September 03, 2019

Chris Hayes and Progressives’ Lack of Respect for the Constitution
Last week, conservatives in the Twitterverse had a good chuckle at the expense of MSNBC host Chris Hayes for something he said about the Electoral College on his show.“The weirdest thing about the Electoral College,” he offered, “is the fact that if it wasn't specifically in the Constitution for the presidency, it would be unconstitutional.”This is one of those things that sound a lot better in your head than they do coming out of your mouth! We’ve all been guilty of saying something similarly dumb, and most of us have probably been subjected to some good-natured ribbing over it. Hayes didn’t appreciate the ribbing, though, and took to Twitter a few days later to blast the entire conservative movement:> These days, conservatism is a movement deeply paranoid and pessimistic about its own appeal, increasingly retreating behind counter-majoritarian institutions: the senate, the courts, the electoral college.> > -- Chris Hayes (@chrislhayes) September 1, 2019> And so they are increasingly focused, as a matter of tactical and tribal fidelity, on ways to uphold minority rule. It’s a sad place for a movement to be.> > -- Chris Hayes (@chrislhayes) September 1, 2019I certainly agree that the Republican party needs to focus on broadening its appeal. But here’s the catch: Hayes’s armchair psychoanalysis notwithstanding, he is just plain wrong about the Constitution. And by that I do not mean that his breezy, clever-sounding point is actually a tautological non-sequitur. I mean that his underlying reasoning is false.Here’s his full original assertion:> The weirdest thing about the Electoral College is the fact that if it wasn't specifically in the Constitution for the presidency, it would be unconstitutional. Here’s what I mean by that. Starting in the 1960s, the Supreme Court started developing a jurisprudence of one person, one vote. The idea is that each individual vote has to carry roughly the same amount of weight as each other individual vote, which is a pretty intuitive concept, but is not a reality. There are all sorts of crazy representational systems that were created that would not give one person one vote, and that would disenfranchise certain minorities.If Hayes hadn’t been so glib, he might have said that the Electoral College runs contrary to the spirit of the Constitution. But, as I said, that is not true, either.The Supreme Court’s one-man-one-vote rule applies to state legislative elections and the House of Representatives, which makes sense in the constitutional scheme. The House of Representatives is the national institution of representation in our government. But our system is not wholly national. Here’s James Madison in Federalist No. 39:> The House of Representatives will derive its powers from the people of America; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State. So far the government is NATIONAL, not FEDERAL. The Senate, on the other hand, will derive its powers from the States, as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is FEDERAL, not NATIONAL. The executive power will be derived from a very compound source. The immediate election of the President is to be made by the States in their political characters. The votes allotted to them are in a compound ratio, which considers them partly as distinct and coequal societies, partly as unequal members of the same society.For these reasons, as well as others, Madison concludes, “The proposed Constitution . . . is, in strictness, neither a national nor a federal Constitution, but a composition of both.”So, Hayes is right in a very narrow sense: Neither the Senate nor the Electoral College would make any sense in a strictly national government where the states no longer had any sovereign function. At the Constitutional Convention in Philadelphia, this is what Madison wanted, more or less: to strip the states of their power in national affairs. But it just could not pass muster, and the Convention embraced the compromise pushed by small-state delegates: a compound republic embracing both national and federal modes.This is really Civics 101, and I’m not at all sure how many pundits on the left fully understand it. I rarely if ever see prominent progressives seriously engage with The Federalist Papers or Madison’s notes on the Constitutional Convention. Sometimes I wonder if they even know to look in those places for explanations of our constitutional structure. I get the impression that they think the whole design is a product of simple-minded men who lacked their sophisticated views on government. Yet when you read through the original debates about the Constitution, it becomes clear that the Founders often thought through these issues more carefully than contemporary intellectuals.Why are they so intent on attacking the Constitution in this case, anyway? There are, after all, other ways to ameliorate the problem of divergence between the popular vote and the Electoral College. Each state’s apportionment is the sum of its House and Senate delegates. The size of the House of Representatives is not fixed at 435. That number could be expanded, which would be completely consistent with the Constitution — probably more so, as the founding generation was skeptical that large districts could actually be representative. An expanded House would alleviate the frustrations of the large states, and it might also mitigate the problem of money in politics.Moreover, why are states given a pass for allocating electors on a winner-take-all basis? Again, it is not required under the Constitution, and in the early days of the republic electors were often allocated on a proportional basis. If the 2016 election had been conducted on that basis, Hillary Clinton’s Electoral College haul would have gone from 227 to about 255 — not enough for her to win the required absolute majority under a 538-vote Electoral College, but perhaps enough to win such a majority of the larger electoral-vote total created by an expanded House.I do not like it when the Constitution is attacked in this way, but not because the Constitution is perfect. It is far from perfect. Nobody understood that better than Madison, who was at first deeply frustrated by the finished product. Yet when he started to see the criticisms of it, he noticed that they were scattershot, parochial, and sometimes even contradictory. He realized that the choice facing the country was not between the Constitution and some other alternative, but between the Constitution and chaos leading toward disunion.I think the same holds true today. We should respect the Constitution if for no other reason than that it may be the last thing still holding us together. Such respect does not necessitate that we blindly accept the institutions it bequeathed us as they are. But we should thoroughly understand it before we criticize it, because it deserves better than facile straw-man attacks — especially when, as in the case of the Electoral College, there are alternative remedies that could be pursued within its framework.
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