Violating the Constitution that created it

The political left’s responses to Donald Trump’s surprise Electoral College victory has led to many proposed “improvements” in that institution, ironically illustrating one of the main issues determining the outcome — what philosophy would guide judicial appointments.

Trump indicated that he would appoint justices that would honor the Constitution as the supreme law of the land. That would comport with our founders, expressed in Federalist 78, that “It will be the duty of the judicial tribunals … to guard the Constitution and the rights of individuals.” That was at odds with Hillary Clinton’s intent to appoint “living Constitution” jurists, who prefer subsequent judicial interpretations they like over the Constitution itself, whenever they conflict, effectively re-writing the Constitution.

So left-leaning legal scholars have illustrated their preferred means of Constitutional redefinition to produce their desired results via Electoral College “reform” proposals.

Kenneth Jost, author of the Supreme Court Yearbook, argues, “The electoral college is enshrined in the Constitution, but that doesn’t make it constitutional.” He arrives at that internally inconsistent conclusion because “The Supreme Court established the principle — ‘one person, one vote’ — in 1964.” But that is not in the Constitution. It is a much later court invention, now being used retroactively to define part of the Constitution unconstitutional. The fact that our founders did not find that so when they wrote and adopted the Constitution is simply ignored.

University of California, Irvine, Law School Dean Erwin Chemerinsky, a leading liberal Constitutional interpreter, takes the same theme further. He argues that “the text of the Constitution is modified by its amendments,” so the Electoral College allocation of votes should be declared unconstitutional as violating the constitutional amendments [citing the 5th Amendment] that guarantee equal protection of the law.” This, despite the fact that adopters of the Bill of Rights in 1791 clearly found no unconstitutionality in the Electoral College from the 5th Amendment. Neither were earlier examples of popular vote winners who lost in the Electoral College asserted to be unconstitutional. Chemerinsky, as Jost, builds his case not on the Constitution, but upon “The Supreme Court long has held,” followed by some ruling that twists the Constitution and can now be interpreted as at odds with the Electoral College, plus the claim that the redefined constitutional meaning should now trump the Constitution.

Neither of these prominent challenges to the Electoral College relies on the Constitution. Arguments are instead grounded in previous “The Supreme Court has held” rulings that deviated from consistency with the clearly understood original meaning of the Constitution. This is, in fact, such a common approach in “living Constitution” jurisprudence that scholars have even compiled “worst of” lists, such as Robert Levy and William Mellor’s The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom.

Should America be faithful to the Constitution, and the sharply limited federal government of enumerated powers it created to protect our freedoms from abuse at its hands, as the earlier, controlling precedent, or should we accept precedents that have already warped it almost beyond recognition? If the Constitution’s meaning is to be so easily changed (but only when the left finds it amenable to their ends) that even “emanations from penumbras” around other rights can effectively rewrite it, why did our founders spell out such a difficult process for changing it? And why should we respect precedents from 1964 or others years long after America’s establishment, on the basis that the Constitution must be upheld, when those precedents distorted it rather than upheld it? Surely that Alice in Wonderland approach to constitutional meaning is too weak a reed to throw out the Electoral College as violating the Constitution that created it.

Gary M. Galles is a Professor of Economics at Pepperdine University, a Research Fellow at the Independent Institute, an Adjunct Scholar at the Ludwig von Mises Institute and a member of the Foundation for Economic Education Faculty Network. His books include Lines of Liberty (2016), Faulty Premises, Faulty Policies (2014) and Apostle of Peace (2013).

California Coastal Elites Should Beware of Ignoring Inland Struggles

San Francisco, CA, USAWith Donald Trump’s surprising Electoral College victory – 306 to 232 as of November 16 – a lot of focus has been on the angst and anger of voters in so-called “fly over” portions of the country. Regardless of your opinions of now President-elect Trump or former Secretary of State Hillary Clinton, the 2016 Presidential election gave voice to a sizable class of voters who feel either betrayed or forgotten about by our elected leaders.

But sticking out like a sore thumb on the Electoral College map is California. As of November 16, Clinton’s strongest state victory is the Golden State. Moreover, Clinton’s California margin of victory is the best Democratic Presidential nominee performance since President Franklin Roosevelt’s 1936 re-election against then-Kansas Governor Alf Landon. And while she may not reach FDR’s whooping 35-point victory, with 4.1 million votes still left to be counted in California, Clinton will definitely pad her 29-point victory in the same state that launched both President Nixon and President Reagan’s political careers.

It is no wonder, then, that California Assembly Speaker Anthony Rendon and Senate President Pro Tem Kevin De León issued a joint statement following the November 8 election results saying they “woke up feeling like strangers in a foreign land” and that Americans voted in a manner “clearly inconsistent with the values of the people of California.”

While California clearly did reject the political tone and policies of Donald Trump – for instance, Orange County was one of the few counties nationwide to flip from supporting Mitt Romney in 2012 to support Clinton this election year – it may be unwise for California’s political leaders, who as Democrats dominate the Golden State’s one-party rule, to blithely ignore the clear message many in the country sent to Washington, D.C. – they feel left behind and ignored.

Viewing the inland California (i.e. California’s version of “fly over” country) versus coastal California divide forewarns of a possible revolt against the elites here in California if Democratic one-party rule isn’t careful and California Republicans can rehabilitate their image.

The Have’s and the Have-Not’s: Of the coastal California counties, the average unemployment as of September 2016 was 4.8 percent. Moving inland, the average unemployment rate was about 1.5 times higher at 7.4 percent. Even this hides the disparity between the regions. The state’s healthiest job environment is in toney Marin County (3.5 percent), while California’s worst job environment is in the heavily Latino and heavily immigrant Imperial County (23.7 percent). Moreover, coastal California has boomed out of the recession, while inland California is still limping out of it. Average 10 year GDP growth for coastal California has been almost 2 percent per year versus just 0.6 percent per year for their inland neighbors. And these realities directly impact Californians pocketbooks. Based on Tax Year 2013 data, the average adjusted gross income for those living in coastal California is almost 2 times higher than those inland – $33,176 compared to $18,613.

A Not-So-Welcome to (Coastal) California: The above might not be such a detrimental issue for many if there were barrier-less ways to move from inland California to the coastal communities; but that is far from the case – the barriers are indeed quite high. First, coastal housing prices are at 91% of their pre-recession peak averaging just over $677,000. This is in stark comparison to inland California where housing prices are still a quarter below pre-recession levels averaging just under $300,000 – more than half the cost of coastal California. But even renting – long considered the “affordable” option – isn’t actually an option for most: coastal rents are almost twice the level of inland rents. But even if an individual or family bites the bullet and absorbs the higher cost of living into their budgets, they soon will realize that all goods and services are more expensive in coastal California. There is about a 15 percent premium on goods and services in coastal California compared to the national average. For inland California, it’s a 2 percent discount relative the nation as a whole.

At the end of the day, coastal Californians not only have more job opportunities, but those opportunities pay more. And they are sheltered from others since the barriers to entry are high and tenuous. The more California policy reflects the wants and wishes of coastal California, the more likely those living inland will feel left behind or ignored. And 2016 showed that when public policy forgets about the public, unpredictable events can occur.

Carson Bruno is the assistant dean for admission and program relations at the Pepperdine School of Public Policy. Follow him on Twitter @CarsonJFBruno.

Originally published in Real Clear Markets.

New Political Victors Would Arise From National Popular Vote

 

winner-buttonOnce it became clear Donald Trump’s Electoral College triumph would be accompanied by a popular vote loss, USA Today predicted “attempts to kill the Electoral College.” On cue, supporters of the national popular vote (NPV) compact redoubled efforts to effectively do just that.

In the name of advancing democracy and making every vote count, the NPV compact would pledge each adopting state’s electoral votes to whoever received the largest national vote, if states representing 270 or more electoral votes did the same. It would sidestep the rules necessary for constitutional changes, which supporters cannot come close to. Current adopters already represent 165 state electoral votes.

However, NPV’s actual purpose has always been to make Democrats new political victors. NPV doesn’t achieve its supposed core rationale – fixing supposed disenfranchisement of voters in safe states, so “every vote matters.” Further, it would undermine, rather than enhance, the perceived legitimacy of a close election winner. There would always be plausible claims that close races were stolen, since fraud or cheating or other forms of running up the vote anywhere could swing such an election. It could take the Florida Bush-Gore controversy nationwide.

If the real issue was disenfranchisement, states have a constitutional alternative – assigning electoral votes to each district’s winner (plus two to the state winner) rather than winner-take-all. Every district would be reflected in the Electoral College. Yet only two states have adopted it. Most Legislatures have strenuously fought the idea.

District representation could be compromised by gerrymandering, by which politicians supposedly against disenfranchising presidential voters disenfranchise voters in state Legislature and House elections. However, that is not the fault of the Electoral College, but the supposed reformers.

NPV will not make individual votes matter more. Your vote only matters now if it decides your state and your state decides the Electoral College; under NPV, it would only matter if it determined the national popular vote winner. Your personal vote will remain insignificant.

Claiming safe states are ignored is also misguided. Their influence has already been exercised; the dominant party already has the support of a majority. Raising money also forces candidates to be responsive, even in “safe” states.

In fact, NPV is about increasing safe states’ political leverage, because running up votes there could then swing national elections (local media, consultants, etc., would also love the money it would bring). It would give those politicians and their friends clout to extract greater political payoffs. Given that every NPV state went for Hillary Clinton, the real intent is clear. NPV would also increase the leverage of major cities, strongholds of Democratic constituencies and political machines. It is also consistent with adamant Democratic opposition to voter ID requirements and other voter fraud deterrents, which limit their ability run up votes.

In a world without free lunches, however, those favors must come from others’ pockets. Consequently, NPV would effectively disenfranchise those forced to bear the burdens of buying urban and safe state votes.

Disenfranchisement claims also ignore its most important form — subjecting ever more individual decisions to political determination takes away individuals’ rights to make their own decisions. Markets are a democracy where individuals’ votes determine their own outcome. Yet NPV states favor giving government more power to disenfranchise those individual choices, even though preventing that is the essence of liberty.

NPV backers constantly repeat their disenfranchisement refrain. However, they have rejected effective, constitutional solutions. They have intentionally disenfranchised voters through gerrymandering and turned blind eyes to vote fraud. Every increase in enfranchisement they support will increase votes cast “the right way,” increasing the disenfranchisement of others. NPV will not make individual votes matter one iota more. And its advocates continually expand individuals’ disenfranchisement by moving ever-more decisions from them to government.

NPV is not electoral reform. It is a means to enhance the political expropriation of citizens for Democrats and Democrat-favored special interests, camouflaged behind totally misleading rhetoric of advancing democracy.

Gary M. Galles is a Professor of Economics at Pepperdine University, An Adjunct Scholar at the Ludwig von Mises Institute, a Research fellow at the Independent Institute and a member of the Foundation for Economic Education Faculty Network. His books include Apostle of Peace (2013), Faulty Premises, Faulty Policies (2014), and Lines of Liberty (2016)

The End of the Electoral College?

VotedThough it means nothing for 2016, the 2020 presidential election may be decided by popular vote — or at least that’s the timeline given by one of the main proponents.

As it stands now, there really is no national election for president, rather 51 elections (including Washington, D.C.), where electors are doled out by the states/D.C., with the winner needing at least 270 electoral votes.

But most states are a foregone conclusion. Would blue California really go for a Republican? Or would red Mississippi chose a Democrat?

In most instance, no chance, so that gives a disproportionate share of attention by presidential candidates to a relatively small group of states like Florida, Ohio and Virginia.

National Popular Vote is pushing to replace the current race to 270 with a simple majority of the popular vote. Bay Area campaign and election lawyer Barry Fadem, who is working with NPV, says this goal can be achieved by 2020.

How Close Are They, Really?

It may seem like a farfetched idea, but the movement is halfway there. Ten states, including California, have ratified the measure (D.C. has signed on as well). Once enough states have ratified the interstate compact to represent 270 electoral votes — a majority — the county will move to the popular vote.

Last week, the Arizona House of Representatives approved the measure. And although it hasn’t voted yet, two-thirds of the Arizona Senate are sponsors. And there are several other states where at least one chamber has approved.

The way the law is structured, the (Constiutionally-mandated) electors of the states that have ratified the compact would choose the candidate who won the popular vote. Therefore, states that didn’t sign on are free to not participate, but they wouldn’t have enough electoral votes to matter.

The theory is that these states would ultimately fall in line, as they’d then have no incentive to stay under the current system once a majority starts with the popular vote.

Why Go Through This Trouble?

Many voters are still upset that in 2000, Republican George W. Bush beat Democrat Al Gore for president by winning the Electoral College while losing the popular vote. While this is largely Democrats who are upset, supporters of the losing candidate would be sour in any similar situation.

“The disadvantages of the current system, of course, are first that you can have an election where the winner of the popular vote loses the election,” said Norm Ornstein, a resident scholar the right-leaning American Enterprise Institute. “It happened in 2000, without many repercussions, but the next time? Watch out.”

Swing states like Florida, Ohio and Virginia have a disproportionate influence on the general election. There are 12 or so states where candidates spend most of their time because the rest are viewed as forgone conclusions. According to NPV, no campaign events were held by the 2012 presidential candidates outside of these 12 states during the general election.

“Two-thirds of the states now are irrelevant, since they are firmly blue or red, giving all the focus to a small number of competitive ones and distorting the election,” Ornstein.

Downsides

Critics have said that a close election could result in a national recount (“take Florida in 2000 and multiply by 50, with a hundred times the number of lawyers,” said Ornstein), but that the federal government really isn’t equipped to handle a recount of that magnitude.

“The federal government does not conduct elections,” said Kyle Kondik, the managing editor of Sabato’s Crystal Ball, a non-partisan political publication from the University of Virginia’s Center for Politics. “So if there was an election that was so close a recount was required, it would have to be a 50-state recount. That sounds challenging.”

There’s also a concern that attention would shift from swing states to heavily-populated areas, like Los Angeles or New York City, on the theory that time-strapped candidates would plan visits to the densest areas to reach the most people at once.

But NPV contends that the densest cities still only make up a small part of the population. According to Census data, the 30 most heavily-populated cites account for only about 12 percent of the population — nowhere near a majority.

Is It Even Constitutional?

While something that fundamentally changes how the president is elected will likely be challenged in court, Fadem says “a Constitutional amendment is not required,” pointing to language in the Constitution giving each state the right to decide how to direct its electors.

Originally published by CalWatchdog.com