback by living in a state where the government pays it's bills and gets important things done without considering how it will affect the 10 crazies who sexually identify as "gendervoid foxkin demiqueers".

Brando said...

"So, predictions? Will the Electoral College cave to the death threats and empower Hillary after all?"

My predictions haven't been stellar this year--I did correctly predict a close election with Hillary winning the popular vote by less than 5%, but I also predicted she'd benefit from the "blue wall" of electoral votes. But I am confident in this one prediction--the electors will do what they always do and vote for the winner of the electoral vote. Maybe half a dozen will stray, but nowhere near close enough to give this to Hillary.

Curious George said...

"exiledonmainstreet said...
The smartest ones among them are doing what the Dems at the national level are refusing to do - trying to figure out how they can appeal again to the blue collars who were once their natural constituency."

Going to be tough to do while still appealing to the "free shit" crowd, legal and illegal, and amnesty and immigration for all.

rhhardin said...

One man, one vote. If you want to include women, you have to extend the cliche dictionary.

rhhardin said...

One man, one death threat. It's still a democracy.

Brando said...

"If enough committed Democrats wanted to change electoral outcomes, they could organize a move to smaller Red states in great enough numbers to ensure their home states remained Blue while their target states became competitive, at least. The only problem with this plan is that these Democrat voters, once given some exposure to life in the Red states, could find themselves changing ideologies. Nothing is more convincing than seeing what works, and refugees from Cali, NY, Illinois, and Maryland are probably taken aback by living in a state where the government pays it's bills and gets important things done without considering how it will affect the 10 crazies who sexually identify as "gendervoid foxkin demiqueers"."

Maybe that'd be for the best then. Couldn't hurt to see how your political opponents live, and maybe learn they're human after all.

Of course, a native Floridian or Virginian or Carolinian might say they've already been doing this for decades.

GWash said...

if bikels argument is that the goal of the electoral college is to build 'wide spread assent' then this goal is falling far short.. 2 out the last 3 presidents have been elected with less than a plurality of the popular vote which seems to me less than democratic. of course my friends here will remind me that this is not a 'democracy' but a federal republic.. the more disturbing fact that in these divisive times there is a startling lack of wide spread assent, in fact there is more of a glaring lack of consensus. to me this bodes ill for the republic and results in these wild swings back and forth between right and left. although in this atmosphere it is probably impossible to escape this antiquated system, i don't see any benifits to the current arrangement - i did not vote for HRC...

Levi Starks said...

Two words in Althouse' response stood out to me... "Urban Savy"

tcrosse said...

So, predictions? Will the Electoral College cave to the death threats and empower Hillary after all?

Who knows what threats they face if they do go Faithless ? Especially if Trump supporters are jack-booted fascist thugs, as we are told.

SeanF said...

exiledonmainstreet: (And of course, some of them can't. They are bound to vote for the winner in their state or they will be replace by other electors.)

Replacing an elector after they've cast their vote would seem to be rather pointless, wouldn't it?

GWash said...

i think is it silly to think that trump will not be confirmed by the votes of the electors.. trump will prevail and we will have him as president for better or (probably) for worse... he will have pick up his game though..

traditionalguy said...

Keep in mind that one National Election Popular Presidential vote is ipso facto going to require One corrupt Federal Agency supervising voter qualifications and ballot counts in place of the thousands of local voting officials that are not corruptible, apart from several One Party Metropolitan Machine jurisdictions that already skew votes to Dems.

Bob Boyd said...

Progs are frustrated by the Constitution. They want to adapt it to modern times.
And the rats are frustrated by your lunch box. They want you start using a paper bag.

AprilApple said...

Corruptocrats don't like anything that gets in their way. Whatever that "thing" may be, and that thing is often the US Constitution.


rehajm said...

Now that they're in abundance I admit I've acquired a taste for their delicious tears.

Kyzernick said...

GWash, the last winner of the Super Bowl didn't achieve a plurality of the offensive yardage. Should they see their Lombardi Trophy as less legitimate because of it? Or should we all just shut the hell up about whether a metric that does not decide the outcome of anything in a Presidential election needs to be addressed? Trump won the states he did, and mostly with comfortable margins, or thin margins that show promise to build upon.

I for one anticipate that Trump will do well, since his appointments have so far been good, and since his business resume includes far more success than failure. Think a good-to-great Trump term might peel off some of those Gary Johnson voters? Maybe even some of the Steiners, or more minority Democrats who now have jobs and less illegal immigrant competition in the inner cities and elsewhere? Think an education secretary who can actually improve our schools might encourage some parents to keep the Trump Train rolling? I sure do.

Levi Starks said...

The thing is no one knows how the election would have turned out had popular vote been the deciding factor. Both candidates had as their goal to obtain a majority of the electoral college votes, Trump as a Republican was successful in this.
You may think that Hillary would have won a popular vote contest, but you'll never know since that's not the race that was run, and the people,who are telling you she would have are the same people who told you she would win the electoral college race.

rehajm said...

But the pee-pee pants have outstayed their welcome.

Ann Althouse said...

If you don't see why it's the large states that benefit most, read the whole article. Once you understand the idea, a lightbulb will pop on.

It has to do with how many electoral votes are affected by the those who make the difference in a big state. If you swing Wyoming, you moved 3 votes. If you swing California, you swing 55 (or whatever the number is). This makes blocs of voters — minorities — in big states most powerful.

mtrobertslaw said...

Whatever "urban savvy" may have meant in Bickel's day, today it means "concealed carry."

rehajm said...

As a great American statesman once said, Stop whining.

Michael K said...

"A handful might cave. 37 of them? No. "

There is one "faithless elector" pledged to Trump who is threatening to vote for someone elese, no c=doubt Hillary. The other electors who are asking for intel "briefings" are all Hillary electors. This is ginned up by the left to try to delegitimize Trump.

The "faithless elector" seems to be a serial fabulist who claims to have been a paramedic at the Pentagon on 9/11 but who was not employed at the time. I have not been able to determine where he came from but he appears to be a nut or a plant.

The "blue states" are dominated by minority slum populations who have been convinced by the left to vote Democrat in spite of evidence that they are not benefitted, except by transfer payments. As Democrat ruled cities deteriorate, middle class voters are leaving. An economic improvement under Trump may induce more of those voters to leave for red states.

GWash said...

kyze... i've heard that reasoning before... not really relevant here...however if the NFL changed its definition of winning to who gains the most yards then the team with the most yards will have won... in this case the rule book says that the candidate with the most electoral votes wins... we can debate the merits of that system (not the best in my opinion and i think the founding fathers probably thought that too, but the best compromise available at the time), but until changed that's how we do it.. i'm ok with it... just kind of awkward and backward.. i dont get the whole 'flyover' argument.. the representation in congress would not change... so the legislative power of the flyover states would be the same... kind of like the tail wagging the dog... my urban brothers vote only worth 2/3 of my iowa farmer brother..

Gahrie said...
This comment has been removed by the author.
Gahrie said...

Not really. Even the Democrats I know who grumble about Hillary's popular vote total surpassing Trump understand very well that without the electoral college, all flyover country votes would be rendered meaningless.

To the Democrats I know, this is a feature, not a bug.

campy said...

Remember, the death threats are just part of the process of motivating the electors to "vote their consciences" and go for the popular vote winner. They are the "stick," and we can be sure the Clintons offered many lovely "carrots" (at least the "green" parts thereof IYKWIMAITYD) from their $lush Fund millions as well.

Gahrie said...

the more disturbing fact that in these divisive times there is a startling lack of wide spread assent,

This "lack of assent" is only coming from the Left. When Obama was elected the Right didn't whine, or file court cases, or demand that the Constitution be altered or ignored. We simply dealt with our disappointment and got on with our lives.

Douglas said...

Overruling Baker v. Carr would be a big plus. Let's hope that the Democrats push a case to have the EC declared unconstitutional and instead the Court tosses Baker.

AprilApple said...

Basically- CA is unfair no matter how you slice it. Electoral college or no Electoral College.

I'll take the Electoral College because at least Wyoming gets 3. without it, places like Wyoming get zero.

Gahrie said...

Jost's concept, that certain parts of the Constitution might be unconstitutional, is a dangerous idea that floats around the periphery of the liberal legal establishment.

It is an absurdity. But when you have created a constitutional "right" to privacy and then used that "right" to create other "rights" such as abortion and gay marriage, you believe that the text of the document has no actual meaning beyond what you want it to have, and can convince five justices to support. Is the idea of certain parts of the Constitution being unconstitutional really any more absurd than interpreting the 14th Amendment, designed to overturn the Dredd Scott decision and grant Black people citizenship, to grant birthright citizenship to the children of tourists and illegal aliens? Even more absurd, somehow the 14th Amendment also contains a right to sexual privacy according to our elite justices.

Recall that some Massachusetts Supreme Court judges speculated a few years back on whether a state constitutional provision banning gay marriage might somehow violate the state constitution.

Speculate hell...that is exactly what happened in California. The people of California legally amended their Constitution to ban gay marriage. This amendment was then declared to violate the Constitution of California by the California Supreme Court.

This mode of analysis, of course, would permit the utter abolition of democratic self-government by the people in favor of consistent implementation of the preferences of the elite. A lawprof dream!

That ship sailed long ago...at least as far back as Roe V Wade

exiledonmainstreet said...

"The "faithless elector" seems to be a serial fabulist who claims to have been a paramedic at the Pentagon on 9/11 but who was not employed at the time. I have not been able to determine where he came from but he appears to be a nut or a plant."

I saw a news story on that guy. He was hired by the Manassas FD in October 2001, and the Manassas FD was not even involved in the response to the attack on the Pentagon. But that didn't stop this liar from showing up in Texas claiming to have been on the scene on 9/11. He undoubtedly has told many heartwrenching tales about what he saw that day, just as John Kerry can tell you all about Christmas in Cambodia. He has thrown ceremonial first pitches at mlb games to the cheers of the crowds and his 9/11 "heroism" probably played a part in his being chosen as an elector.

It looks like he is an utterly unprincipled man (he is also registered on Ashley Madison, the dating site for adulterers) who craves being applauded as a brave hero without, you know, actually being one. It doesn't matter who applauds him - a ballpark full of fans, or a bunch of Democrats, it's all the same - as long as he is being applauded.

Like all of the left's heroes, he is a phony, a fraud and a hypocrite.

exiledonmainstreet said...

Kyzernick said...

I for one anticipate that Trump will do well, since his appointments have so far been good, and since his business resume includes far more success than failure."

The leftists are not afraid Trump will fail; indeed, they are doing their best to ensure he fails.

What really terrifies them is that he might succeed.

Rocketeer said...

Once you understand that the president is in fact elected by 51 separate popular votes, it's pretty easy to see that talk of eliminating the EC isn't about the "popular vote" at all, but rather just a naked power grab by the more populous states.

Brando said...

It has to do with how many electoral votes are affected by the those who make the difference in a big state. If you swing Wyoming, you moved 3 votes. If you swing California, you swing 55 (or whatever the number is). This makes blocs of voters — minorities — in big states most powerful."

Right, but as an individual your vote has a better chance of swinging the three electors in Wyoming than it does of swinging the 50+ EVs in CA.

The bigger issue though isn't big states vs. little states, it's swing states vs. safe states. Just like in primaries it's early states vs. late states.

The solution of course is for safe states to make themselves a little less safe. Or, do as Maine does and make it worth the trouble to pull off a few of the stray EVs.

Drago said...

GWash: "my urban brothers vote only worth 2/3 of my iowa farmer brother"

LOL

Show your math.

This should be fun.

cubanbob said...

Apparently a lot of Democrats still don't understand why this country is called the United States of America and not the United Provinces Of America. If they did, then they would know why we have an Electoral College and why every state has two Senators and not less than one Congressman. This used to be taught in Civics back in the day.


"Ann Althouse said...
If you don't see why it's the large states that benefit most, read the whole article. Once you understand the idea, a lightbulb will pop on.

It has to do with how many electoral votes are affected by the those who make the difference in a big state. If you swing Wyoming, you moved 3 votes. If you swing California, you swing 55 (or whatever the number is). This makes blocs of voters — minorities — in big states most powerful.

12/19/16, 9:09 AM"

Give the Left what it wants but with a twist, let the State's EC vote be proportional to the number of counties won by the respective candidates. CA, NY and IL will become rather competitive states for the presidency.

mikee said...

I'd like to see any state eliminate public voting for the President, and vest the assignment of electors in the state legislature or governor, the way Senators used to be chosen. The Supreme Court case on that would be very interesting in addressing issues of federalism, individual rights and the Electoral College.

Plus, if it was California that did so, their Democrats might actually have to work to keep their stranglehold on the state legislature.

rhhardin said...

I'd replace the electoral college by placing names into a hat.

Brando said...

"I'd like to see any state eliminate public voting for the President, and vest the assignment of electors in the state legislature or governor, the way Senators used to be chosen. The Supreme Court case on that would be very interesting in addressing issues of federalism, individual rights and the Electoral College."

Or just go full British style and let the national legislature pick the head of government.

Chuck said...

Of course, Justice Kennedy's blathering about any understanding of "liberty... in different times" in the context of Lawrence v. Texas is eviscerated by the simple fact that unlike radio broadcasting, or nuclear energy, or jet travel, or digital technology, the Founding Fathers and the leaders of representative governments throughout the western world knew all about homosexual sodomy in 1789. And plenty of states -- maybe all 13 states, and many more to come -- had laws against homosexual sodomy. England and its grand body of common law recognized the laws against homosexual sodomy. And those laws were the NORM. They were not unconstitutional. So, as Justice Scalia asked during oral arguments, exactly when did that change? Which amendment to the Constitution changes that fact? Certainly not the 14th Amendment. Because laws against homosexual sodomy were every bit as much the norm in 1865, as in 1789.

Brando said...

"I'd replace the electoral college by placing names into a hat."

You know full well everyone's going to fight over what type of hat.

rhhardin said...

Placing names into a hat also works for bankrupt pension plans.

rhhardin said...

According to Freud, hats represent vaginas.

rhhardin said...

Title comes from titulus, a small breast.

Chuck said...

I was always curious how you taught Lawrence, Althouse. I regret terribly missing any chance to audit your class on that case.

In his Lawrence dissent, Justice Scalia wrote about the Kennedy-majority's having "laid waste" to what you taught for years; more or less of a "system" (methodology?) of jurisprudence in 14th amendment equal protection/due process cases.

Here is Scalia, predicting that Lawrence would lead to a federal court-imposed rule of homosexual marriage across the entire country. Scalia was right. Justice Kennedy was "pro-gay, and he was just being cagey about it," to quote one of my favorite law profs:

At the end of its opinion–after having laid waste the foundations of our rational-basis jurisprudence–the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Ante, at 13 (emphasis added). Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.

Bruce Hayden said...

So, predictions? Will the Electoral College cave to the death threats and empower Hillary after all?

I doubt it. Too many Republican loyalists. But, I would expect a serious FBI investigation if it were to happen. Trump is going to be President, since if he doesn't win in the Electoral College, he wins in the House, where the states each have one vote, and far more states have a Republican majority in their delegations than have Democratic ones.

Why couldn't a Trump/Sessions DoJ make Civil Rights Act arguments when leftists, like Soros, are funding and encouraging the disenfranchisement of Republican voters through intimidation of their electors? Think about it - if it is illegal to physically intimidate voters at polling places, why shouldn't it be just as illegal to win Electoral votes through massive numbers of death threats?

Of course, there is the other thing - swearing in any Dem at this point, and, esp. Crooked Hillary, would likely result in an armed uprising that the feds would be incapable of putting down (and a majority of states would have little interest in doing so). Keep in mind that the distribution of guns in this country is not even, politically. Not even close, and esp. if you look at the number trained in their use (as contrasted to just pulling a gat out of their pants and blazing away). And, neither is the distribution of military and LEO personnel. If the left think that they can get away with losing an election by the rules in place at the time of the election, then stealing the Presidency by use of death threats, they are sorely mistaken.

GWash said...

drago, i was trying to be figurative, based on the origin of the EC.... the correct number was i believe was that slaves counted as 3/5 of a person... a proud moment in the founding of the republic...

Kyzernick said...

GWash, there are urban places in Iowa, and most of the other Red states in the Midwest and the Rockies. There are also urban places in plenty of the denser Red states, and some of those barely broke for Hillary, or didn't. So the Blue voters in those sparser Red states also had votes that counted slightly more than the Red voters in the big states.

There just weren't enough. We all know how the system works going in. Anyone who was surprised to learn that voters are not weighted exactly even across all 50 states deserved to be surprised, and hopefully will take the time to educate themselves on what a federal republic is.

Kyzernick said...

@ exiled 9:44AM

Oh, I know that very well. My mother in NY is fretting madly that her Leftist snowglobe is about to get shaken up big time. We've had a few spirited discussions online about the whole thing, and what is clear to me is she is truly worried that the agenda on Trump's website is exactly what he will do, i.e., a fairly conservative shift plus a dose of populism.

He's beaten the odds thru every stretch of this process. I expect it to continue.

Gahrie said...

the correct number was i believe was that slaves counted as 3/5 of a person... a proud moment in the founding of the republic...

How should they have counted?

mccullough said...

One person, one vote only applies within each state. It wasn't a statement about equalizing the voting power of larger states with smaller states. Only a fool would think otherwise.

Mike said...

A little off topic, but here's another example for Chuck where the GOP establishment teamed with Nancy Pelosi to table impeachment vote. This is what we mean when we say they didn't fight for us, but sided with the most corrupt IRS to ever turn its fangs on American citizens. THIS is why we voted for change.

Trumpit said...

Even Bickel would be in a pickle with this past tainted election. The mainstream press was furiously trying to discredit Trump every step of the way. I hate trump, but their advocacy seemed blatant, relentless, and unfair to me. Parading all those alleged sexual assault victims was the LAST STRAW. It backfired. The pundits all have mud on their faces. Krugman doesn't think the Republic, like ancient Rome will survive. Time will tell.

Kyzernick said...

@ Levi 9:03AM

Amen to that as well. If the popular vote had mattered, Trump would have campaigned in eastern and northern California, upstate NY, eastern Oregon, and Minnesota - among others. These are all places where disaffected Republicans mostly didn't come out to vote, or voted 3rd party or put nothing on top of the ticket. Why would they? Hillary has their states on Electoral lockdown by virtue of a few larger cities within, and all the "smart people" say Trump has no chance on the Electoral map. It's a double whammy against.

But had Trump campaigned in those places, he would have drawn out big crowds. Thousands of people would have come out to see him, absorb the spectacle, and witness a movement of sorts, and some of them would have gone in not intending to vote for the man and left with their votes in Trump's pocket. The Tea Party drew out some of these people as well, including myself, who had not been so involved as to attend anything like this before - but Trump took the Tea Party enthusiasm and cranked it to Eleventeen in a bigly way. These people would have gone home and talked to friends and neighbors.
"You went to the Trump rally?"
"Sure did."
(hushed tone) "How - how was it? Does the man seem sane?"
"Yeah. Turns out the media might not be telling us the truth. Imagine that."

I saw it happen with the Tea Party. Heck, I saw it happen in 2008 with Obama, when a few of my Right leaning friends and coworkers decided to vote for "history". I mean, living in NY it didn't fucking matter, which is also part of how they justified it. But that was the difference the Tea Party made as well, because living in NY, we wanted it to matter. Those same friends were with me in 2009 when I attended the first Tea Party held in Albany. It was a good time, and lots of local businesspeople came out to speak against taxes and regulations, and some even went through their ledgers to show how the costs of doing business and employing people in NY were too high. If that kind of dry-to-the-point-of-arid breakdown of the failures in D.C. and Blue-model state capitals was able to become a success, the spectacle and and energy of the Trump campaign could have done the same. And that's just NY. Districts in Cali and Oregon that went to Hillary by slim margins could have been flipped had Trump made appearances.

I have a feeling that if the popular vote mattered at all, Trump would have found a way to win that too.

YoungHegelian said...

@Gwash,

the correct number was i believe was that slaves counted as 3/5 of a person... a proud moment in the founding of the republic...

Actually it was. We could be prouder is they had no vote at all. Stop regurgitating lefty talking points and actually read some history.

It was the southern slave holders who wanted their slaves to have the full vote because they controlled how they voted. The votes of the slaves would have been used to support the very powers that enslaved them. It was the abolitionists who wanted the slaves to not be able to vote while still enslaved. The 3/5 rule was a compromise congress worked out between the two opposing parties.

Sheesh. I bet you think the Immaculate Conception has something to do with the conception of Jesus, too.

Kyzernick said...

@ Trumpit 10:18AM

You're absolutely right. Ssshhhhhhh! Don't tell your lefty friends, mmm'kay? We'd rather you not figure it out until after 2018 or so.

Although, if you do tell them, hint that a return to the JFK-style Democrat might turn your party's fortunes around. "Ask not what your country can do for you . . ." and all that.

khematite said...

rhhardin said...
I'd replace the electoral college by placing names into a hat.


That's how you wind up with President 7-1/8

MountainMan said...

"I'd like to see any state eliminate public voting for the President, and vest the assignment of electors in the state legislature or governor, the way Senators used to be chosen. The Supreme Court case on that would be very interesting in addressing issues of federalism, individual rights and the Electoral College."

Why would there be a Supreme Court case? Prior to the Civil War a significant number of the electors in each election were selected by the legislatures of several of the states. The common practice of a popular vote became standard in the second half of the 19th century. CO legislature selected its electors in 1876, the last to do so. FL could have saved us all a lot of trouble if the legislature had just picked the electors in 2000.

Michael said...

All of this is rather beside the point. Had it not been for the Great Compromise (two Senators per state and the Electoral College), there never would have been a United States because the small states would never have submitted to Imperial Virginia. In the same way, the rest of the country will not now submit to Imperial California.

Chuck said...

Mike said...
A little off topic, but here's another example for Chuck where the GOP establishment teamed with Nancy Pelosi to table impeachment vote. This is what we mean when we say they didn't fight for us, but sided with the most corrupt IRS to ever turn its fangs on American citizens. THIS is why we voted for change.


I think a lot of "the GOP establishment team" held their noses and voted for Trump, in the interest of change as well. Change, that is, from a Democrat administration, to an administration that might approximate a Republican administration. So far, the Trump Cabinet looks pretty Republican to me.

Chuck said...

...and Mike, I think that the interesting thing is that Trump could just govern as a standard Republican, and to the extent that he is defying populist promises made to his most devoted supporters, I think that they will just adopt it all. The only real principle being that whatever Trump says and does is alright.

All in keeping with the Trumpian idea that he could shoot somebody in the middle of Fifth Avenue, and his supporters would accept it.

MountainMan said...

"It was the southern slave holders who wanted their slaves to have the full vote because they controlled how they voted. The votes of the slaves would have been used to support the very powers that enslaved them. It was the abolitionists who wanted the slaves to not be able to vote while still enslaved. The 3/5 rule was a compromise congress worked out between the two opposing parties."

Slaves could not vote, they were not citizens. The 3/5 rule was for counting the population and allocating members of the House, which affected electoral votes. Southern states wanted them to count as whole persons for obvious reasons. Slaves were not fully free and had full equality as citizens until the 13th, 14th, and 15th amendments.

Gahrie said...

And plenty of states -- maybe all 13 states, and many more to come -- had laws against homosexual sodomy. ... They were not unconstitutional. So, as Justice Scalia asked during oral arguments, exactly when did that change?

When the decision was announced in Lawrence V Texas.

Which amendment to the Constitution changes that fact?

The 14th.

Certainly not the 14th Amendment. Because laws against homosexual sodomy were every bit as much the norm in 1865, as in 1789.

The words and their meanings, the intent of the authors, and history are unimportant and carry no weight. The only thing that natters is how you can use the text to convince five Justices to believe what you want them to.

Anglelyne said...

Drago to GWash:

LOL

Show your math.

This should be fun.


GWash's comments - wandering content punctuated only by ellipses - always make me envision Barbie tapping away on her phone. And we all know what Barbie thinks about math. (So yeah, it would be fun.)

YH to GW:

Actually it was. We could be prouder is they had no vote at all. Stop regurgitating lefty talking points and actually read some history.

History is hard!

rcocean said...

"If you swing California, you swing 55 (or whatever the number is). This makes blocs of voters — minorities — in big states most powerful."

Yes, that's exactly what was WRONG withe the EC for almost 80 years 1868-1948. The Republicans/Democrats would pander to Big city ethnics and roll up huge EC majorities because NY, Illinois, Pennsylvanian had winner-take-all. It lead to someone from NY state being on a presidential ticket in almost every election from Horace Greeley to FDR. It effected Foreign policy too - in a bad way.

BTW, if the Democrats are worried that popular vote doesn't equal EC votes, just go to a EC vote by congressional district. Of course, the Dems don't want that, because then they couldn't get 100% of the 55 California EC votes with 60% of the popular vote.

rcocean said...

What the Republicans really need to do is pass a FEDERAL law requiring the EC voters to vote the way the state legislature requires them to.

If the Federal courts then want to dispute that, fine, lets go the SCOTUS right now and get it settled.

Michael K said...

" the correct number was i believe was that slaves counted as 3/5 of a person... a proud moment in the founding of the republic..."

Civics used to be taught in 8th grade. What a shame that the left has destroyed that glue that held the country together.

You may have thought that comment was clever but it just showed ignorance. I won;t repeat the lesson Young Hegelian posted.

rcocean said...

"If you swing California, you swing 55 (or whatever the number is). This makes blocs of voters — minorities — in big states most powerful."

Yes, that's exactly what was WRONG withe the EC for almost 80 years 1868-1948. The Republicans/Democrats would pander to Big city ethnics and roll up huge EC majorities because NY, Illinois, Pennsylvanian had winner-take-all. It lead to someone from NY state being on a presidential ticket in almost every election from Horace Greeley to FDR. It effected Foreign policy too - in a bad way.

BTW, if the Democrats are worried that popular vote doesn't equal EC votes, just go to a EC vote by congressional district. Of course, the Dems don't want that, because then they couldn't get 100% of the 55 California EC votes with 60% of the popular vote.

Mark Caplan said...

Althouse: You'd have to leap to the shocking concept that part of the Constitution can violate another part of the Constitution.

That happens all the time, as later amendments annul or repeal sections that had been ratified earlier. In that sense, the 14th Amendment (one person, one vote) could be interpreted to supersede earlier sections that layout the electoral college process.

Gahrie said...

Civics used to be taught in 8th grade. What a shame that the left has destroyed that glue that held the country together.

One problem is that most 8th grade teachers are products of the Left's domination of our educational institutions. Most of them were never taught the meaning and purpose of the 3/5th compromise. I know, I used to teach 8th grade history. My students and fellow teachers were both stunned at my recitation of the reasons for the 3/5 compromise and most rejected it. They knew that the purpose of the 3/5 Compromise was to denigrate and depreciate the Black man.

The same thing happened when I moved to the high school.

It is not different from the reasoning in Lawrence.

Kyzernick said...

Is it just me, or does GWash kinda sound like a college liberal? Full of piss and vinegar, but short on the historical context to the facts they present or the arguments they make? That struck me a few days ago, and seems more plausible given the whole "I don't understand the 3/5ths Compromise" deal.

Kyzernick said...

I have argued on Facebook about the 3/5ths Compromise, and how it went through a few proposed permutations before settling on it's final ratio. Some have viewed it through the lens of, "Well, the non-slaveholding states didn't care about the slaves or laying groundwork for eventual abolition - they just wanted their interests protected."

To that my response is always "Nonsense, plenty of the representatives from the non-slave states were against slavery publicly or privately, and this was certainly a factor in their decision making. Was it the ONLY factor? Probably not, but you take what you can get."

Chuck said...

The only thing that natters is how you can use the text to convince five Justices to believe what you want them to.

One of the great Freudian slips/typos/Malapropisms in the history of the Althouse blog.

https://www.merriam-webster.com/dictionary/natter

Brando said...

"BTW, if the Democrats are worried that popular vote doesn't equal EC votes, just go to a EC vote by congressional district. Of course, the Dems don't want that, because then they couldn't get 100% of the 55 California EC votes with 60% of the popular vote."

If we let the House decide, imagine how previous elections would have turned out:

2016, 2012: GOP Prez
2008: Dem Prez
2004, 2000, 1996: GOP Prez
1992 back to 1956: Dem Prez

So, Obama and Clinton are one-termers, no Nixon, Reagan or Elder Bush. Of course then there's the question of who the respective parties would have nominated.

Kyzernick said...

At the end of the day the EC serves an important purpose. Disagreeing in good faith that despite our founding as a Republic, the modern age demands a popular vote kind of system, is all well and good. There are merits to that argument, but they are in my opinion overruled by the drawbacks. If the Blue voters want to change the outcome next time, their best bet is to move in droves to Red states (which, in fact, they are - Blue states are having major population drain issues these days). But many of those emigrating voters are Red voters anyway, and those who aren't are susceptible to being converted by the natives in their newly adopted ZIP codes.

Gahrie said...

In that sense, the 14th Amendment (one person, one vote) could be interpreted to supersede earlier sections that layout the electoral college process.

Baker V Carr was also an offense against the 14th Amendment. The 14th Amendment was created to overturn Dredd Scott and protect the right of Black people to hold American citizenship. It also dealt with some Reconstruction issues.

The 14th Amendment was not intended to create birthright citizenship, the idea of "one person, one vote" or the ideas of privacy or sexual liberty. These are all abusive creations by activist judges twisting the words of the Amendment, ignoring both the history behind it and the intentions of its authors.

In today's legal environment I defy you to cite an issue that the 14th couldn't cover.

Gahrie said...

One of the great Freudian slips/typos/Malapropisms in the history of the Althouse blog.

Touche.

Drago said...

GWash: "drago, i was trying to be figurative, based on the origin of the EC.... the correct number was i believe was that slaves counted as 3/5 of a person... a proud moment in the founding of the republic.."

You helpless little moron.

Counting blacks as 3/5's of a person was the ANTI-SLAVERY position.

The best outcome for the ANTI-SLAVERY position would have been to not count the slaves at all for the purpose of determining a state's total population for legislative representation and taxes.

The SLAVERS wanted blacks counted as FULL PEOPLE for those purposes which would have resulted in an increase in the electoral and political power of the SLAVE states.

When you encounter a child-like mentality like GWash's, you can always bet that it's a leftist who doesn't understand even the most basic facts of our history.

Thanks GWash, for being precisely what we all know you to be.

Ken B said...

The Canadian system is much admired by those on the left here, who otherwise complain about the EC. But it is the EC on stilts. Parliament chooses the PM, and members are elected by first-past-the-post local plurality. Further the PM need not even be an elected member.

HoodlumDoodlum said...

In response to "The electoral college is enshrined in the Constitution, but that doesn’t necessarily make it constitutional." Ann Althouse said...Well, yeah, it does, but let's continue

I don't understand that reaction, Professor. It's what I would say, but I don't get how it's what you'd say. On several topics relating to Constitutional law & interpretation over the years you've taken what is to me a very broad/permissive position w/r/t what can be "found" in the Constitution and/or what interpretations of the words of the Constitution might be valid. The typical cycle is one of us objecting to what we see as an overly broad/unsupported (by the text) interpretation, followed by your explanation of why that interpretation was made (often relying on the function or effect the proposed interpretation might have today) followed by our arguing that the text doesn't say that/doesn't support that finding followed by your assertion that the text doesn't directly address the question and must be interpreted, so therefore this or that interpretation (made by a member of a voting majority of the Supreme Court) is valid.

So, following that pattern, let's say 5 Justices agree with Jost that the EC is enshrined in the Constitution but that the EC itself is, today, not Constitutional. Why, under your standard, would that be wrong? (Further, why not just wrong but self-evidently wrong, prompting a "well, yeah" response?!)

Gahrie said...

How long until the Left starts making the argument that the 2nd Amendment is unconstitutional?

tcrosse said...

The Canadian system is much admired by those on the left here, who otherwise complain about the EC. But it is the EC on stilts. Parliament chooses the PM, and members are elected by first-past-the-post local plurality. Further the PM need not even be an elected member.
Not only that but Canadian Senators are appointed by the Governor General on the advice of the Prime Minister.

HoodlumDoodlum said...

Ann Althouse said...There's no complicated search for the meaning of the Electoral College. The Constitution delineates it in explicit, concrete terms. There's no interpretation of the relevant words that can make it go away. You'd have to leap to the shocking concept that part of the Constitution can violate another part of the Constitution. Imagine what we could do with that.

Again, I guess I just don't get this. How many (liberal) judges and Justices believe--at this very moment--that the death penalty (however carried out) is unconstitutional? The answer is certainly more than 0! But the Constitution explicitly, unambiguously mentions death as a valid penalty for some crimes. Some non-zero number of current judges & Justices, then, clearly believe that part of the Constitution violates the Constitution/another part of the Constitution. I think it's wrong, maybe you think it's wrong, Professor--but why would such a belief be "shocking" to you?!

GWash said...

drago and YH you are correct, i got that one ass backwards and i sometimes have trouble with holy days of obligation too.. my point was and is that one man one vote would be the gold standard for me and its time we got away from a 200+ year old compromise to assuage southern slave holding states... this is 2 out of the last 3 presidents that were elected after coming in second place... sorry to get that wrong...

campy said...

Is it just me, or does GWash kinda sound like a college liberal?

Nah, more like a high school liberal. Maybe middle school.

Paul McKaskle said...

If the Electoral College is unconstitutional because it violates the equal protection clause despite its being expressly provided for in the Constitution then so is the apportionment of the U.S. Senate (also expressly provided for in the Constitution) because of egregious discrepancies in the ratio of population per senator--Wyoming having a Senator per 300,000 people and California one Senator per 20,000,000 people.

That'll be the day when the Supreme Court requires each Senator to represent 1/100th of the population of the U.S. Smaller states will have to be combined to elect "their" Senator--e.g., Maine, New Hampshire and Vermont would get a Senator and the Dakotas, Montana, Wyoming, Idaho probably would get a single Senator. But California would have ten or eleven.

GWash said...

i know its bad form to man up when you make a mistake here... but i'll take the arrogance and condescension on this one.... my bad...

walter said...

Gwash..is there anything he can't drag racism into?

GWash said...

lol.. i can't even do a mea culpa without trump wannabees chastising me... is walter saying that the EC was not based on southern slavery?... and that racism is not a hallmark of this country, something we all have to deal with...

Drago said...

GWash: "..my point was and is that one man one vote would be the gold standard for me and its time we got away from a 200+ year old compromise to assuage southern slave holding states.."

The ignorance train just keep rolling along with this one.

Our Founding Fathers, who were geniuses by the way (especially compared to the elitist idiots attempting to lead us by arrogance now and despite what the idiots at The Young Turks might say) understood full well the danger of pure democracy, which is why they explicitly rejected it.

But hey, GWash, who couldn't be bothered to understand even the rudimentary basics about the founders viewpoints and positions and was appropriately burned for it now wishes to continue skipping merrily down the moron path.

You know what, have at it. However, none of us is going to skip with you over that cliff.

I suggest you look more closely at the Chesterton's Fence principle, not that you will, or that if you did you would truly understand it, nor if you truly understood it you would be willing or able to internalize it and apply it appropriately to these circumstances.

Drago said...

GWash: "i know its bad form to man up when you make a mistake here..."

Your humble brags impress no one.

GWash said...

get up on the wrong side of bed this morning drago?... ok so you're an defensive ideologue, just ignore me... not sure what a humble brag is... but nevermind...

Drago said...

GWash, we live in the age of google. We never have to go more than 17 seconds from the moment we become aware of something for which we were previously unaware to the moment when clarity can be achieved.

I highly recommend this thing call the "interwebs".

Drago said...

BTW, your pivot to painting me as "defensive" (when there is nothing to be defensive about) is simply another marker on pathway to recognizing your significant logic/reason deficiencies.

The good news?

It doesn't have to remain that way.

GWash said...

i'm pretty happy with my logic and reasoning capabilities at this point... i'm doing fine... dont worry about me... save your offensive condescension for someone more worthy of your patience and understanding... nice insights here though... btw 'painting' my comments as 'humble brags', while confusing to me, (i did the 17 seconds of research you requested) i'll take under advisement and try to do better for you...

Michael K said...

one man one vote would be the gold standard for me and its time we got away from a 200+ year old compromise to assuage southern slave holding states.

You still don't get it. I suggest Madison's account of the Constitutional Convention.

In there you would see a discussion of Connecticut Comprimomise, which gave us the Senate and House construction.

On May 29, 1787, Edmund Randolph of the Virginia delegation proposed the creation of a bicameral legislature. Under his proposal, membership in both houses would be allocated to each state proportional to its population; however, candidates for the lower house would be nominated and elected by the people of each state. This proposal allowed fairness and equality to the people. Candidates for the upper house would be nominated by the state legislatures of each state and then elected by the members of the lower house. This proposal was known as the Virginia Plan.

Less populous states like Delaware were afraid that such an arrangement would result in their voices and interests being drowned out by the larger states. Many delegates also felt that the Convention did not have the authority to completely scrap the Articles of Confederation,[1] as the Virginia Plan would have.[2] In response, on June 15, 1787, William Paterson of the New Jersey delegation proposed a legislature consisting of a single house. Each state was to have equal representation in this body, regardless of population. The New Jersey Plan, as it was called, would have left the Articles of Confederation in place, but would have amended them to somewhat increase Congress's powers.[3]


It explains the argument.

For their part, the small state representatives argued that the states were, in fact, of a legally equal status, and that proportional representation would be unfair to their states. Gunning Bedford, Jr. of Delaware notoriously threatened on behalf of the small states, "the small ones w[ould] find some foreign ally of more honor and good faith, who will take them by the hand and do them justice."

Slavery was not the issue.

Gahrie said...

is walter saying that the EC was not based on southern slavery?..

Don't know...but I am. The purpose of the Electoral College was to prevent the excesses of democracy.

and that racism is not a hallmark of this country, something we all have to deal with...

A hallmark? I'd deny that.

A serious issue that needs to be dealt with? Sure.

But this country is one of the least racist in history, and provides the highest standard of living for all minorities in the world....that is why they are literally dying to get here.

Our national obsession with race is because it is a tool of power to the Left.

JAORE said...

Bravo, Drago.

Every time I hear 3/5ths as if it were a way of demeaning blacks BY the slave holding states I cringe.

They, as you say, have it entirely backwards. When ignorance fits your worldview it is tough to change.

JAORE said...

Oh, GWash.... I give you your due. You did man up. My comment on ignorance was directed at the many folk I've heard attribute the 3/5ths as being a means to demean blacks rather than the compromise on representative power.

GWash said...

then your position is that slavery did not play into this compromise at all?... and gahrie a hallmark by any other name is a serious issue... not sure i can agree that this country is the least racist in history (i'll have to do my alloted 17 seconds of research on the interweb for that).. our national obsession with race is a result of our words not matching our actions.. and the results of hundreds of years of oppression.. all men are created equal... southern signers to the decloration must have had their fingers crossed or held their noses when they took quill to hand... the genius' scootched the pooch on that one... now here we are 150 or so years after we had to reiterate that all men are created equal and still struggling with racism.. why is that?.. is it an innately human thing or is it a cultural thing?

Livermoron said...

GWash, that you don't see the problems with your position on the EC...despite all the arguments and historical reasons that mandate its existence...well, it just illuminates your fascist philosophical underpinnings.

The Great Compromise is not some obscure bit of historical flotsam...it is THE MAIN ISSUE that, without resolution, threatened to abort this nation in the womb. You shouldn't be commenting on anything constitutional if you don't understand this.

You are exactly who Limbaugh meant when he coined the term 'low information voter'.

Are you sure you aren't garage?

Brando said...

Instead of fretting over how slaves were 3/5 persons in the original constitution, we should marvel at this great advance. Under the law and tradition of that time and place, slaves were merely property like cattle. You don't see anyone counting cattle for apportionment purposes even today in our PETA-influenced world, even if states with a lot of cattle would prefer that. So 3/5 of a person is a positive step.

Gahrie said...

and gahrie a hallmark by any other name is a serious issue..

No...a hallmark is a distinguishing characteristic... and i reject the idea that racism defines the U.S..


not sure i can agree that this country is the least racist in history (i'll have to do my alloted 17 seconds of research on the interweb for that)

I'll make it easier for you..come up with one that is less racist.

now here we are 150 or so years after we had to reiterate that all men are created equal and still struggling with racism.. why is that?.. is it an innately human thing or is it a cultural thing?

It's a human thing. It comes from the same well as tribalism, and it is present in every culture known to us. Otherizing is universal, and leads to the Rwanda Massacure, the Irish Troubles all the way to sports fandom ( I hate Dallas fans!)

Drago said...

GWash: "i'm pretty happy with my logic and reasoning capabilities at this point... i'm doing fine... dont worry about me... save your offensive condescension for someone more worthy of your patience and understanding... nice insights here though... btw 'painting' my comments as 'humble brags', while confusing to me, (i did the 17 seconds of research you requested) i'll take under advisement and try to do better for you..."

tsk tsk. Don't think of it as work. The whole point is just to enjoy yourself....

https://www.youtube.com/watch?v=yNm5RZoL2Ro

Drago said...

With GWash aboard, it is impossible to avoid Peggy Noonans apt observation of the leftist vis a vis the rest of us: "It’s the big fact of American life now, isn’t it? That we are patronized by our inferiors."

BTW, how is Tony Podesta's role as chief US lobbyists for Russia's largest bank, Sberbank (heavily connected to Putin) coming along?

Say, why would Putin want his chief lobbyists in the US to lose an election?

Questions, questions....

GWash said...

gahrie - i guess what we are calling a distinguishing characteristic depends largely on your point of view..a 'no colored' drinking fountain might be seen as a d.characteristic if you are black and tried to get a drink... and that characteristic goes deeper and gets more subtle with things like red lining in real estate and a million other things.
i get your point about naming another country,,,not as easy as i thought but brazil does come to mind and england so if i had more time i'm sure i can come up with some...
and one last thing we can agree on... i'm convinced that as you say it's a human thing and in a sense we are all racists..to me it's what you do with that knowledge and if you believe the genius' that created the declaration that stated in a moment of supreme clarity 'all men are created equal'... i'm sure that that is the way that God sees it.. bonus point of agreement - i hate the cowboys too

Livermoron said...

Brando, this 'slaves were 3/5ths of a person' is not what the CONUS said. It took the total number of 'persons in service' (slaves) and multiplied it by 3/5ths (60%). Same math but w/o the denigration implied.

Young Hegelian - the Great Compromise was about counting population towards apportionment, not for giving the slaves the vote.

Livermoron said...

and gahrie a hallmark by any other name is a serious issue..

GWash, is English your first language? A firm grasp on the meanings of words would perhaps help your comprehension. Perhaps.

Just a helpful tip.

Gahrie said...

i guess what we are calling a distinguishing characteristic depends largely on your point of view..a 'no colored' drinking fountain might be seen as a d.characteristic if you are black and tried to get a drink..

That was true in only a small geographical part of the US, was true for less than 100 years and is no longer true.

Livermoron said...

Gahrie, don't forget that that small region was run by the Democrats.

Gahrie said...

Gahrie, don't forget that that small region was run by the Democrats.

Oh I don't...in fact I'm pretty infamous in repeating the fact that every major racist event in this country's history was perpetrated by Democrats:

slavery
Trail of Tears
Jim Crow
Japanese Internment
resegregation of the government and military......

Anglelyne said...
This comment has been removed by the author.
Anglelyne said...

GWash: i guess what we are calling a distinguishing characteristic depends largely on your point of view

No, it depends on whether it is a distinguishing characteristic or not.

You are free to use your own private definitions for words in your writing, but your readers are equally free to dismiss you as sloppy-minded, illiterate, or dishonest for doing so.

Slavery was not a "distinguishing characteristic" of the United States, because it existed in dozens of other countries (including other European-derived nations) during and after the dates it was practiced here.

Drago said...

GWash: " i guess what we are calling a distinguishing characteristic depends largely on your point of view."

LOL

Amazing.