The election: a lesson and an observation
The presidential election has introduced a level of discord in America not seen for a long while.
On its face, that’s not surprising, as conflict is endemic to the process. But in this election, the discord displayed itself at the family-and-friends level more acutely than usual, including in my own circle.
The discord sometimes manifested — and is still manifesting — itself in ad hominem attacks laced with venom. This may appear to be an unprecedented situation, but, strange at it may seem, there have been many campaigns soured by the same degree of vitriol.
If asked to name the country’s greatest president, most of us would say Abraham Lincoln. But in his day, Lincoln was personally reviled both by people whose causes he advocated and those politically opposed to him.
George Templeton Strong, a prominent New York lawyer and diarist, wrote that Lincoln was “a barbarian, Scythian, yahoo, or gorilla.” Abolitionist Henry Ward Beecher, brother of Harriet Beecher Stowe, often ridiculed Lincoln in his New York newspaper, The Independent, rebuking him for his lack of refinement and calling him “an unshapely man.” Northern newspapers openly called for Lincoln’s assassination. Lincoln was branded a coward, “an idiot,” and “the original gorilla” by none other than the commanding general of his armies, George McClellan, his Democratic opponent in the 1864 election and future governor of New Jersey.
In other words, as noted by Kohelet, “There is nothing new under the sun.”
There are many lessons to be learned from the 2016 election and even more observations. By now, you have heard a host of these, but I feel the need to raise or reinforce certain points.
The United States is a federal republic, not a democracy. Although the words in popular parlance are used synonymously to describe our government, there are some important differences. Ask Plato.
One significant difference is that the principle of “one person, one vote” does not apply to the election of a president, which is why the framers of the Constitution created the Electoral College.
The federal government is the creation of the states, not vice versa, as it often appears. Thus, the states built in restraints on the federal government with the idea that most government power would be retained by the states, including the establishment of the Electoral College. Regardless of the outcome of the popular vote, Article II, Section 1 of the Constitution provides that the president and vice president be chosen in a manner directed by each state. The mechanics of electoral voting as set forth in the 12th amendment ensures that each state have a say in the selection of the two highest officials.
Harvard law professor and former presidential candidate Lawrence Lessig, while trying to get the electors to vote based on the popular vote, inadvertently argues for the Electoral College, citing Alexander Hamilton’s Federalist No. 68, “Like a judge reviewing a jury verdict, where the people voted, the electoral college was intended to confirm — or not — the people’s choice. Electors were to apply, in Hamilton’s words, ‘a judicious combination of all the reasons and inducements which were proper to govern their choice’ — and then decide.”
George Washington University Law School professor Orin Kerr points out that the original design of the electoral college was for electors to exercise their independent judgment about who would be the best president; therefore “it’s hard to see how electors would be exercising their independent judgment by deferring to the popular vote.”
We have been here four times.
In 1824, Andrew Jackson won both the popular and the electoral vote but no one in the four-man race won a majority in the Electoral College. The House of Representatives decided the outcome by picking John Quincy Adams, who had come in second in the popular and electoral votes.
In 1876, Samuel J. Tilden won 51 percent of the popular vote, while Rutherford B. Hayes captured 48 percent. However, Hayes won one more electoral vote than Tilden, and a special electoral commission picked Hayes to be president.
In 1888, Benjamin Harrison became president by winning more electoral votes than Grover Cleveland, even though he received only 47.8 percent of the popular vote.
And, of course, there was the 2000 election, in which George W. Bush had more electoral votes than Al Gore but lost the popular vote.
The bottom line is that if Donald Trump has the majority of the Electoral College when it convenes, he will be the constitutional president-elect.
If people are dissatisfied with the outcome, the Constitution has a methodology for changing the current election procedure — either go through the amendment process or call a constitutional convention.
As the oft-quoted Chinese curse goes, “May you live in interesting times.” The next four years are going to be most interesting.