Sam Houston

sam-houston-1

March 2nd is the birthday of Sam Houston. Considered a Texas hero, he is also an American hero as well.

In the years leading up to the Civil War, Houston was a US Senator, and the most controversial issue of his day was slavery. In 1854, Congress introduced the Kansas-Nebraska Act to permit slavery not only in the Kansas-Nebraska area but also in parts of Colorado, Wyoming, Montana, Idaho, North Dakota and South Dakota. 1 In response, over 3,000 clergymen from New England (which was over three-fourths of New England’s clergy) submitted a petition to Congress opposing the Act and its extension of slavery. 2  Numerous pro-slavery U. S. Senators denounced the actions of the ministers, including Senator Stephen Douglas of Illinois who declared:

sam-houston-2
Stephen Douglas

It is evident that [the ministers] ought to be rebuked, and required to confine themselves to their vocation. . . It is an  attempt to establish a theocracy – to take charge of our politics and our legislation. It is an attempt to make the legislative power of this country subordinate to the church. It is not only to unite church and state but it is to put the state in subordination to the dictates of the church. 3

(With this absurd rhetoric, Senator Douglas certainly could easily have worked with modern secularist groups such as Americans United for Separation of Church and State, the Freedom from Religion Foundation, the Military Religious Freedom Foundation, or the American Humanist Association, for these groups say today what Douglas said decades ago.)

Many other Senators, however, took the opposite — the pro-Constitution — position. In fact, Northern Senator Charles Sumner of Massachusetts was just about to stand and defend the ministers when Southern Senator Sam Houston arose and shouted, “Sumner! Don’t speak! Don’t speak! Leave them to me!” 4 Sumner yielded; Houston took the floor and declared:

…I certainly can see no more impropriety in ministers of the Gospel, in their vocation, memorializing [petitioning] Congress than politicians or other individuals. . . . Because they are ministers of the Gospel, they are not disfranchised of political rights and privileges and . . . they have a right to spread their opinions on the records of the nation. . . . The great Redeemer of the World enjoined duties upon mankind; and there is [also] the moral constitution from which we have derived all the excellent principles of our political Constitution – the great principles upon which our government, morally, socially, and religiously is founded. Then, sir, I do not think there is anything very derogatory to our institutions in the ministers of the Gospel expressing their opinions. They have a right to do it. No man can be a minister without first being a man. He has political rights; he has also the rights of a missionary of the Savior, and he is not disfranchised by his vocation. . . . He has a right to interpose his voice as one of its citizens against the adoption of any measure which he believes will injure the nation. . . . [Ministers] have the right to think it is morally wrong, politically wrong, civilly wrong, and socially wrong. . . . and if they denounce a measure in advance, it is what they have a right to do. 5

Sam Houston stood boldly in favor of the free-speech rights of ministers to address any issue the government was also addressing. That constitutional right is just as available today as it was a century and a half ago, and ministers, churches, and people of faith should avail themselves of it.

As we remember our historical heroes such as Sam Houston, we wanted to share with you a document found in WallBuilders extensive library directly related to to this incident. It shows several Senators ordering copies of Houston’s compelling speech so that they could distribute it far and wide.
sam-houston-3


Check out this video!

 


Endnotes

1Houston, Samuel,Biographical Dictionary of the United States Congress, accessed February 24, 2015. See also, “An Act to Organize the Territories of Nebraska and Kansas, 1854;Record Group 11; General Records of the United States Government; National Archives; “Nebraska TrailBlazer,” The Nebraska State Historical Society, No. 6: Nebraska Territory. Robert Edmund Strahom, The Resources and Attractions of Idaho Territory (Bosie City, Idaho: [Omaha Republican Print], 1881), 3.
2 Paulus Presbutes, The United States Review, ed. D.W. Holly (New York: Lloyd and Brainard, 1854), 247, “A Word for the Clergy.”
3 Right of Petition: New England Clergymen, ed. Edward Everett (Washington : Buell & Blanchard, printers, 1854), 3 & 10-11.
4 Alfred Mason Williams, Sam Houston and the War of Independence in Texas (Boston: Houghton, Mifflin, and Company, 1895), 314.
5 The Congressional Globe: Containing the Debates, Proceedings and Laws of the First Session of the Thirty-Third Congress, ed. John C. Rives (Washington, D.C.: John C. Rives, 1854), 28:617-621, March 14, 1854. See also, Right of Petition: New England Clergymen, Edward Everett, editor (Washington : Buell & Blanchard, printers, 1854), 4 & 7.

Celebrating the Constitution

The Convention of 1787 was the capstone in a chain of events that led to the creation of the U.S. Constitution.

celebrating-the-constitution-1America’s first attempt at a national governing document was in 1777 with the Articles of Confederation.1 It went into effect in 1781, but its deficiencies were quickly apparent,2 so in 1786, the Annapolis Convention called for a body to assemble to address its many weaknesses.3 What is known as the Constitutional Convention then gathered in Philadelphia in 1787.4

The debates on the Constitution did not go smoothly at first. In fact, Benjamin Franklin recommended they begin daily prayers to help the process along.5 Eventually they came together to produce the Constitution — the most successful governing document in world history. It was signed on September 17, 1787,6 a day we now celebrate as “Constitution Day.” Many delegates expressed their belief that writing the Constitution would not have been possible without the Divine aid they personally witnessed and openly acknowledged. Alexander Hamilton said:

For my own part, I sincerely esteem it a system which without the finger of God never could have been suggested and agreed upon by such a diversity of interests.7

celebrating-the-constitution-2James Madison agreed:

It is impossible for the man of pious reflection not to perceive in it the finger of the Almighty Hand which has been so frequently and signally extended to our relief in the critical stages of the Revolution.8

Benjamin Franklin and George Washington also expressed similar convictions.9

celebrating-the-constitution-3Many delegates involved with writing the Constitution were trained in theology or ministry,10 including Abraham Baldwin, James Wilson, Hugh Williamson, Oliver Ellsworth and others. The Constitution was then sent to the states to be ratified,11 and about four dozen clergymen were elected from among the various states as delegates to ratify the Constitution.12 The influence of Biblical faith on that document was apparent, and under it, Americans have been blessed!

As President Calvin Coolidge affirmed:

celebrating-the-constitution-4[T]he more I study [the Constitution], the more I have come to admire it, realizing that no other document devised by the hand of man ever brought so much progress and happiness to humanity.13 To live under the American Constitution is the greatest political privilege that has ever occurred to the human race.14

Because the Constitution is such a unique and remarkable document, federal law requires that every year on Constitution Day, all public schools must hold a special program on the Constitution;15 sadly, few schools follow this law. But that should not keep every citizen from celebrating that document. Each of us should read and know that document, and teach it to others. So read the Constitution for yourself, and check out these resources that can be used in public schools to teach the Constitution on Constitution Day.16 Share this information with schools, educators, and students around you!


Endnotes

1 “Articles of Confederation: Primary Documents in American History,” Library of Congress, accessed December 13, 2023.
2 See, for example, “Policies and Problems of the Confederation Government,” Library of Congress, accessed December 13, 2023; “Defencies of the Confederation,” The Founders Constitution.
3 “Appendix A: The Annapolis Convention,” Soldier-Statesmen of the Constitution (Washington, DC: Center of Military History, 1987), 265.
4 “The Constitution: How Did it Happen?” National Archives, accessed December 13, 2023.
5 James Madison’s Notes on the Convention, June 28, 1787, Max Farrand, The Records of the Federal Convention of 1787 (New Haven: Yale University Press, 1911), I:450-452.
6 “Constitution of the United States: Primary Documents in American History,” Library of Congress, accessed December 13, 2023.
7 Alexander Hamilton to Mr. Childs, Wednesday, October 17, 1787, The Federalist and Other Contemporary Papers on the Constitution of the United States, ed. E.H. Scott (New York: Scott, Foresman and Company, 1894), 646.
8 James Madison, Federalist #37, Alexander Hamilton, John Jay, & James Madison, The Federalist (Philadelphia: Benjamin Warner, 1818), 194.
9 Benjamin Franklin, “A Comparison of the Conduct of the Ancient Jews and of the Anti-Federalists in the United States of America,” The Works of Benjamin Franklin, ed. Jared Sparks (Boston: Tappan, Whittemore, and Mason, 1837), V:162; George Washington to Marquis de Lafayette, February 7, 1788, The Writings of George Washington, ed. Jared Sparks (Boston: Russell, Odiorne, and Metcalf, 1835), IX:317.
10 See WallBuilders article, “No Professor Fea, the Founders Did Not Want Ministers to Stay out of Politics.”
11 “Observing Constitution Day,” National Archives, accessed December 13, 2023.
12 See WallBuilders article, “No Professor Fea, the Founders Did Not Want Ministers to Stay out of Politics.”
13 Harry Atwood, “The Constitution Week Movement,” The Constitutional Review (October 1929), XIII:4:181.
14 James M. Beck, “What is the Constitution?” Our World Weekly (March 16, 1925), II:7:102.
15 “Constitution Day and Citizenship Day,” US Code.
16 “Constitution Day Teacher Resources,” Library of Congress; “Teachers Guide: Commemorating Constitution Day,” National Endowment for the Humanities; “Commemorating Constitution Day and Citizenship Day,” US Department of Education.

A Godless Constitution?: A Response to Kramnick and Moore

In their provocative polemic The Godless Constitution: The Case Against Religious Correctness (W. W. Horton, 1996), Cornell University professors Isaac Kramnick and R. Laurence Moore argue that the God-fearing framers of the U. S. Constitution “created an utterly secular state” unshackled from the intolerant chains of religion. They purportedly find evidence for this thesis in the constitutional text, which they describe as radically “godless” and distinctly secular. Their argument, while an appealing antidote to the historical assertions of the religious right, is superficial and misleading.

There were, indeed, anti-Federalist critics of the Constitution who complained bitterly that the document’s failure to invoke the Deity and include explicit Christian references indicated, at best, indifference or, at worst, hostility toward Christianity. This view, however, did not prevail in the battle to ratify the Constitution. The professor’s inordinate reliance on the Constitution’s most vociferous critics to describe and define that document results in misleading, if not erroneous, conclusions. Furthermore, like the extreme anti-Federalists of 1787, the professors misunderstand the fundamental nature of the federal regime and its founding charter.

The U. S. Constitution’s lack of a Christian designation had little to do with a radical secular agenda. Indeed, it had little to do with religion at all. The Constitution was silent on the subject of God and religion because there was a consensus that, despite the framer’s personal beliefs, religion was a matter best left to the individual citizens and their respective state governments (and most states in the founding era retained some form of religious establishment). The Constitution, in short, can be fairly characterized as “godless” or secular only insofar as it deferred to the states on all matters regarding religion and devotion to God.

Relationships between religion and civil government were defined in most state constitutions, and the framers believed it would be inappropriate for the federal government to encroach upon or usurp state jurisdiction in this area. State and local governments, not the federal regime, it must be emphasized, were the basic and vital political units of the day. Thus, it was fitting that the people expressed religious preferences and affiliations through state and local charters.

Professors Kramnick and Moore find further evidence for a godless Constitution in the Article VI religious test ban. Here, too, they misconstrue the historical record. Their argument rests on the false premise that, in the minds of the framers, support for the Article VI ban was a repudiation of state establishments of religion and a ringing endorsement of a radically secular polity. The numerous state constitutions written between 1776 and 1787 in which sweeping religious liberty and nonestablishment provisions coexisted with religious test oaths confirm the poverty of this assumption. The founding generation, in other words, generally did not regard such measures as incompatible.

The Article VI ban (applicable to federal officeholders only) was not driven by a radical secular agenda or a renunciation of religious tests as a matter of principle. The fact that religious tests accorded with popular wishes is confirmed by their inclusion in the vast majority of revolutionary era state constitutions.

Professors Kramnick and Moore also blithely ignore Article I, sec. 2 of the U. S. Constitution, which deferred to state qualifications for the electors of members of the U. S. House of Representatives. This provision is significant since the constitutional framers of 1787 knew that in some states–such as South Carolina–the requisite qualifications for suffrage included religious belief.

Significantly, there were delegates at the Constitutional Convention in Philadelphia who endorsed the Article VI ban but had previously crafted religious tests for their respective state constitutions. The constitutional framers did not appreciate this apparent contradiction, which arises under a secular construction of Article VI. The framers believed, as a matter of federalism, that the Constitution denied the national government all jurisdiction over religion, including the authority to administer religious tests. Many in founding generation supported a federal test ban because they valued religious tests required under state laws, and they feared that a federal test might displace existing state test oaths and religious establishments. In other words, support for the Article VI ban was driven in part by a desire to preserve and defend the instruments of “religious establishment” (specifically, religious test oaths) that remained in the states.

The late-eighteenth-century view of oaths and religious test bans is illustrated in state constitutions of the era. The Tennessee Constitution of 1796 included the language of the Article VI test ban; however, the same constitution states that “no person who denies the being of God, or a future state of rewards and punishments, shall hold any office in the civil department of this State.” Adopting a standard definition of oaths, the Kentucky Constitution of 1792, which omitted an express religious test but prescribed a basic oath of office, stated that required oaths and affirmations “shall be esteemed by the legislature [as] the most solemn appeal to God.” This understanding of oaths, which was largely unchallenged in the founding era and frequently repeated in the state ratifying conventions, suggests that the US Constitution, contrary to Professors Kramnick and Moore, was not entirely devoid of religious affirmations and did not create an utterly secular polity. The argument was made in ratifying conventions that the several constitutionally required oaths implicitly countenanced an acknowledgment of God (which, in a sense, constituted a general, nondenominational religious “test”), while the Article VI test ban merely proscribed sect-specific oaths for federal officeholders.

The debates in Article VI in state ratifying conventions further indicate that few, if any, delegates denied the advantage of placing devout Christians in public office. The issue warmly debated was the efficacy of a national religious test for obtaining this objective.

The Godless Constitution’s lack of clear documentation is a disappointment. In order to examine the book’s thesis more fully, I attempted to document the claims and quotations in the second chapter, which sets forth the case that the “principal architects of our national government envisioned a godless Constitution and a godless politics.” It was readily apparent why these two university professors, who live in the world of footnotes, avoided them in this tract. The book is replete with misstatements or mischaracterizations of fact and garbled quotations. For example, the professors conflate two separate sections of New York Constitution of 1777 to support the claim that it “self-consciously repudiated tests” (p. 31). Contrary to this assertion, neither constitutional section expressly mentions religious tests and, indeed, test oaths were retained in the laws of New York well into the nineteenth century. The Danbury Baptists, for another example, did not ask Jefferson to designate “a fast day for national reconciliation” (pp.97, 119).

The book illustrates what is pejoratively called “law office history.” That is, the authors, imbued with the adversary ethic, selectively recount facts, emphasizing data that support their own prepossessions and minimizing significant facts that complicate or conflict with their biases. The professors warn readers of this on the second page when they describe their book as a “polemic” that will ” lay out the case for one” side of the debate on the important “role of religion in public and political life.”

The suggestion that the U. S. Constitution is godless because it makes only brief mention of the Deity and Christian custom is superficial and misguided. Professors Kramnick and Moore succumb to the temptation to impose twentieth-century values on eighteenth-century text. Their book is less an honest appraisal of history than a partisan tract written for contemporary battles. They frankly state their desire that this polemic will rebut the “Christian nation” rhetoric of the religious right. Unfortunately, their historical analysis is as specious as the rhetoric they criticize.

Copyright 1997 by Daniel L. Dreisbach. All rights reserved. Used by permission of the author.

Daniel L. Dreisbach, D. Phil. (Oxford University) and J. D. (University of Virginia), is an associate professor at American University in Washington, D. C.. He is the author of Religion and Politics in the Early Republic (University Press of Kentucky, 1996), and Real Threat and Mere Shadow: Religious Liberty and the First Amendment (Crossway Books, 1987).

SUGGESTED READING

Dreisbach, Daniel, L. Thomas Jefferson and the Wall of Separation Between Church and State (NYU Press, 2003).

“‘Sowing Useful Truths and Principles’: The Danbury Baptists, Thomas Jefferson, and the ‘Wall of Separation.'” Journal of Church and State 39 (Summer 1997).

“In Search of a Christian Commonwealth: An Examination of Selected Nineteenth-Century Commentaries on References to God and the Christian Religion in the United States Constitution.” Baylor Law Review 48 (1996): 927-1000.

“The Constitution’s Forgotten Religion Clause: Reflections on the Article VI Religious Test Ban.” Journal of Church and State 38 (1996): 261-295.

Republic v. Democracy

Founders & Democracy

We have grown accustomed to hearing that we are a democracy; such was never the intent. The form of government entrusted to us by our Founders was a republic, not a democracy. 1 Our Founders had an opportunity to establish a democracy in America and chose not to. In fact, the Founders made clear that we were not, and were never to become, a democracy:

[D]emocracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have, in general, been as short in their lives as they have been violent in their deaths. 2 James Madison

Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide. 3 John Adams

A democracy is a volcano which conceals the fiery materials of its own destruction. These will produce an eruption and carry desolation in their way. 4 The known propensity of a democracy is to licentiousness [excessive license] which the ambitious call, and ignorant believe to be liberty. 5 Fisher Ames, Author of the House Language for the First Amendment

We have seen the tumult of democracy terminate . . . as [it has] everywhere terminated, in despotism. . . . Democracy! savage and wild. Thou who wouldst bring down the virtuous and wise to thy level of folly and guilt. 6 Gouverneur Morris, Signer and Penman of the Constitution

[T]he experience of all former ages had shown that of all human governments, democracy was the most unstable, fluctuating and short-lived. 7 John Quincy Adams

A simple democracy . . . is one of the greatest of evils. 8 Benjamin Rush, Signer of the Declaration

In democracy . . . there are commonly tumults and disorders. . . . Therefore a pure democracy is generally a very bad government. It is often the most tyrannical government on earth. 9 Noah Webster

Pure democracy cannot subsist long nor be carried far into the departments of state, it is very subject to caprice and the madness of popular rage. 10 John Witherspoon, Signer of the Declaration

It may generally be remarked that the more a government resembles a pure democracy the more they abound with disorder and confusion. 11 Zephaniah Swift, Author of America’s First Legal Text

Many Americans today seem to be unable to define the difference between the two, but there is a difference, a big difference. That difference rests in the source of authority.

Democracy & Republic Definitions

A pure democracy operates by direct majority vote of the people.

When an issue is to be decided, the entire population votes on it; the majority wins and rules. A republic differs in that the general population elects representatives who then pass laws to govern the nation. A democracy is the rule by majority feeling (what the Founders described as a “mobocracy” 12; a republic is rule by law. If the source of law for a democracy is the popular feeling of the people, then what is the source of law for the American republic? According to Founder Noah Webster:

[O]ur citizens should early understand that the genuine source of correct republican principles is the Bible, particularly the New Testament, or the Christian religion. 13

The American Republic

The transcendent values of Biblical natural law were the foundation of the American republic. Consider the stability this provides: in our republic, murder will always be a crime, for it is always a crime according to the Word of God. however, in a democracy, if majority of the people decide that murder is no longer a crime, murder will no longer be a crime.

America’s immutable principles of right and wrong were not based on the rapidly fluctuating feelings and emotions of the people but rather on what Montesquieu identified as the “principles that do not change.” 14

Benjamin Rush similarly observed:

[W]here there is no law, there is no liberty; and nothing deserves the name of law but that which is certain and universal in its operation upon all the members of the community. 15

In the American republic, the “principles which did not change” and which were “certain and universal in their operation upon all the members of the community” were the principles of Biblical natural law. In fact, so firmly were these principles ensconced in the American republic that early law books taught that government was free to set its own policy only if God had not ruled in an area. For example, Blackstone’s Commentaries explained:

To instance in the case of murder: this is expressly forbidden by the Divine. . . . If any human law should allow or enjoin us to commit it we are bound to transgress that human law. . . . But, with regard to matters that are . . . not commanded or forbidden by those superior laws such, for instance, as exporting of wool into foreign countries; here the . . . legislature has scope and opportunity to interpose. 16

The Founders echoed that theme:

All [laws], however, may be arranged in two different classes. 1) Divine. 2) Human. . . . But it should always be remembered that this law, natural or revealed, made for men or for nations, flows from the same Divine source: it is the law of God. . . . Human law must rest its authority ultimately upon the authority of that law which is Divine. 17 James Wilson, Signer of the Constitution; U. S. Supreme Court Justice

[T]he law . . . dictated by God Himself is, of course, superior in obligation to any other. It is binding over all the globe, in all countries, and at all times. No human laws are of any validity if contrary to this. 18Alexander Hamilton, Signer of the Constitution

[T]he . . . law established by the Creator . . . extends over the whole globe, is everywhere and at all times binding upon mankind. . . . [This] is the law of God by which he makes his way known to man and is paramount to all human control. 19 Rufus King, Signer of the Constitution

Conclusion

The Founders understood that Biblical values formed the basis of the republic and that the republic would be destroyed if the people’s knowledge of those values should ever be lost.

A republic is the highest form of government devised by man, but it also requires the greatest amount of human care and maintenance. If neglected, it can deteriorate into a variety of lesser forms, including a democracy (a government conducted by popular feeling); anarchy (a system in which each person determines his own rules and standards); oligarchy (a government run by a small council or a group of elite individuals): or dictatorship (a government run by a single individual). As John Adams explained:

[D]emocracy will soon degenerate into an anarchy; such an anarchy that every man will do what is right in his own eyes and no man’s life or property or reputation or liberty will be secure, and every one of these will soon mould itself into a system of subordination of all the moral virtues and intellectual abilities, all the powers of wealth, beauty, wit, and science, to the wanton pleasures, the capricious will, and the execrable [abominable] cruelty of one or a very few. 20

Understanding the foundation of the American republic is a vital key toward protecting it.


Endnotes

1 An example of this is demonstrated in the anecdote where, having concluded their work on the Constitution, Benjamin Franklin walked outside and seated himself on a public bench. A woman approached him and inquired, “Well, Dr. Franklin, what have you done for us?” Franklin quickly responded, “My dear lady, we have given to you a republic–if you can keep it.” Taken from “America’s Bill of Rights at 200 Years,” by former Chief Justice Warren E. Burger, printed in Presidential
Studies Quarterly
(Summer 1991), XXI:3:457. This anecdote appears in numerous other works as well.

2 Alexander Hamilton, John Jay, James Madison, The Federalist on the New Constitution (Philadelphia: Benjamin Warner, 1818), 53, #10, James Madison.

3 John Adams to John Taylor, April 15, 1814, The Works of John Adams, ed. Charles Francis Adams (Boston: Charles C. Little and James Brown, 1850), VI:484.

4 Fisher Ames, Speech on Biennial Elections, delivered January, 1788, Works of Fisher Ames (Boston: T. B. Wait & Co., 1809), 24.

5 Ames, “The Dangers of American Liberty,” February 1805, Works (1809), 384.

6 Gouverneur Morris, An Oration Delivered on Wednesday, June 29, 1814, at the Request of a Number of Citizens of New-York, in Celebration of the Recent Deliverance of Europe from the Yoke of Military Despotism (New York: Van Winkle and Wiley, 1814), 10, 22.

7 John Quincy Adams, The Jubilee of the Constitution. A Discourse Delivered at the Request of the New York Historical Society, in the City of New York on Tuesday, the 30th of April 1839; Being the Fiftieth Anniversary of the Inauguration of George Washington as President of the United States, on Thursday, the 30th of April, 1789 (New York: Samuel Colman, 1839), 53.

8 Benjamin Rush to John Adams, July 21, 1789, The Letters of Benjamin Rush, ed. L. H. Butterfield (Princeton: Princeton University Press for the American Philosophical Society, 1951), I:523.

9 Noah Webster, The American Spelling Book: Containing an Easy Standard of Pronunciation: Being the First Part of a Grammatical Institute of the English Language, To Which is Added, an Appendix, Containing a Moral Catechism and a Federal Catechism (Boston: Isaiah Thomas and Ebenezer T. Andrews, 1801), 103-104.

10 John Witherspoon, Lecture 12 on Civil Society, The Works of John Witherspoon (Edinburgh: J. Ogle, 1815), VII:101.

11 Zephaniah Swift, A System of the Laws of the State of Connecticut (Windham: John Byrne, 1795), I:19.

12 See, for example, Benjamin Rush to John Adams, January 22, 1789, Letters, ed. Butterfield (1951), I:498.

13 Noah Webster, History of the United States (New Haven: Durrie & Peck, 1832), 6.

14 George Bancroft, History of the United States from the Discovery of the American Continent (Boston: Little, Brown & Co., 1859), V:24; Baron Charles Secondat de Montesquieu, Spirit of the Laws (Philadelphia: Isaiah Thomas, 1802), I:17-23, and ad passim.

15 Rush to David Ramsay, March or April 1788, Letters, ed. Butterfield (1951), I:454.

16 William Blackstone, Commentaries on the Laws of England (Philadelphia: Robert Bell, 1771), I:42-43.

17 James Wilson, “Of the General Principles of Law and Obligation,” The Works of the Honorable James Wilson, ed. Bird Wilson (Philadelphia: Lorenzo Press, 1804), I:103-105.

18 Alexander Hamilton, The Papers of Alexander Hamilton, ed. Harold C. Syrett (New York: Columbia University Press, 1961), I:87, February 23, 1775, quoting Blackstone, Commentaries (1771), I:41.

19 Rufus King to C. Gore, February 17, 1820, The Life and Correspondence of Rufus King, ed. Charles R. King (New York: G. P. Putnam’s Sons, 1900), VI:276.

20 John Adams, The Papers of John Adams, ed. Robert J. Taylor (Cambridge: Belknap Press, 1977), I:83, from “An Essay on Man’s Lust for Power, with the Author’s Comment in 1807,” written on August 29, 1763, but first published by John Adams in 1807.

Judges: Should they be Elected or Appointed?

Some states have recently considered proposals that would abolish the election of State judges and replace it with a system of appointed judges who would face periodic retention elections. While supporters of this plan argue that retention elections will keep judges accountable to the voters, it is irrefutable that this plan will give judges a level of insulation from the public they have never before experienced and make them more unaccountable than ever before. The folly of this proposal is made clear both by history as well as the lessons of other States that have adopted such a plan.

From a historical perspective, the Founders of our country held succinct opinions on this issue. For example, two centuries ago when the colonists declared themselves independent from Great Britain and had opportunity to create their own governments, they promptly incorporated into America new and important judicial principles – of which the 1780 Massachusetts Constitution was typical in declaring:

All power residing originally in the people and being derived from them, the several magistrates and officers of government vested with authority – whether Legislative, Executive, or Judicial – are their substitutes and agents and are at all times accountable to them. [1] (emphasis added)

The Framers feared tyranny from the judiciary more than from the other two branches, so they placed deliberate limitations on the judiciary. As a result, the Federalist Papers reported that under their plan, “the Judiciary is beyond comparison the weakest of the three departments of power. . . . [and] the general liberty of the people can never be endangered from that quarter.” [2]

As part of that plan, the Framers took care to ensure that judges were accountable to the people at all times. Although federal judges were appointed and did not face election, the Founders made certain that federal judges would be easily removable from office through impeachment, a procedure that today is widely misunderstood and rarely used. While the current belief is that a judge may be removed only for the commission of a criminal offense or the violation of a statutory law, [3] it was not this way at the beginning. As Alexander Hamilton explained, “the practice of impeachments was a bridle” [4] — a way to keep judges accountable to the people. And what did the Framers believe were impeachable offenses? According to Justice Joseph Story, a “Father of American Jurisprudence”:

The offences to which the power of impeachment has been and is ordinarily applied. . . . are what are aptly termed political offences, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests. [5]

Under the Framers, impeachment occurred whenever a judge attempted to carry a personal agenda through the court; but today impeachment has become what Justice Story warned that it should never be: a power “so weak and torpid as to be capable of lulling offenders into a general security and indifference.” [6] The federal judiciary, because it now enjoys a level of insulation from the people that the Framers never intended and to which they today would vehemently object, is unafraid to reshape American culture and policy to mirror its own political whims and personal values.

Judges given increased levels of protection from the public feel freer to advance personal agendas, often manifesting the view expressed by Supreme Court Justice Benjamin Cardozo who declared that:

I take judge-made law as one of the existing realities of life. [7]

Americans should not have to fear “judge-made laws” as a reality of life. We elect our legislators to make our laws, and those states that elect judges elect them to apply those laws. If these states reject a system of accountable judges, they undoubtedly will face the same arrogance now so evident on the federal level – as when Supreme Court Chief-Justice Charles Evans Hughes declared:

We are under a Constitution, but the Constitution is what the judges say it is. [8]

Since the proclivity to reshape culture and values is so frequently displayed by unaccountable judges, why would a state want to adopt such a system? In fact, why would anyone even propose a system to give additional insulation to judges? Because – proponents answer – for judges to campaign to win the votes of citizens makes the judiciary a “political” branch and weakens the so-called “independence” of the judiciary. Yet, as Thomas Jefferson wisely observed:

It should be remembered as an axiom of eternal truth in politics that whatever power in any government is independent is absolute also. . . . Independence can be trusted nowhere but with the people in mass. [9]

And is anyone really so naivé as to believe that the current appointed “independent” federal judiciary has not become a political branch? As Jefferson had warned:

Our judges are as honest as other men and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. . . . [A]nd their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. [10]

Contrary to what is asserted by the proponents of appointed judges and retention elections, for judges to campaign and win voter support actually prevents the judiciary from becoming a political branch because citizens can then insist that judges confine themselves to their constitutional roles rather than implement their own political agendas.

Another benefit of the direct elections of judges is the competition that occurs between candidates. In contested races, judicial candidates make public the beliefs of their opponents, thus allowing citizens the opportunity to make informed decisions about those whom they want to sit on the bench. On the other hand, if an individual is appointed rather than elected, his personal beliefs might remain unknown to the public until they manifest themselves in harmful judicial decisions. Furthermore, these appointed judges would have at least four uninterrupted, unrestrained years before they would face voters for the first time in a retention election – and even at that time, there would be no opponent to remind voters of egregious decisions.

Those proposing retention elections are not improving State government. Instead, they are violating one of its most sacred principles: they are removing power from the people — something to which Thomas Jefferson strenuously objected:

The exemption of the judges from that [from election] is quite dangerous enough. I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them [the people] not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it [control] from them, but to inform their discretion by education. [11]

Jefferson further declared:

[I]t is necessary to introduce the people into every department of government. . . . Were I called upon to decide whether the people had best be omitted in the legislative or judiciary department, I would say it is better to leave them out of the legislative. The execution of the laws is more important than the making of them. [12]

Understanding that “the execution of the laws is more important than the making of them,” many of our earliest statesmen supported the election of State judges. For example, Noah Webster, himself a judge and the man responsible for Article 1, Section 8, 8 of the U. S. Constitution, declared:

[M]en elected to office should be able men, men of talents equal to their stations, men of mature age, experience and judgment; men of firmness and impartiality. This is particularly true with regard to men who constitute tribunals of justice – the main bulwark of our rights. [13]

In addition to these historical lessons, recent experiences demonstrate that in States with an appointed judiciary, judges are quite comfortable in exerting political influence rather than simply upholding and applying State laws.

For example, in the 2002 election, the appointed New Jersey Supreme Court reviewed the State law declaring that a candidate’s name may be replaced on the ballot only if the “vacancy shall occur not later than the 51st day before the general election” and somehow decided that the 35th day before the election fulfilled the same legal requirements as the 51st day before the election. (Recall that the Democrat candidate was lagging far behind his Republican opponent in the polls; the Democrats convinced the unelected judges to place a more viable candidate on the ballot – in violation of the State law – and Democrats therefore won a U. S. Senate seat they were destined to lose.)

And who can forget the appointed Florida Supreme Court in the 2000 presidential election? Even though State law declared that all election vote tallies were to be submitted to the Secretary of State’s office by 5 PM on the 7th day following the election, and that results turned in past that time were to be ignored, those judges ruled that 5 PM on the 7th day really meant 5 PM on the 19th day, and that the word “ignored” really meant just the opposite – that the Secretary of State must accept all results, even those that did not comply with the law.

Judges facing regular elections would not have rendered decisions that ignored such clear legislative language (not to mention basic math or the common meaning of words). Elected judges know that if they make such agenda-driven decisions, they will face a plethora of opponents in their next race who will remind voters of their demonstrated contempt for State law.

Arrogant, elitist proposals that judges should be protected from citizens in this day of rampant judicial political agendas is unthinkable in our free society. History is too instructive on the necessity of direct judicial accountability for its lessons to be ignored today. And while judicial accountability through the use of impeachment on the federal level appears to be a thing of the past, judicial accountability through the direct election of State judges should not be.


Footnotes

[1] A Constitution or Frame of Government Agreed Upon by the Delegates of the People of the State of Massachusetts-Bay (Boston: Benjamin Edes & Sons, 1780), 9, Massachusetts, 1780, Part I, Article V.

[2] Alexander Hamilton, Federalist #78, Alexander Hamilton, John Jay, James Madison, The Federalist on the New Constitution (Philadelphia: Benjamin Warner, 1818), 419-420; Hamilton, Federalist #73, The Federalist (1818), 398.

[3] See, for example, Irving Brant, Impeachment: Trials & Errors (New York: Alfred Knopf, 1972); Warren S. Grimes, who argues that impeachment is a relic of the past and should be abandoned in his “Hundred-Ton-Gun Control: Preserving Impeachment as the Exclusive Removal Mechanism for Federal Judges,” UCLA Law Review (June 1991), 1254; U.S. v. Carol Bayless, 95 Cr. 533 (S.D. NY, 1996); the joint statement issued by current and former chief-judges of the United States Court of Appeals for the Second Circuit in response to widespread calls from several public officials for the impeachment of federal judge Frank Baer, Jr., March 28, 1996; Fort Worth Star Telegram, April 14, 1996, C-5, “Judicial Independence” by David Broder, writer for The Washington Post.

[4] Alexander Hamilton, Federalist #65, The Federalist (1818), 353.

[5] Joseph Story, Commentaries on the Constitution of the United States (Boston: Hilliard, Gray and Company, 1833), II:233-234, § 762.

[6] Story, Commentaries (1833) II:218, § 745.

[7] Benjamin Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921), 10.

[8] Charles Evans Hughes, speech at Elmira on May 3, 1907, The Autobiographical Notes of Charles Evans Hughes, eds. David J. Danelski & Joseph S. Tulchin (Cambridge: Harvard University Press, 1973), 144.

[9] Thomas Jefferson to Judge Spencer Roane, September 6, 1819, Writings of Thomas Jefferson, ed. Albert Ellery Bergh (Washington, D. C.: The Thomas Jefferson Memorial Association, 1904), XV:213 214.

[10] Jefferson to William Charles Jarvis, September 28, 1820, Writings, ed. Bergh (1904), XV:277.

[11] Jefferson to William Charles Jarvis, September 28, 1820, Writings, ed. Bergh (1904), XV:278.

[12] Jefferson to M. L’Abbe Arnoud, July 19, 1789, Writings, ed. Bergh (1904), VII:422-423.

[13] Noah Webster, A Collection of Papers on Political, Literary, and Moral Subjects (New York: Webster & Clark, 1843), 303, Chapter XV.

Electoral College: Preserve or Abolish?

The Call for Change

Although groups like the League of Women Voters have long supported the abolition of the electoral college,1 the protracted proceedings in Florida as well as the apparent disparity between the popular and the electoral college vote have further fueled calls to abolish the electoral college. Critics urge a replacement of the electoral college with a straightforward nationwide popular vote system; and if needed, a national run-off between the top two candidates so that the winner will always receive an absolute majority of the popular vote.2 An advocate of this plan, the Center for Voting and Democracy, explains:

[I]t’s time once again to consider replacing the electoral college with direct election. To assure a real majority winner, a much better solution than a simple plurality vote or keeping the electoral college would be to adopt instant runoff voting, a majority vote system.3

Another advocate for the abolition of the electoral college, Citizens for True Democracy, asserts:

  • The electoral college is outdated and anti-democratic. America deserves truly representative presidential elections, in which all votes have equivalent values. A constitutional amendment replacing the electoral college with a simple popular vote would be most effective.4
  • The electoral college is a disastrous institution. It. . . . is unfair, inaccurate, and unaccountable. Its abolition is the only path to a true American democracy.5

Others have joined this call,6 and, in sympathy with their view, Senator Hillary Clinton has promised to introduce in the Senate a constitutional amendment to abolish the electoral college — a movement already supported by Democrat Senator Dick Durbin and Republican Senators John Warner and Arlen Spector — and an action parallel to that already undertaken in the House of Representatives by Republicans Ray Lahood and Jim Leach and Democrats Robert Wise, Dick Gephardt, Rick Boucher, Virgil Goode, and Robert Underwood. Such an amendment would eliminate several extensive parts of the Constitution, including Article II, Section 1, ¶ 2, 4, and portions of the 12th, the 20th, and the 23rd Amendments.

The current rhetoric calling for an end to the electoral college frequently reveals a misunderstanding of the purpose of the college as well as the safeguards it provides and the interests it protects. Therefore, a brief review of the college is appropriate before any informed discussion about its abolition should proceed.

The Constitutional Basis for the Electoral College

The provisions originally established in the Constitution regarding the electoral college have been substantially altered three times in accordance with the provisions laid out in Article V of the Constitution providing for its own amendment. The first was in 1804 with the 12th Amendment, the second was in 1933 with the 20th Amendment, and the third was in 1961 with the 23th Amendment. Therefore, the current constitutional provisions on the electoral college stipulate:

Each State shall appoint, in such manner as the Legislature thereof may direct, a number of electors equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative or person holding an office of trust or profit under the United States shall be appointed an elector. Article ii, Section 1, ¶ 2

The Congress may determine the time of choosing the electors and the day on which they shall give their votes; which day shall be the same throughout the United States. Article ii, Section 1, ¶ 4

The electors shall meet in their respective States and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves; they shall name in their ballots the person voted for as President and in distinct ballots the person voted for a Vice-President, and they shall make distinct lists of all persons voted for as President and of all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; — The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; — The person having the greatest number of votes for President shall be the President, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice. . . . [The section here deleted was superceded by provisions of the 20th Amendment]. . . . The person having the greatest number of votes as Vice-President shall be the Vice-President, if no such number be a majority of the whole number of electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. Constitution, Amendment xii

If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President-elect shall have failed to qualify, then the Vice-President-elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President-elect not a Vice-President-elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act according until a President or Vice-President shall have qualified. Constitution, Amendment xx

The District constituting the seat of government of the United States [Washington, D. C.] shall appoint in such manner as the Congress may direct: a number of electors of President and Vice-President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice-President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment. Constitution, Amendment xxiii

The Current Electoral College Procedure

With Article II directing that the number of electors correspond exactly with the numbers in the Congress (100 electors representing the Senate and 435 additional electors representing the House), and with the 23rd Amendment directing that the District of Columbia shall receive the same number of electors as the least populous State (3 electors), there are therefore a total of 538 presidential electors. These electors are distributed among the States according to the total number of U. S. Senators and U. S. Representatives in each State (e.g., California has 54 electors, Texas 32, Iowa 7, Wisconsin 11, etc.). A candidate for president must obtain an absolute majority of the electoral votes — 270 — in order to attain the presidency.

The popular vote in each State directs the electors of that State how to cast their vote for President. In most States, whichever candidate wins the popular vote in that State wins all of that State’s electors; but since the manner of choosing a State’s electors is left by the Constitution to each State, different States, not surprisingly, have different rules. For example, in Maine and Nebraska, the winner does not take all; rather, the candidate who wins the popular vote in each congressional district wins the electoral vote from that congressional district, and the candidate who wins the entire State receives the State’s two remaining electoral votes.

The presidential electors are usually selected in each State at the same time that each political party in that State determines its presidential candidate. That is, when a State party selects its presidential nominee it also designates a slate of electors. These electors, along with the party’s nominees for president and vice-president, are submitted to the chief election official in the State. Thus, in each State there is a slate of Republican electors, Democrat electors, Green Party electors, Reform Party electors, etc., and the candidate that wins the popular vote in that State will have the electors from his or her own political party cast the electoral votes for that State. As constitutional scholar William Rawle explained in his classic 1825 commentaries on the Constitution:

[T]he electors do not assemble in their several States for a free exercise of their own judgments, but for the purpose of electing the particular candidate who happens to be preferred by the predominant political party which has chosen those electors.7

Since the Constitution directs that Congress shall set the time that the electors shall meet to cast their votes, federal law currently stipulates that electors assemble following the presidential election on the first Monday after the second Wednesday in December. On that day, the electors for each State gather in their respective State capitols and each elector marks a ballot indicating his choice for president and his choice for vice-president. These ballots are certified by State authorities and are then transmitted to the President of the U. S. Senate (the Vice-President of the United States), who will open and tabulate the ballots before a joint session of Congress.

If a presidential candidate receives an absolute majority of electoral votes, that candidate becomes the President and will be sworn into office on noon, January 20th. If no candidate receives an absolute majority, as happened in the 1824 election when the electoral votes were split among four candidates, or if there should be a tie (if, for example, two candidates each received 269 votes), then the House of Representatives chooses the President from among the top three contenders, with each State being allotted only one vote on behalf of its State, regardless of the size of its congressional delegation. The Senate chooses the Vice-President in a similar manner.

What Led to the Formation of the Electoral College?

During the Constitutional Convention, three proposals were originally discussed by the framers on how the president could be elected. Interestingly, those three proposals were rejected. †

The first proposal was to allow Congress to select the president. This idea was rejected for three reasons: (1) rancorous partisanship would be encouraged in the Congress and the hard feelings residual for the losers of the contest would make any legislative progress following the election unlikely; (2) with Congress being such a relatively small body, and with it being assembled in one geographic location, the potential for foreign governments to affect the outcome of the election through bribery and corruption would be increased; and (3) if Congress selected the President, it would be virtually impossibility for the Executive branch to maintain its independence from the Legislative branch.

The second proposal was to allow the State legislatures to select the president. This idea was rejected for fear that the president might become so indebted to the States that he would permit the erosion of federal authority and thus undermine the federal republic.

The third proposal was that the president be elected by national popular vote. This idea was rejected not because the framers distrusted the people but rather because the larger populous States would have much greater influence than the smaller States and therefore the interests of those smaller States could be disregarded or trampled. Additionally, a nationwide election would encourage regionalism since the more populous areas of the country could form coalitions to elect president after president from their own region. With such regional preferentialism, lasting national unity would be nearly impossible.

The framers, dissatisfied with these three initial proposals, referred the issue of the selection of a president to the “Committee of Eleven” for further investigation. That Committee subsequently proposed an indirect election of the president on a State by State basis through a college of electors, a practice which had proved successful in ancient nations.

Why Was The Electoral College Method Chosen?

The electoral college synthesized two important philosophies established in the Constitution: (1) the maintenance of a republican, as opposed to a democratic, form of government (the explicit constitutional provisions on this issue, as well as the specific declarations of the Founders, will be examined later in this paper); and (2) the balancing of power between the smaller and the larger States and between the various diverse regions of the nation (this second point will be examined first).

When establishing our federal government, smaller States like Rhode Island had feared they would have no voice, and therefore no protection, against the more populous States like New York or Massachusetts. Similarly, the sparsely populated agricultural regions feared an inability to protect their interests against the fishing and shipping industries dominant in the more populous coastal States. These concerns on how to preserve individual State voices and diverse regional interests caused the framers to establish a bi-cameral rather than a uni-cameral legislative system.

In that wise plan, one body preserved the will of the majority as determined by population and the other preserved the will of the majority as determined by the States. As Constitution signer James Madison confirmed:

The Constitution is nicely balanced with the federative and popular principles; the Senate are the guardians of the former, and the House of Representatives of the latter; and any attempts to destroy this balance, under whatever specious names or pretences they may be presented, should be watched with a jealous eye.8

Consequently, in the Senate, Delaware has the same power as California with each State having two votes; but in the House, Delaware’s single vote often is completely negated by the fifty-two from California. Because of this different source of strength in each body, the votes in those two bodies on the same piece of legislation may be dramatically different. In such a case, before that legislation may become law there must be some compromise — some yielding of the Senate to the will of the population and some yielding of the House to the will of the States. As James Madison explained, the electoral college wisely synthesized both of these important interests:

As to the eventual voting by States, it has my approbation. The lesser States and some larger States will be generally pleased by that mode. The deputies from the small States argued, and there is some force in their reasoning, that, when the people voted, the large States evidently had the advantage over the rest, and, without varying the mode, the interests of the little States might be neglected or sacrificed. Here is a compromise.9

James Hillhouse (a soldier during the American Revolution and a U. S. Representative and Senator under Presidents George Washington, John Adams, Thomas Jefferson, and James Madison) also affirmed this principle, explaining:

The principle of the Constitution, of election by electors, is certainly preferable to all others. . . . [because] Pennsylvania, Virginia, Massachusetts, and New York, may combine; they may say to the other [smaller] States, we will not vote for your man. . . . [or] the agricultural will be arrayed against the mercantile; the South against the East; the seaboard against the inland. 10

Consequently, under the electoral college system, the smaller States receive a slightly greater voice, proportionally speaking. For example, California is the largest State and its 33 million inhabitants have 54 electors, each of whom represents 614,000 inhabitants. However, Wyoming is the smallest State and its less than one-half million inhabitants are represented by only 3 electors — one for every 160,000 inhabitants. This therefore gives Wyoming slightly more proportional strength. As Uriah Tracy (a Major-General during the Revolution and a U. S. Representative and Senator under Presidents George Washington, John Adams, and Thomas Jefferson) observed during debates on the electoral college:

He [the president] is to be chosen by electors appointed as the State legislatures shall direct, not according to numbers entirely, but adding two electors in each State as representatives of State sovereignty. Thus, Delaware obtains three votes for president, whereas she could have but one in right of numbers [population].11

So, on the one hand, the electoral college tends somewhat to overrepresent voters in smaller States; and no matter how small a State is, it is guaranteed at least 3 electors because, as explained by James Bayard (a U. S. Representative and U. S. Senator under Presidents John Adams, Thomas Jefferson, and James Madison), the electoral college supplied a “means of self protection” to “a small State without resources.” 12 In fact, the combined number of electors in the eight smallest States (Alaska, Delaware, North Dakota, South Dakota, Vermont, Wyoming, Montana, and Rhode Island) produce the same number of electors as the single State of Florida even though Florida has a population more than three times greater than those eight smaller States combined.

Yet, on the other hand, if a candidate wins California and its 54 electoral votes, then that candidate is one-fifth of the way to the 270 electoral votes needed to capture the presidency. Thus, while California accounts for only 11 percent of the nation’s population it can provide 20 percent of the electoral votes needed to obtain the presidency. The electoral college system therefore preserves a sound balance between population centers and between diverse State and regional interests, incorporating elements both of popular and of State representation in its operation.

Consider how this duality was demonstrated in the recent presidential election. If the national tally of the popular vote is transferred proportionally into a vote by the House of Representatives, the results would have been 210 Members voting for Gore, 209 for Bush, and 16 Members voting for others; Gore, therefore, would have narrowly won a vote in the House based on the will of the population. However, if the State by State votes are transferred to the Senate, since Bush won 30 States and Gore 20, the Senate vote would have been 60 for Bush and 40 for Gore; Bush, therefore, by a large margin, would have been the choice of the States. In short, Gore narrowly won the popular vote by winning heavily populated and narrowly concentrated urban parts of the nation (Gore carried only 676 counties, located primarily along both coasts and along the Mississippi River) while Bush was the overwhelming choice of the States and of the more geographically diverse regions of the country (Bush carried 2436 counties — nearly four times that of Gore — spreading virtually from coast to coast). The electoral college wisely weighs these competing interests in the selection for a President. In fact, John Taylor (an officer during the American Revolution and a U. S. Senator under Presidents George Washington and Thomas Jefferson) observed:

Two principles sustain our Constitution: one a majority of the people, the other a majority of the States; the first was necessary to preserve the liberty or sovereignty of the people; the last, to preserve the liberty or sovereignty of the States. But both are founded in the principle of majority; and the effort of the Constitution is to preserve this principle in relation both to the people and the States, so that neither species of sovereignty or independence should be able to destroy the other.13

James Madison agreed, affirming:

In our complex system of polity, the public will, as a source of authority, may be the will of the people as composing one nation, or the will of the States in their distinct and independent capacities; or the federal will as viewed, for example, through the presidential electors, representing in a certain proportion both the nation and the States.14

This blending of the will of the population and the will of the States is why it is possible — and has thrice occurred — that a President may win the popular vote but lose the electoral vote (on those previous occasions, the margin of victory in the popular vote was less than 1 percent). Usually, however, the electoral college tends to exaggerate the margin of victory of the popular vote rather than run counter to it.

The Benefits of the Electoral College System

There are three important benefits produced by the current electoral college system:

  • Because a candidate must win at least 270 electoral votes from across the nation, a candidate cannot become president without a significant widespread voter base. In fact, as has happened in three previous elections, the distribution of voter support may actually take precedence over the quantity of voter support. Therefore, the electoral college ensures a broad national consensus for a candidate that subsequently will allow him to govern once he takes office.
  • Since the electoral college operates on a State-by-State basis, this not only enhances the status of minorities by affording them a greater proportional influence within a smaller block of voters at the State level but it also ensures a geographically diverse population which makes regional domination, or domination of urban over suburban or rural areas, virtually impossible. In fact, since no one region of the country has 270 electoral votes, there is an incentive for a candidate to form coalitions of States and regions rather than to accentuate regional differences.
  • The electoral college system prioritizes the most important factors in selecting a president. If a candidate receives a substantial majority of the popular vote, then that candidate is almost certain to receive enough electoral votes to be president. However, if the popular vote is extremely close, then the candidate with the best distribution of popular votes will be elected. And if the country is so divided that no one candidate obtains an absolute majority of electoral votes, then the U. S. House of Representatives — the body closest to the people and which must face them in every election — will then choose the president.

Objections to the Electoral College System

A New System Would Prevent Recounts Like That Which Occurred in Florida

While pundits and opponents of the electoral college system assert that the prolonged recount in Florida would have been avoided if there had been a direct popular election of the president, the reality is that without the electoral college system, recounts likely would have increased.

Consider: the two major candidates were separated by a popular margin of less than one percent. Therefore, if a candidate needed to pick up an additional one percent in a national recount, there is no reason to confine the recount solely to the closely contested States; in fact, it would make sense to recount even the landslide States. Therefore, if Bush needed only 100,000 votes to take the popular lead, he could demand a recount in New York, Michigan, Pennsylvania, Washington, D. C., Massachusetts, etc. — States he lost by wide margins — not because he needed to win those States but because he might gain more votes to add to his national total. In fact, he could even demand a recount of the States that he won handily — States like Texas, Georgia, Virginia, Alabama, etc. — simply to accumulate additional voters.

Contrary, then, to what many currently assert, without the electoral college system, in a close election the possibility of recounts — and of recounts in numbers of States — would likely increase rather than decrease.

Abolishing the Current System Will Give the People a Better Voice and Better Representation

Various groups, claiming that the “electoral college system is fundamentally unfair to voters,” 15 urge “the abolition of the electoral college so that people’s votes count.” 16 They argue that “because many State constitutions award electoral votes on a winner-take-all basis, all individual votes become meaningless: each State gets a certain number of electoral votes; but for the Presidential election itself, individual votes are not even tallied.” 17

Interestingly, because of the electoral college, the opposite has been true. As the Florida situation has proved, individual votes are tallied — sometimes several times. Furthermore, without the electoral college, candidates would spend less time trying to win the votes of many individuals. As Curtis Gans, from the Committee for the Study of the American Electorate, points out:

The idea of getting rid of the electoral college . . . would be profoundly dangerous, particularly in the present way that we conduct our campaigns. Essentially what this would mean is that the totality of our campaigns would be a television advertising, tarmac kind of campaign. You would be handing the American presidential campaign to whatever media adviser could outslick the other. Different States in different regions have important interests to which the candidate should be subjected and to which the candidates should be required to speak. . . . [D]irect elections would insure that all monetary resources would be poured into [televised political] advertising. There would be virtually no incentive to try to mobilize constituencies, organize specific interests, or devote any resources to such things as voter registration and education. . . . What we would have is a political system that combines the worst of network television with the worst of the modern campaign.18

Indeed, without the electoral college system, candidates would logically spend their campaign courting voters in the most populous urban areas such as Chicago, San Francisco, New York City, Washington, D. C., Miami, Seattle, etc., rather than visiting cities in more rural areas — cities like Wichita, Birmingham, Amarillo, Cheyenne, Springfield, Tulsa, etc. Additionally, since larger urban areas tend to be more liberal than the rest of the nation, presidential campaigns would therefore cater predominately to liberal interests.

Under the electoral college system, it is possible that a candidate can win the presidency by carrying a majority of only the 11 most densely populated States (California, Texas, Florida, New York, Ohio, Pennsylvania, Illinois, Michigan, New Jersey, North Carolina and either Georgia or Virginia). However, under a system of direct elections, this number could be reduced to even fewer States, particularly if they happened to be the largest States and could deliver overwhelming margins of victory, such as Washington, D. C., did for Gore by the lopsided 86 to 9 percent margin. In fact, the margin of victory in a State would become more important than simply winning the State and thus could easily cause a candidate not to visit a close State but rather to spend time in a State in which he is already popular, simply to drive up the margin of the vote and add more to his national total.

Therefore, contrary to what is asserted, the electoral college system ensures, rather than prevents, the counting of each individual’s vote and actually enhances the opportunity for the votes of many more individuals to be courted.

The Current System Does Not Allow Third Parties an Opportunity to Participate

Opponents of the electoral college complain that a third-party president can never be elected so long as the present system remains in effect.19 They argue that, because of the electoral college system . . .

. . . none of these [third] parties have ever seriously contended with Republicans or Democrats in Presidential elections. In fact . . . . [i]n 1992, a Reform Party candidate, Texas billionaire Ross Perot, won nearly 12% of the popular vote. But the percentage of votes that he won in “official” tallies? Zero. For despite his significant victories in the popular vote, he failed to win a majority of a State and thus was not awarded a single electoral vote.20 Without the confines of the electoral college, a candidate could win 12% in a Presidential election without winning the majority of a single State, and could, quite fairly, still be credited with winning 12% of the vote.21

What these groups apparently fail to recognize is that even if a third party candidate should get 25 percent, or even an impressive 40 percent of the popular vote, such a percentage is still insufficient to attain the presidency. It is true that if there was no electoral college, then a third party candidate who received 12 percent of the popular vote would no longer show that he received zero electors; but is this a sufficient reason to abolish the electoral college — just so a candidate can perhaps feel better about himself and his effort, and because a 12 rather than a zero could appear by his name? A 12 still will not elect him to office since even the opponents of the electoral college system propose that no president should be elected with under 50 percent.

Furthermore, those who promote the cause of third parties are typically unwilling to invest the effort that it takes to actually build a third party, for the entirety of American political history shows that third parties must be built from the bottom up and not from the top down. In fact, not even a national hero as popular as two-time President Teddy Roosevelt with his Bull Moose Party was able to capture lasting support, and Founding Father Attorney General William Wirt of the Anti-Masonic Party, even in the wake of the anti-Masonic fervor that swept the nation in the mid 1820s, failed to achieve enduring popular support.

If a third party ever intends to have any lasting influence or widespread national support, it must invest time and resources in a 30 year plan that begins to build at the local level. That is, it must begin by running candidates for local races such as school boards and city councils, and after demonstrating that it has support at the local level, it can then run candidates for State Representative and for State Senator. If the public continues to support its ideas at the State level, it should then run candidates for U. S. Representatives and U. S. Senators, and then finally for President. But until an infrastructure is established with wide popular support, it is virtually impossible for any third party to break in at the top. And even if a third party candidate such as Ralph Nader, Ross Perot or Pat Buchanan were elected as president, could he govern without his supporters serving in the U. S. Congress and in State Houses across the nation? Abolishing the electoral college will not remove the other political hurdles that third parties must overcome if they ever expect to compete.

The Current System Discourages Minority Participation

While critics assert that the electoral college discourages minority participation. Curtis Gans, of the Committee for the Study of the American Electorate, explains why this assertion is inaccurate:

The success of American democracy has rested, in part, on achieving a balance between the will and desires of the majority of Americans and recognizing the rights and needs of various minorities. The electoral college serves to protect the latter in national politics. To take the most obvious example, the number of farmers in the Unites States has dwindled so precipitously that nationally they are no longer a serious numerical factor in electoral outcomes—despite the fact that most of the food we have on our tables is due to their individual and collective effort. In a system of direct elections, their concerns could easily be ignored. But because their votes are critical to winning electoral votes in several mid-western and western States, their needs must be addressed, their views must be solicited, and their allegiances must be competed for. The needs and aspirations of America’s African-American population could easily be ignored in a direct election. They comprise perhaps 12 percent of the eligible electorate. But in several southern States, they account for nearly a majority of eligible citizens and they comprise a significant and, perhaps on occasions, pivotal minorities in several northern States. The electoral college insures, in national elections, that their views must be taken into account. Union members, Christian fundamentalists, Latinos, rural denizens are but a few of the significant minorities whose views and needs might be ignored if campaigns were totally nationalized. 22

William C. Kimberling of the FEC concurs, explaining:

[F]ar from diminishing minority interests by depressing voter participation, the electoral college actually enhances the status of minority groups. This is so because the votes of even small minorities in a State may make the difference between winning all of that State’s electoral votes or none of that State’s electoral votes. And since ethnic minority groups in the United States happen to concentrate in those States with the most electoral votes, they assume an importance to presidential candidates well out of proportion to their number. The same principle applies to other special interest groups such as labor unions, farmers, environmentalists, and so forth. It is because of this “leverage effect” that the presidency, as an institution, tends to be more sensitive to ethnic minority and other special interest groups than does the Congress as an institution. Changing to a direct election of the president would therefore actually damage minority interests since their votes would be overwhelmed by a national popular majority.23

The Current System Creates Constitutional Crises

Opponents claim that the electoral college is “a constitutional accident waiting to happen,” 24 and often charge that, in close elections, the electoral college “warps national politics and could lead to a major constitutional crisis.” 25 Interestingly, the Florida controversy did not create a constitutional crisis based on the electoral college; rather, it demonstrated three other problems: (1) the ease with which voter fraud may occur, (2) the current tendency to resort to the judiciary for a solution when one disagrees either with the law or the outcome, and (3) the proclivity of the courts to rewrite the intent of the legislature and the explicit wording of State laws to reflect their own preferences. None of these problems so apparent in Florida will be solved by the abolition of the electoral college.

The Current System is Anti-Democratic

The charge is made that the electoral college is “blatantly distrustful and alarmingly paternalistic towards the American populace, not to mention being flat-out undemocratic. The electoral college . . . at least in part, was aimed at preventing the general public from having any direct power in Presidential or Senatorial elections, for fear of the ‘uneducated masses’ having any direct political power.” 26

Did the framers not trust the masses? Contrary to what is charged, they did — completely. This fact is easily demonstrable not only through a simple perusal of their writings but also by even a cursory examination of the numerous provisions in both the federal and State constitutions by which the framers repeatedly placed immense power into the hands of citizens.

Is the electoral college anti-democratic? Absolutely — as is the rest of the Constitution. In fact, the Constitution is so anti-democratic that it contains explicit provisions forbidding America from becoming a democracy, requiring instead that she maintain herself as a republic. To move toward democracy would therefore require not only an abolition of the electoral college but also a rewriting of several key provisions of the Constitution.

While many today errantly believe that there is no difference between a democracy and a republic, the framers knew that there was; and they specifically rejected a democracy and deliberately chose a republic. Notice some of their clear declarations on this subject:

[D]emocracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have, in general, been as short in their lives as they have been violent in their deaths.27 James Madison

Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide.28 John Adams

A democracy is a volcano which conceals the fiery materials of its own destruction. These will produce an eruption and carry desolation in their way.29 The known propensity of a democracy is to licentiousness [excessive license] which the ambitious call, and ignorant believe to be, liberty.30 Fisher Ames, a framer of the bill of rights

We have seen the tumults of democracy terminate . . . as [it has] everywhere terminated, in despotism. . . . Democracy! savage and wild. Thou who wouldst bring down the virtuous and wise to thy level of folly and guilt.31 Gouverneur Morris, signer and penman of the constitution

[T]he experience of all former ages had shown that of all human governments, democracy was the most unstable, fluctuating, and short-lived.32 John Quincy Adams

A simple democracy . . . is one of the greatest of evils. 33 Benjamin Rush, signer of the declaration

In democracy . . . there are commonly tumults and disorders. . . . Therefore a pure democracy is generally a very bad government. It is often the most tyrannical government on earth.34 Noah Webster, responsible for article i, section i, ¶ 8 of the constitution

Pure democracy cannot subsist long nor be carried far into the departments of state — it is very subject to caprice and the madness of popular rage.35 John Witherspoon, signer of the declaration

It may generally be remarked that the more a government resembles a pure democracy the more they abound with disorder and confusion.36 Zephaniah Swift, author of America’s first legal text

Samuel White (a military general and a U. S. Senator under President Thomas Jefferson) summarized the framers convictions about the superiority of a republic over a democracy when he declared:

The people watch their servants with a jealous eye. If they err at all, it is on . . . the safe side. . . . [W]hat we have most to fear to our government and our liberties must come . . . from the licentiousness of democracy. This is what republican governments have forever to guard against; this is the vortex in which they are most likely to be swallowed up. God grant it may never be the case with ours; I fear nothing else.37

So convinced were the framers of the superiority of a republic over a democracy that Article IV of the Constitution requires that every State maintain a republican — as opposed to a democratic — form of government. The electoral college helps maintains a federal, republican system of government, for in the American federal structure, important political powers are reserved to the States as well as to the people. As William C. Kimberling of the FEC’s Office of Election Administration argues:

Indeed, if we become obsessed with government by popular majority as the only consideration, should we not then abolish the Senate which represents States regardless of population? Should we not correct the minor distortions in the House (caused by districting and by guaranteeing each State at least one Representative) by changing it to a system of proportional representation? This would accomplish “government by popular majority” and guarantee the representation of minority parties, but it would also demolish our federal system of government. If there are reasons to maintain State representation in the Senate and House as they exist today, then surely these same reasons apply to the choice of president.38

The direct election of a president would be a major rejection of and departure from the federal, republican character of our American republic.

The Current System is the Cause of Low Voter Turnout

Citizens for True Democracy, one of the more vocal groups in calling for the abolition of the electoral college, explains that it “was founded in the wake of the 1996 presidential elections, which boasted record-breaking low voter turnout.” They assert that abolishing the electoral college will cause “people [to] vote.” 39 Other opponents similarly complain about the role of the electoral college “in depressing voter turnout” arguing that, “since each State is entitled to the same number of electoral votes regardless of its voter turnout, there is no incentive in the States to encourage voter participation. Indeed, there may even be an incentive to discourage participation.” 40 However, William C. Kimberling of the FEC correctly points out:

While this argument has a certain surface plausibility, it fails to account for the fact that presidential elections do not occur in a vacuum. States also conduct other elections (for U. S. Senators, U. S. Representatives, State Governors, State legislators, and a host of local officials) in which these same incentives and disincentives are likely to operate, if at all, with an even greater force. It is hard to imagine what counter-incentive would be created by eliminating the electoral college.41

In fact, not only is evidence completely lacking that the electoral college suppresses voter turnout, but, to the contrary, the voter turnout this year — under the electoral college system — was impressively high with, for example, States like California and Florida reaching 70 percent in voter turnout, and Maryland attaining 75 percent, etc. Would abolishing the electoral college magically have raised the participation in these States to 100 percent? Hardly. Furthermore, previous generations of Americans — all under the electoral college system — consistently recorded high voter turnout in presidential elections. Only in the last half-century of this two-century old system has voter turnout begun to wane. The electoral college system, therefore, cannot properly be blamed since it has a demonstrated history of success.

Perhaps a more logical source for blame might be the current educational system. Consider, for example, the recent finding that, of the top 55 American colleges and universities as listed by U. S. News and World Report, not one requires a course in American history for graduation! 42 Indeed, other surveys over recent decades confirm that our education system now produces citizens who not only don’t know their own history43 but also who don’t even know the simplest facts about the most fundamental operations of their own government. For example:

  • Almost half of college students do not know the purpose of the Federalist Papers, and only 40 percent knew that the Constitution provides for a separation of powers;44
  • Over half wrongly thought that Thomas Jefferson was the “Father of the Constitution,” unaware that not only did Jefferson not sign the Constitution but that he was not even in America when it was written;45 and 93 percent of Americans did not even know that the Constitutional Convention was the group of individuals responsible for drafting the U. S. Constitution;46
  • In fact, 83 percent of Americans said that they did not know very much about the specifics of the Constitution; only 5 percent could correctly answer 10 rudimentary questions about the Constitution; more than half did not know the terms of office for U. S. Representatives or Senators; and 62 percent could not name the three branches of the federal government!47

When two out of three Americans cannot name the three branches of government, is it likely that they know what the electoral college is? And if they don’t know what it is, then how does it discourage them from voting? Our educational system, and not the electoral college, is arguably at fault for low voter turnout by producing citizens who have no understanding either of their own government or of their own civic duties and responsibilities.

The Current System Has Potential for Fraud Because of the “Faithless Elector”

It is argued that under the current system, an elector can change his vote and therefore a president might be elected whom the people did not choose. Professor Ellis Katz of Temple University’s Center for the Study of Federalism outlines this objection:

[T]he 1952 decision by the United States Supreme Court in Roy v. Blair [held] that a State cannot constitutionally require its electors to vote for the candidates to whom they are pledged. Consequently, critics of the electoral college suggest the possibility of some enormous mischief by which a significant number of electors would vote for some other candidate, thus frustrating the will of the voters.48

However, as Professor Katz properly notes, such instances are rare:

One occurred in 1820, when an elector pledged to James Monroe voted for John Quincy Adams instead. His rationale was that his vote would have made the election of Monroe unanimous and that no President other than George Washington was deserving of unanimous support. The other three instances — one in 1956, one in 1960 and one in 1968 — were equally peculiar to the individual elector. None affected an election’s outcome.49

The FEC’s William Kimberling provides further examples of the “faithless elector”:

There have been 7 such electors in this century and as recently as 1988 when a Democrat elector in the State of West Virginia cast his votes for Lloyd Bentsen for president and Michael Dukakkis for vice president instead of the other way around.50

Kimberling concludes, however:

Faithless electors have never changed the outcome of an election . . . because most often their purpose is to make a statement rather than make a difference. That is to say, when the electoral vote outcome is so obviously going to be for one candidate or the other, an occasional elector casts a vote for some personal favorite knowing full well that it will not make a difference in the result. Still, if the prospect of a faithless elector is so fearsome . . . then it is possible to solve the problem without abolishing the electoral college.51

Curtis Gans, of the Committee for the Study of the American Electorate, recommends a targeted solution for this problem rather than completely abolishing the entire electoral college. Gans explains:

[W]hile it has never happened and may never happen, there remains the possibility of a close electoral college vote in which one or a few electors casting ballots against the wishes of the electorate can vitiate the popular result in a State and nationally and undermine public faith in American democracy. An Amendment which would eliminate the human elector in favor of the counting of State electoral votes would be desirable.52

Conclusion: Is The Present System Outdated?

Some believe that it is. For example, Yale Law School constitutional law professor Akhil Amar argues that the electoral college is ill-suited for modern America, explaining:

I consider the so-called electoral college a brilliant 18th-century device that cleverly solved a cluster of 18th-century problems . . . [A]s we approach the 21st century, we confront a different cluster of problems, and our constitutional machinery of presidential selection does not look so brilliant.53

However, as Judy Cresanta, president of the Nevada Policy Research Institute, counters:

The electoral college has performed its function for over 200 years and in over 50 presidential elections by ensuring that the president has both sufficient popular support to govern and that his popular support is sufficiently distributed throughout the country to enable him to govern effectively. Although there were a few anomalies in its early history [i.e., the popular vote being different from the electoral vote, or the House selecting the President] none have occurred in the past century. Proposals to abolish the electoral college, although frequently put forward, have failed largely because alternatives appear more problematical than the college in its present form. The fact that the electoral college was originally designed to solve one set of problems is a tribute to the genius of the Founding Fathers.54

And Kimberling similarly observes:

For the past hundred years, the electoral college has functioned without incident in every presidential election, through two world wars, a major economic depression, and several periods of acute civil unrest. Only twice in this century (the States’ Rights Democrats in 1948 and George Wallace’s American Independents in 1968) have there been attempts to block an electoral college victory and thus either force a negotiation for the presidency or else force the decision into the Congress. Neither attempt came close to succeeding. Such stability, rare in human history, should not be lightly dismissed.55

Indeed, under our Constitution, America has become the longest on-going constitutional republic in the history of the world. In fact, the longer America continues successfully to operate under the principles established in the Constitution, the more there is to commend the preservation of those fundamental principles unaltered. As Senator Samuel White correctly observed in 1803:

[T]he older it [the Constitution] grows, the higher veneration will every American entertain for it; the man born to its blessings will respect it more than him who saw its birth; he will regard it not only as the great bulwark of his liberties but as the price of the blood of his ancestors — as a sacred legacy from his father, deposited with him for the benefit of himself and in trust for his posterity.56

One is hard pressed to show why a fundamental component forming the basis of our successful system of government should now suddenly be abolished. To the contrary, every argument currently raised against the electoral college can be shown not only to be fallacious but also to be more problematic than the alleged problems that it claims to solve. The electoral college should be preserved.


Endnotes

1. Subcommittee on the Constitution, Committee on the Judiciary, U. S. House of Representatives, Hearing on H. J. Res. 28 and H. J. Res. 43, Proposals for Electoral College Reform, September 4, 1997, Testimony of Becky Cain, President, League of Women Voters.

2. Groups like the League of Women Voters hold a modification of this view, urging that “if no candidate receives more than 40 percent of the popular vote, then a national run-off election should be held.” Subcommittee on the Constitution Hearings, supra note 1, Becky Cain, President, League of Women Voters.

3. Rob Richie (October 29, 1999). Electoral College. Center for Voting and Democracy.

4. David Enrich (October 23, 2000). 2000 Presidential Campaign Showcases Electoral College Problems.Citizens for True Democracy.

5. David Enrich.Citizens for True Democracy.

6. David Enrich. Support for Abolishing Electoral College Continues to Grow.Citizens for True Democracy.

7. William Rawle,A View of the Constitution of the United States of America (Philadelphia: Philip H. Nicklin, 1829), 57.

8.The Debates and Proceedings in the Congress of the United States, 1803-1805 (Boston: Gales and Seaton, 1852), 163, James Madison, December 1803.

9. The Debates in the Several State Conventions on the Adoption of the Federal Constitution, Jonathan Elliot, editor (Washington, D. C.: Jonathan Elliot, 1836), III:494-495, James Madison, June 18, 1788.

10. The Debates and Proceedings in Congress, supra note 8, 130, James Hillhouse, December, 1803.

11. The Debates and Proceedings in Congress, supra note 8, 162, Uriah Tracy, December, 1803.

12. Alexander Hamilton,The Papers of Alexander Hamilton, 1800-1802, ed. Harold C. Syrett (New York: Columbia University Press, 1977), XXV: 345, to Alexander Hamilton from James A. Bayard on March 8, 1801.

13.The Debates and Proceedings in Congress, supra note 8, 181, John Taylor, December, 1803.

14. James Madison,The Writings of James Madison, ed. Gaillard Hunt (New York: The Knickerbocker Press, 1910), IX:216-217, to Henry Lee on January 14, 1825.

15. Subcommittee on the Constitution Hearings, supra note 1, Becky Cain, President, League of Women Voters.

16. David Enrich. About Citizens for True Democracy. Supra note 8.

17. David Enrich. Electoral College Problems.Citizens for True Democracy.

18. Ellen Sung (July 27, 2000). Time to Reform the Electoral College? Policy.com. Quoting Curtis Gans of the Committee for the Study of the American Electorate.

19. Devvy Kidd (February 2, 2000). Why A Third Party Presidential Candidate Can’t Get Elected. Media Bypass Magazine, March 2000.

20. David Enrich. Electoral College Problems. Supra note 17.

21. David Enrich. Citizens for True Democracy. Supra note 5.

22. Subcommittee on the Constitution Hearings, supra note 1, Curtis Gans of the Committee for the Study of the American Electorate.

23. William C. Kimberling, (August 10, 2000). Origins and History of the Electoral College.Truth in Media.

24. Subcommittee on the Constitution Hearings,supra note 1, Professor Akhil Amar, Yale College Professor.

25. David Enrich (October 23, 2000). 2000 Presidential Campaign Showcases Electoral College Problems. Supra note 4.

26. David Enrich.Citizens for True Democracy. Supra note 5.

27. Alexander Hamilton, John Jay, James Madison,The Federalist on the New Constitution, #10, James Madison.

28. John Adams,The Works of John Adams, Second President of the United States, ed. Charles Francis Adams (Boston: Charles C. Little and James Brown, 1851), VI:484, to John Taylor on April 15, 1814.

29. Fisher Ames,Works of Fisher Ames (Boston: T. B. Wait & Co., 1809), 24, Speech on Biennial Elections, delivered January, 1788.

30. Ames,Works, 384, “The Dangers of American Liberty,” February 1805.

31. Gouverneur Morris,An Oration Delivered on Wednesday, June 29, 1814, at the Request of a Number of Citizens of New-York, in Celebration of the Recent Deliverance of Europe from the Yoke of Military Despotism (New York: Van Winkle and Wiley, 1814), 10, 22.

32. John Quincy Adams,The Jubilee of the Constitution. A Discourse Delivered at the Request of the New York Historical Society, in the City of New York, on Tuesday, the 30th of April, 1839; Being the Fiftieth Anniversary of the Inauguration of George Washington as President of the United States, on Thursday, the 30th of April, 1789 (New York: Samuel Colman, 1839), 53.

33. Benjamin Rush,The Letters of Benjamin Rush, L. H. Butterfield, editor (Princeton: Princeton University Press for the American Philosophical Society, 1951), I:523, to John Adams on July 21, 1789.

34. Noah Webster, The American Spelling Book: Containing an Easy Standard of Pronunciation: Being the First Part of a Grammatical Institute of the English Language, To Which is Added, an Appendix, Containing a Moral Catechism and a Federal Catechism (Boston: Isaiah Thomas and Ebenezer T. Andrews, 1801), 103-104.

35. John Witherspoon,The Works of John Witherspoon (Edinburgh: J. Ogle 1815), VII:101, Lecture 12 on Civil Society.

36. Zephaniah Swift,A System of the Laws of the State of Connecticut (Windham: John Byrne, 1795), I:19.

37. The Debates and Proceedings in Congress, supra note 8, 151, Samuel White, December 1803.

38. William C. Kimberling (August 10, 2000). Origins and History of the Electoral College. Supra note 23.

39. David Enrich. About Citizens for True Democracy.Supra note 5.

40. William C. Kimberling (August 10, 2000). Origins and History of the Electoral College. Supra note 23.

41. William C. Kimberling (August 10, 2000). Origins and History of the Electoral College.Supra note 23.

42. Elite College History Survey Conducted for The American Council of Trustees and Alumni by the Center for Survey Research & Analysis at the University of Connecticut, February 21, 2000, “Losing America’s Memory: Historical Illiteracy in the 21st Century,” Introduction, 2.

43. See, for example,American Education: Making It Work (Washington: U. S. Government Printing Office, 1998), 13, quoting Mark Krug, The Melting of Ethics: Education of the Immigrants, 1880-1914 (Bloomington, IN: Phi Delta Kappa Educational Foundation, 1976), 87; The Washington Times, October 9, 1989, Section A-1, “Reforms sought as college seniors stumble on history and literature,” by Joyce Price.

44. Elite College History Survey,supra note 42, Appendix A, 3.

45. Elite College History Survey,supra note 42, Appendix A, 2.

46. National Constitution Center. (1999) Constitution Poll.

47. National Constitution Center. (1999) Constitution Poll. Supra note 46.

48. Ellis Katz. The American Electoral College.

49. Ellis Katz. The American Electoral College.Supra note 48.

50. William C. Kimberling (August 10, 2000). Origins and History of the Electoral College.Supra note 23.

51. William C. Kimberling (August 10, 2000). Origins and History of the Electoral College.Supra note 23.

52. Subcommittee on the Constitution Hearings,supra note 1, Curtis Gans of the Committee for the Study of the American Electorate.

53. Subcommittee on the Constitution Hearings,supra note 1, Professor Akhil Amar, Yale Law School.

54. Judy Cresanta. The Electoral College: Crisis Avoided. Nevada Journal, Volume 4, Number 6, November/December 1996.

55. William C. Kimberling, (August 10, 2000). Origins and History of the Electoral College.Supra note 23.

56.The Debates and Proceedings in Congress, supra note 8, p. 141, Samuel White, December, 1803.

* This article concerns a historical issue and may not have updated information.

Impeachment of Federal Judges

The Founders’ intent for impeachment was to protect the fundamental principle of “the consent of the governed.” The Constitution carries no title but “We the People,” and impeachment removes from office those officials who ignore that standard. (Recall that the Constitution does not guarantee a federal judge his position for life, but only for the duration of “good behavior.” Art. III, Sec. 1)

For this reason impeachment was used whenever judges disregarded public interests, affronted the will of the people, or introduced arbitrary power by seizing the role of policy-maker. Previous generations used this tool far more frequently than today’s generation; and because the grounds for impeachment were deliberately kept broad, articles of impeachment have described everything from drunkenness and profanity to judicial high-handedness and bribery as reasons for removal from the bench. (Sixty-one federal judges or Supreme Court Justices have been investigated for impeachment, of whom thirteen have been impeached and seven convicted.)

Today’s judiciary, not having experienced any serious threat of impeachment as judges in earlier generations, repeatedly flaunts its contempt for the will of the people. It recently has overturned direct elections in Washington, New York, California, Arkansas, Texas, Missouri, etc., simply because it preferred a different outcome. This is not to suggest that the results of all citizen elections are final and infallible, for it is the duty of the Court to protect the Constitution. However, the above elections violated at most the judiciary’s ideological leanings rather than any manifest provision of the Constitution (e.g., English as a State’s official language, ending government assistance for illegal immigrants, enacting term-limits, prohibiting physician-assisted suicides).

Examples of Judicial Abuses

While most are aware of the 9th Circuit’s recent decision that saying “under God” in the Pledge of Allegiance threatens our American form of government, there are numerous additional examples, some staggeringly unbelievable. For example, in Jane Doe v. Santa Fe, a federal judge ruled that graduation prayers must not include any mention of “Jesus” or other “specific deities” and that any student offering such a prayer would face immediate arrest and up to six months in jail. The judge threatened “violators” by saying they would wish they “had died as a child” once his court finished with them.

In a Texas county where conservatives narrowly won multiple seats in an election, a federal judge reversed that outcome by arbitrarily throwing out the 800 votes cast by U.S. military personnel, saying they had no right to vote in local elections.

A federal judge in Nashville reviews the verdict of any jury in Tennessee that awards the death penalty. This judge has openly declared his personal opposition to the death penalty and has set aside every jury decision on this issue, despite the Constitution’s explicit language to the contrary. The judge even allows nine years to pass, on average, before overturning the jury’s sentence, thus disregarding the Constitution’s guarantee to a speedy trial.

After citizens in a statewide election voted down a proposed tax-increase in Missouri, a federal judge, in direct violation of Article I of the Constitution, unilaterally set aside the election results and instead decreed that the tax be levied in order to finance his own personal plan for education in the State. Interestingly, this judge’s plan (which funded the “Taj Majal” of public education) proved to be a dismal failure – at the continuing economic expense of the entire State.

There are many other examples; today’s judiciary is now so arrogant that the Supreme Court’s own Justices have described it as “a super board of education for every school district in the nation,” as amateur psychologists on a “psycho-journey,” and as “a national theology board.”

The Supreme Court versus Congress

Even though the Constitution gave the lawmaking powers to the Congress, courts have become the predominant policy making body in the nation. In fact, on public tours of the Supreme Court, one often hears the ridiculous claim that “this is the building from which all the laws in the land emanate.” The Supreme Court, fully believing its own propaganda, regularly strikes down or rewrites the laws of Congress to conform to its own predilections and edicts.

For example, in 1993, Congress passed the Religious Freedom Restoration Act (RFRA) to correct an earlier Supreme Court decision that weakened a long-standing First Amendment protection for religious groups. That Congressional act reinstituted protection declaring that a government entity must not interfere with a religious body unless it had “a compelling state interest” for doing so. When a Catholic church in Boerne, Texas, sought to accommodate its burgeoning membership but was denied a building permit to expand its facilities, the church invoked relief under RFRA, claiming the city had no “compelling state interest” in denying the church expansion. The Court ruled otherwise, striking down Congress’ attempt to protect religious bodies from government intrusion. While most decried this decision for weakening the rights of religious bodies, there was a far greater question at stake.

Congress invoked Section 5 of the Fourteenth Amendment of the Constitution in passing RFRA to protect religious freedoms from further governmental encroachment. Yet even though the Congress had acted on the power explicitly given it in the Constitution, the Court struck down the law, refusing to be corrected by Congress and warning that Congress should not attempt to correct a Court ruling. Significantly, Congress cited the Constitution as its authority for passing RFRA, but the Court did not cite the Constitution as its authority for striking RFRA down. The Court instead pointed to its own previous decisions, thus elevating its rulings higher than the Constitution itself. As it explained, “Any suggestion that Congress has a substantive, non-remedial power under the Fourteenth Amendment is not supported by our case law.” The Court then rebuked Congress, warning that its judicial edicts must be treated “with the respect due them.” In short, we the Court demand that you the Congress adhere to our opinions regardless of what the Constitution says.

Obviously, the Supreme Court considers both itself and its decisions supreme over Congress. However, the Constitution disagrees – it deliberately empowers Congress with greater power. For example, the Constitution gives Congress the authority to set the salaries for judges, determine the size of the Judiciary, establish the scope of the Judiciary’s jurisdiction and the types of cases which come before it. Furthermore, judges cannot serve without the approval of Congress, and Congress may remove judges with whom it is dissatisfied. These are just some of the “constitutional arms” for Congress’ “powers of self-defense” (Federalist 73, Alexander Hamilton).

The Constitution clearly places many of the operations of the Judiciary under the oversight of Congress – a power not granted reciprocally to the Judiciary. This is made clear in the Federalist Papers (described by James Madison as “the most authentic exposition of the heart of the federal Constitution”), which confirm that subjugating the Judiciary to Congress was deliberate and intentional. Federalist #51 declares:

The legislative authority necessarily predominates.

Federalist #78 then proclaims:

The Judiciary is beyond comparison the weakest of the three departments of power.

Furthermore, Federalist #49 declares that Congress – not the Court – is “the confidential guardians of [the people’s] rights and liberties.” Why? Because the Legislature – not the unelected judiciary – is closest to the people and most responsive to them. In fact, the Court’s own history proves that it is not a proficient guardian of the people’s rights. For example, after the Civil War, Congress passed civil rights laws forbidding segregation, but the Court struck down these laws and instead instituted “separate but equal” in Plessey v. Ferguson. (While the Court eventually ended this racial segregation in Brown v. Board of Education, that decision was merely the Court’s reversal of its own segregation standard previously established in Plessey.)

Moreover, had it been up to the Court, slavery would have never ended: in 1857, the Court declared it unconstitutional for the other branches to end slavery or to free slaves. Fortunately, Congress ignored that decision by declaring freedom for slaves in 1862 and President Lincoln also ignored that decision by issuing the “Emancipation Proclamation” in 1863. All substantive progress in civil rights after the Civil War was accomplished only after Congress used Article III, Section 2 of the Constitution to remove Reconstruction issues from the Court’s reach. Indeed, history demonstrates that the Court is less than a faithful guardian of the people’s rights, violating the people’s liberties as often as it protects them. As Thomas Jefferson pointed out:

Our judges are as honest as other men and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. . . . and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control.

Today, the Court claims that it is the only body capable of interpreting the Constitution – that Congress is incapable of determining constitutionality. However, the Founding Fathers vehemently disagreed. For example, James Madison declared:

[T]he meaning of the Constitution may as well be ascertained by the Legislative as by the Judicial authority.

Constitutional Convention delegate Luther Martin similarly attested:

A knowledge of mankind and of legislative affairs cannot be presumed to belong in a higher degree to the Judges than to the Legislature.

The Founders consistently opposed the Court being the final word on constitutionality. For example, Thomas Jefferson declared:

[T]o consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. . . . The Constitution has erected no such single tribunal.

He further explained that if the Court was left unchecked:

The Constitution . . . [would be] a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please.

Allowing the Court to enlarge its own sphere of power beyond what the Constitution authorizes, permitting the Court to usurp the powers of Congress, and tolerating the Courts’ disregard of constitutional separation of powers moves America ever further from being a representative republic and ever closer toward the oligarchy against which Jefferson warned. The Court must be resisted in these attempts.

Impeachment: The Founders’ Solution

As noted earlier, judges in previous generations who usurped powers from Congress or the people faced impeachment. But today’s critics claim that the use of impeachment would either make the judiciary a “political” branch (as if it were not already a political branch) or that it would violate the “independence of the judiciary.” Yet, as Thomas Jefferson so accurately cautioned,

It should be remembered as an axiom of eternal truth in politics that whatever power . . . is independent is absolute also. . . . Independence can be trusted nowhere but with the people in mass.

No judge should ever be so independent that he is unaccountable to the Congress, and thereby the people. As Justice James Iredell (placed on the Court by President George Washington) so clearly explained:

Every government requires it [impeachment]. Every man ought to be amenable for his conduct.

Iredell further noted that some officials will behave themselves only under “the very terror of punishment” that impeachment provides. Recent events suggest he was right.

In 1996, six members of the Supreme Court voted to overturn the Colorado election forbidding special (rather than just equal) rights for homosexuals. Following that flagrant display of contempt for the will of Colorado voters, there was a national call for the impeachment of those six Justices. After this clamor for their removal, those same six Justices suddenly became ardent defenders of the people’s elections and in a subsequent decision unexpectedly and unanimously chastised a lower court that had overturned a statewide election in Arizona. (Interestingly, Thomas Jefferson on multiple occasions called impeachment a “scarecrow” – something used to frighten predators – and the threat of impeachment certainly had that effect on the Supreme Court.)

Similarly, after a federal judge overturned a binding referendum by the voters of California (“Proposition 209”), national leaders called for the impeachment of that judge. Later, the 9th Circuit ordered the results of the election reinstated and criticized that judge for ignoring the will of the people. Yet, this same 9th Circuit Court had itself shortly before overturned at least three similar elections. Why the flip-flop? The “scarecrow” had been forcefully raised by Congress to make judges accountable for their decisions by returning to the original constitutional uses of impeachment.

It is true that impeachment is a cumbersome process, and achieving a conviction is difficult. However, on most occasions, just the threat of impeachment produces results. In fact, there are several examples of federal judges correcting their own decisions after hearing Congressional calls for their impeachment; and an actual impeachment sends an even more powerful message to all other wayward leaning judges.

Although Congress is ultimately responsible for the discipline of judges, far too many of our Congressmen (like far too many of our citizens) have no understanding of the proper use of impeachment. However, a wise political axiom declares that “Congress sees the light when it feels the heat,” and this is especially true on this issue. As citizens, we need to educate ourselves on the proper use of judicial impeachment, and then we need to educate our Representatives, reminding them of the need for judicial reform and alerting them to those judges showing a pattern of abuse. The time for encouraging judicial accountability is once again ripe. This is a golden opportunity for citizens to weigh in and make a difference.

Copyright © 2002 David Barton, WallBuilders

(An excellent tool for educating yourself and your Congressional representative is the book Restraining Judicial Activisim . This work documents both the Founders writings on this issue and how impeachment was used in America in previous generations. Get a copy for yourself and an extra copy for your Representative and Senators!)

 

* This article concerns a historical issue and may not have updated information.

A Tale of Two Constitutions

(First published in the October 2004 issue of The American Legion magazine)

The subject of constitutional interpretation may seem like a topic best fitted for an ivory-tower debate, but it actually has a very real and dramatic impact on daily life (as will be demonstrated shortly). In recent years, two competing viewpoints have emerged.

Probably the first exposure most citizens had to the two views came during the 2000 presidential debates. When asked what type of judges should be placed on the bench, candidate Bush responded: “I believe that the judges ought not to take the place of the legislative branch of government . . . and that they ought to look at the Constitution as sacred. . . . I don’t believe in liberal, activist judges; I believe in strict constructionists.”1 Candidate Gore countered, “The Constitution ought to be interpreted as a document that grows.”2 Gore later stated, “I believe the Constitution is a living and breathing document. . . . We have interpreted our founding charter over the years, and found deeper meanings in it in light of the subsequent experience in American life.”3 So, the two choices are . . . follow original intent, or construct a living constitution.

Proponents of a living constitution believe that we should not be bound by what dead white guys wrote two centuries ago when slavery was legal, women could not vote, and horses were the fastest means of transportation. Instead, we should live under a constitution that is alive and vibrant, reflecting today’s values and beliefs.

Such rhetoric makes a living constitution sound appealing, but it is actually a complete misportrayal of the difference between the two philosophies. In reality, both accommodate an evolving society; in fact, under the strict construction (or originalist) viewpoint, Article V of the Constitution requires that the Constitution be a living document. The real difference between the two approaches is not whether the Constitution should evolve,
but rather how those changes should occur – and whoshould make them.

Under the living constitution approach, history and precedent are largely irrelevant; instead, unelected judges create policy to reflect modern needs through the constitution they themselves write. As explained by Chief Justice Charles Evans Hughes:

We are under a constitution, but the constitution is what the judges say it is.4

Ironically, under this modern approach, judicial policy-makers are regularly out of step with modern society. For example, although 80 percent of the nation currently opposes flag desecration, living constitution judges have ruled that the people are wrong on this issue and that the flag cannot be protected. Similarly, 90 percent of citizens in the federal Ninth Circuit supported keeping “under God” in the Pledge of Allegiance, but their living constitution judges pronounced them wrong.

Equally striking is the number of recent occasions in which living constitution judges have overturned statewide votes wherein the People clearly expressed their will (e.g., striking down votes in New York and Washington that banned physician-assisted suicides; in Arkansas and Washington that enacted term limits; in Missouri that rejected a tax increase; etc.).

Each of these popular votes would be valid under original intent because in that approach, the People — not unelected judges — determine their policies and values. And whenever the People want a change, they do not rely on a judge to make it; instead, they update their Constitution to reflect their views — as they have done on over two-dozen occasions. Samuel Adams pointed out the strength of this approach:

[T]he people alone have an incontestable, unalienable, and indefeasible right to institute government and to reform, alter, or totally change the same when their protection, safety, prosperity, and happiness require it. And the federal Constitution — according to the mode prescribed therein [Article V] – has already undergone such amendments in several parts of it as from experience has been judged necessary.5(emphasis added)

This unique American guiding principle made its appearance in the Declaration of Independence as “the consent of the governed.” The State constitutions penned after the Declaration reiterated this precept — as, for example, in Massachusetts in 1780:

All power residing originally in the people and being derived from them, the several magistrates and officers of government vested with authority — whether Legislative, Executive, or Judicial — are their substitutes and agents and are at all times accountable to them.6

The same axiom was then established in the Constitution through the three-word phrase that begins its text: “We The People.”

Today’s living document proponents decry this approach as majoritarianism – the so-called “tyranny of the majority.” Perhaps, but what is the alternative? Minoritarism? That a small group should be able to annul the will of the People and enforce its own desires upon the masses? Such an option is unacceptable under original intent. As explained by George Washington:

The fundamental principle of our Constitution . . . enjoins [requires] that the will of the majority shall prevail.7

Thomas Jefferson agreed:

The will of the majority [is] the natural law of every society [and] is the only sure guardian of the rights of man. Perhaps even this may sometimes err. But its errors are honest, solitary and short-lived.8

Does this original principle therefore mean that minorities are to be disregarded or trodden upon? Of course not. As Jefferson further explained:

Though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable — the minority possess their equal rights which equal law must protect.9

While the minority is not to prevail, with its constitutional guarantee of “free speech,” it does have the “equal right” to attempt to persuade the majority to its point of view. The minority does have equal rights, but equal right is not the same as equal power; the minority is never the equivalent of the majority and should never exercise control over it.

Living constitution judges, however, view the majority as inherently wicked and depraved — always seeking deliberately to violate the rights of the minority with only judges standing between the minority and total annihilation. Therefore, under this anti-majoritarian view, the greater the public support for a position, the more likely a living constitution judge is to strike it down.

Yet American history has proven that the best protector of minority rights is not the courts but rather the People. For example, former slaves received their constitutional rights not from the courts but by the majority consent of non-slaves; women were similarly accorded the constitutional right to vote not by the courts but by the majority approval of men; the constitutional rights accorded to the poor by the abolition of the poll tax came at the majority approval of those who were not poor; and the constitutional right allowing eighteen-year-olds to vote was given by the majority approval of voters not eighteen-years-old.

Additionally, all of the constitutional protections for individuals and minorities established in the original Bill of Rights (e.g., speech, religion, petition, assembly, bearing of arms, etc.) were also enacted by majority consent. In other words, all minority rights in the Constitution have in all cases been established by majority consent.

In fact, the courts have a very poor record of protecting minority rights. Although living constitution proponents love to point to the 1954 Brown v. Board of Education decision that ended segregation as proof that the courts protects minority rights, they conveniently forget to tell the rest of the story. In 1875, Congress — by majority vote — banned racial segregation, but in 1882, the unelected Supreme Court struck down that anti-segregation law; in 1896, the Supreme Court reaffirmed its pro-segregation position; but in 1954, the Court finally reversed itself and struck down segregation – eighty years after “We The People” had abolished segregation.

It is not surprising that judges are fallible, for as Jefferson pointed out:

Our judges are as honest as other men, and not more so. They have — with others — the same passions for party, for power, and the privilege of their corps. . . . And their power the more dangerous as they are in office for life and not responsible — as the other functionaries are — to the elective control.10

Certainly, the majority will sometimes err, but as Jefferson observed, “its errors are honest, solitary, and short-lived” and can be remedied by “elective control.” However, the errors created by judicial decisions are more severe and long-lasting.

While living document enthusiasts disparage strict constructionists as being narrow or restrictive, Justice Antonin Scalia counters:

Don’t think the originalist interpretation constrains you. To the contrary, my [originalist] Constitution is a very flexible Constitution. You want a right to abortion? Create it the way all rights are created in a democracy: pass a law. The death penalty? Pass a law. That’s flexibility. 11

Scalia points out that it is just the opposite with living constitution judges:

They want the whole country to do it their way, from coast to coast. They want to drive one issue after another off the stage of political debate. 12

In short, then, the living constitution approach empowers an unaccountable elite to make decisions on behalf of the People; original intent empowers the People themselves.


Endnotes

1 Commission on Presidential Debates, “October 3, 2000 Debate Transcript,” https://www.debates.org/index.php?page=october-3-2000-transcript.
2 Commission on Presidential Debates, “October 3, 2000 Debate Transcript,” https://www.debates.org/index.php?page=october-3-2000-transcript.
3 PBS.org, “Online News Hour: Al Gore,” March 14, 2000.
4 Charles Evans Hughes, speech at Elmira on May 3, 1907, The Autobiographical Notes of Charles Evans Hughes, eds. David J. Danelski and Joseph S. Tulchin (Cambridge: Harvard University Press, 1973), 144.
5 Samuel Adams to the Legislature of Massachusetts, January 19, 1796, The Writings of Samuel Adams, ed. Harry Alonzo Cushing (New York: G. P. Putnam’s Sons, 1904), IV:388.
6 A Constitution or Frame of Government Agreed Upon by the Delegates of the People of the State of Massachusetts-Bay (Boston: Benjamin Edes & Sons, 1780), 9, Part I, Article V.
7 George Washington, “Sixth Annual Address,” November 19, 1794, A Compilation of the Messages and Papers of the Presidents, 1789-1897, ed. James D. Richardson (Published by Authority of Congress, 1899), I:164.
8 Thomas Jefferson, “Response to the Citizens of Albermarle,” February 12, 1790, The Papers of Thomas Jefferson, ed. Julian P. Boyd (NJ: Princeton University Press, 1961), XVI:179.
9 Thomas Jefferson, “First Inaugural Address,” March 11, 1801, A Compilation of the Messages and Papers of the Presidents, 1789-1897, ed. James D. Richardson (Published by Authority of Congress, 1899), I:322.
10 Thomas Jefferson to William Charles Jarvis, September 28, 1820, Writings of Thomas Jefferson, ed. Albert Ellery Bergh (Washington D. C.: Thomas Jefferson Memorial Association, 1904), XV:277.
11 “Justice Scalia speaks on constitutional interpretation,” Princeton, February 24, 2001, https://www.princeton.edu/news/2001/02/24/justice-scalia-speaks-constitutional-interpretation.
12 “Justice Scalia speaks on constitutional interpretation,” Princeton, February 24, 2001, https://www.princeton.edu/news/2001/02/24/justice-scalia-speaks-constitutional-interpretation.

* This article concerns a historical issue and may not have updated information.

Ensuring Judicial Accountability For State Judges

The Constitution originally organized the judiciary in a manner providing for appointed judges, serving for the duration of “good behavior” (Art. III, Sec. 1, Par. 1). That appointed system performed admirably while a common value system was embraced by the nation. (For example, even though Declaration signers Benjamin Franklin and the Rev. Dr. John Witherspoon held divergent religious views, there were few differences in their governmental philosophy or approach to common cultural values.) The success of the appointed system was further enhanced by the fact that the judiciary did not view itself as a super-legislature; policy-making was anathema to that branch, and it was extremely unusual for the judiciary to strike down any act of the legislature. As a supreme court explained in 1838:

The Court, therefore, from its respect for the Legislature – the immediate representation of that sovereign power [the people] whose will created and can at pleasure change the Constitution itself – will ever strive to sustain and not annul its [the Legislature’s] expressed determination. . . . [A]nd whenever the people become dissatisfied with its operation, they have only to will its abrogation or modification and let their voice be heard through the legitimate channel, and it will be done. But until they wish it, let no branch of the government – and least of all the Judiciary – undertake to interfere with it. [1] (emphasis added)

Most judges today no longer embrace this view. Consequently, State policies on issues from education to criminal justice, from religious expressions to moral legislation, from financing to health now stem more frequently from judicial decisions than legislative acts. In fact, in recent years, even the federal court has described itself as “a super board of education for every school district in the nation,” [2] “a national theology board,” [3] and amateur psychologists on a “psycho-journey.” [4] Judges now endorse the declaration of Supreme Court Justice Benjamin Cardozo that:

I take judge-made law as one of the existing realities of life. [5]

As a result, there are now two constitutions for most states: the ratified constitution with its explicitly written language, and the unratified living constitution that evolves from decision to decision (or, as explained by Supreme Court Chief-Justice Charles Evans Hughes: “We are under a Constitution – but the Constitution is what the judges say it is.” [6]) And unfortunately, just as there are now two constitutions, there are also now two public policy-making bodies: the elected legislature and the appointed judiciary.

With two such radically different constitutions and distinctively different public policy bodies, citizens should have the choice of the constitution and public policies under which they must live. Otherwise (as Samuel Adams wisely observed):

[I]f the public are bound to yield obedience to [policies] to which they cannot give their approbation, they are slaves to those who make such laws and enforce them. [7]

While defenders of an activist judiciary often assert that an independent appointed judiciary does not hold political views, such claims are specious and are not confirmed by contemporary experience. As Thomas Jefferson long ago observed, it is naive to assume that judges do not have political views on most issues before them:

Our judges are as honest as other men and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. . . . and their power the more dangerous as they are in office for life and
not responsible – as the other functionaries are – to the elective control.[8]

Recent months have provided numerous examples of the people expressing a clear will on an issue and the judiciary then abrogating that will.

Most recently, a state judge struck down California’s Prop 22 (enacted in 2000) declaring that marriage is only between a man and a woman. That judge unilaterally took the definition of marriage out of the hands of the people and substituted his own – as did judges in Hawaii, Vermont, and Massachusetts.

In Kansas, the legislature recently passed a death penalty statute at the behest of the people but the state supreme court struck it down, chiding both the legislature and the people. And despite the constitutional requirement that all spending originate and reside solely in the legislature, the court ordered additional spending on education lest the court take control of educational funding.

And in Nevada, even though the state constitution requires a 2/3rds majority of the legislature to increase taxes, its supreme court ordered that clause to be ignored and instead directed a tax increase to boost spending on education. Unbelievably, the state court ruled that part of the state constitution was unconstitutional!

Then in New Jersey, a 2002 candidate for U. S. Senate fell far behind in the polls; with 35 days left before the election, that candidate withdrew his name from the ballot. His party sought to place a new name on the ballot but State law stipulated that a candidate’s name could be replaced only if the “vacancy shall occur not later than the 51st day before the general election.” Despite the clear wording of the law, the appointed court ordered a new name to be placed on the ballot. That candidate surged in the polls and because the court ignored the law in order to advance a political agenda and gives one party two choices rather than one, his party won a U. S. Senate seat they were destined to lose.

And recall the Florida Supreme Court in the 2000 presidential election? State law explicitly declared that all election vote tallies were to be submitted to the Secretary of State’s office by 5 PM on the 7th day following the election, and that results turned in past that time were to be ignored; yet those judges ruled that 5 PM on the 7th day really meant 5 PM on the 19th day, and that the word “ignored” really meant just the opposite – that the Secretary of State must accept all results, even those that did not comply with the law.

There are many other similar examples demonstrating that in States with an appointed judiciary, judges are quite comfortable in exerting political influence rather than simply upholding and applying State laws.

Given the growing proclivities now evident throughout appointed judiciaries, it is time for States with appointed judges to move toward elected judges – as Texas, New York, Louisiana, Pennsylvania, Alabama and more than half the States already have. And any argument that what occurred in New Jersey, California, Nevada, et. al, will not occur in other States ignores the fact that the current trend is not the result of demographics; rather, it is the result of what has been taught in law schools in recent decades. Consequently, the instances of judges acting as super-legislators will continue to increase.

The election of judges can now help preserve America’s two fundamental government principles: government by “the consent of the governed,” as authorized and approved by “We the people.” Additionally, there are three fundamental historic principles that further buttress the current efforts to move toward elected judges.

Principle #1: Under American Government as Originally Established, the People are Ultimately in Charge of All Three Branches

The same Framers who established the three separate branches also established the principle that none of the branches was to be beyond the reach of the people. For example, the early State constitutions written by those who also framed the national government contain declarations such as:

All power residing originally in the people and being derived from them, the several magistrates and officers of government vested with authority – whether legislative, executive, or judicial – are their substitutes and agents and are at all times accountable to them [the people]. (emphasis added) [9]

Thomas Jefferson reiterated this important principle on numerous occasions. For example, when setting forth to the French the most important aspects of American government, he explained:

We think, in America, that it is necessary to introduce the people into every department of government. . . . Were I called upon to decide whether the people had best be omitted in the legislative or judiciary department, I would say it is better to leave them out of the legislative. The execution of the laws is more important than the making them. [10]

Since judges often have the final word, it is important that the people have a voice in that branch. In fact, if the “execution of the laws” by the judiciary regularly counters the will of the legislature (and thus uncorrectable by the people), then citizens will lose respect for government. As Luther Martin accurately warned at the Constitutional Convention:

It is necessary that the supreme judiciary should have the confidence of the people. This will soon be lost if they are employed in the task of remonstrating against [opposing and striking down] popular measures of the legislature. [11]

Supreme Court Justice Joseph Story (a “Father of American Jurisprudence,” appointed to the Court by James Madison) further warned that an unaccountable judiciary would create a general dislike and distrust of the judiciary by the citizenry:

[An] accumulation of power in the judicial department would not only furnish pretexts for [complaint] against it but might create a general dread of its influence. [12]

It is an established principle of American government that the judiciary is to be accountable to the people, and judicial elections safeguard this principle.

Principle #2: The Independence of the Judiciary is Not Violated by the Election of Judges

Today, the term “independent” as applied to the judiciary has largely become a euphemism for “unaccountable”; and not surprisingly, many judges, when given increased levels of protection from the public, feel freer to advance personal agendas. Thomas Jefferson wisely observed that no official was to be so “independent” as to be beyond the reach of the people:

It should be remembered as an axiom of eternal truth in politics that whatever power in any government is independent is absolute also; in theory only, at first, while the spirit of the people is up, but in practice as fast as that relaxes. Independence can be trusted nowhere but with the people in mass.[13]

Only the people – and not the judiciary – can be safely trusted with complete independence. The term “independent” as currently used in relation to the judiciary is incorrectly applied – as pointed out by William Giles (1762-1830), a member of the first federal Congress:

With respect to the word “independent” as applicable to the Judiciary, it is not correct nor justified by the Constitution. This term is borrowed from Great Britain – and by some incorrect apprehension of its meaning there – . . . is applied here. [14]

In fact, when some clamored that the judiciary should be “independent,” judge and U. S. Rep. Joseph Nicholson (1770-1817) forcefully reminded them:

By what authority are the judges to be raised above the law and above the Constitution? Where is the charter which places the sovereignty of this country in their hands? Give them the powers and the independence now contended for and they will require nothing more, for your government becomes a despotism and they become your rulers. They are to decide upon the lives, the liberties, and the property of your citizens; they have an absolute veto upon your laws by declaring them null and void at pleasure; they are to introduce at will the laws of a foreign country, differing essentially with us upon the great principles of government; and after being clothed with this arbitrary power, they are beyond the control of the nation, as they are not to be affected by any laws which the people by their representatives can pass. If all this be true – if this doctrine be established in the extent which is now contended for – the Constitution is not worth the time we are now spending on it. It is, as its enemies have called it, mere parchment. For these judges, thus rendered omnipotent, may overleap the Constitution and trample on your laws; they may laugh the legislature to scorn and set the nation at defiance. [15]

The notion of independence as now applied to the judiciary was repugnant to the Framers of American government – as confirmed by Constitution signer John Dickinson:

What innumerable acts of injustice may be committed, and how fatally may the principles of liberty be sapped, by a succession of judges utterly independent of the people? [16]

In short, the modern notions of judicial independence are glaringly absent from the constitutional organization of the branches. No branch is to be unaccountable to the people, and judicial elections ensure accountability.

Principle #3: The Judiciary is to be Accountable to the People, and Election of Judges Currently Accomplishes what Impeachment Did During the First Century of American Government

Originally, every appointed judge was made accountable to the people through impeachment; and literally dozens of impeachment proceedings were conducted during the first century of the nation. [17]

Judges were removed from the bench for everything from cursing in the courtroom to rudeness to witnesses, from drunkenness in private life to any other conduct or behavior that was unacceptable to the public at large. (Only in the past half century has the level for an impeachable offense been erroneously redefined to be the commission of a major felony; with this incorrect standard, the people’s ability to hold judges accountable has been greatly diminished.) The election of judges will now ensure a level of judicial accountability that impeachments once provided. It is instructive to examine the original grounds for removal of judges through impeachment and to note that these would be the very same grounds used today for removal of judges through elections.

What were the offenses that allowed for the removal of judges during America’s early years? According to Justice Joseph Story, those offenses included “political offenses growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests.” [18]

And Alexander Hamilton explained that judges could be removed for “the abuse or violation of some public trust. . . . [or for] injuries done immediately to the society itself.” [19]

Constitutional Convention delegate Elbridge Gerry considered “mal-administration”[20] as grounds for a judge’s removal, and early constitutional scholar William Rawle also included “the inordinate extension of power, the influence of party and of prejudice” [21] as well as attempts to “infringe the rights of the people.” [22]

Very simply, judges could be removed whenever they disregarded public interests, affronted the will of the people, or introduced arbitrary power by seizing the role of policy-maker.

But would not a system of judicial elections be unfair to judges, or become a deterrent to good judges serving? Certainly not. As explained by Justice Story:

If he [a judge] should choose to accept office, he would voluntarily incur all the additional responsibility growing out of it. If [removed] for his conduct while in office, he could not justly complain since he was placed in that predicament by his own choice; and in accepting office he submitted to all the consequences. [23]

In fact, rather than keeping good judges from serving, the election of judges would do just the opposite: it would will help remove the most incompetent from office and – in the words of John Randolph Tucker (a constitutional law professor and early president of the American Bar Association) – it would “protect the government from the present or future incumbency of a man whose conduct has proved him unworthy to fill it.” [24]

Very simply, judicial elections guard the principle of judicial accountability set forth by Justice James Iredell (placed on the U. S. Supreme Court by George Washington), who asserted:

Every man ought to be amenable for his conduct. . . . It will be not only the means of punishing misconduct but it will prevent misconduct. A man in public office who knows that there is no tribunal to punish him may be ready to deviate from his duty; but if he knows there is a tribunal for that purpose, although he may be a man of no principle, the very terror of punishment will perhaps deter him. [25]

Election of judges is nothing more than a tool to protect the rights of the people collectively. It once again makes the judiciary an accountable branch (as was originally intended), holding individual judges responsible for their decisions and thus preventing their usurping, misusing, or abusing power.

Summary

In this day of rampant judicial agendas, proposals that judges should be protected from citizens are untenable. History is too instructive on the necessity of direct judicial accountability for its lessons to be ignored today; and while judicial accountability through the use of impeachment on the federal level appears to be a thing of the past, judicial accountability through the direct election of State judges should not be. Elected judges should know that if they make agenda-driven decisions, they not only may face a plethora of opponents in their next race who will remind voters of their demonstrated contempt for State law but they will also have to face the voters themselves. Election of judges restores the original vision that:

All power residing originally in the people and being derived from them, the several magistrates and officers of government vested with authority – whether legislative, executive, or judicial – are their substitutes and agents and are at all times accountable to them [the people]. [26]


Endnotes

[1]Commonwealth v. Abner Kneeland, 37 Mass. (20 Pick) 206, 227, 232 (Sup. Ct. Mass. 1838).

[2]McCollum v. Board of Education; 333 U. S. 203, 237 (1948).

[3]County of Allegheny v. ACLU; 106 L. Ed. 2d 472, 550 (1989), Kennedy, J., concurring in part and dissenting in part.

[4]Lee v. Weisman; 120 L. Ed. 2d 467, 516 (1992), Scalia, J., dissenting.

[5]Benjamin Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921), p. 10.

[6]Charles Evans Hughes, The Autobiographical Notes of Charles Evans Hughes, David J. Danelski and Joseph S. Tulchin, editors (Cambridge: Harvard University Press, 1973), p. 144, speech at Elmira on May 3, 1907.

[7]Boston Gazette, January 20, 1772, Samuel Adams writing as “Candidus.”

[8]Thomas Jefferson, The Writings of Thomas Jefferson (Washington, D. C.: The Thomas Jefferson Memorial Association, 1904), Vol. XV, p. 277, to William Charles Jarvis on September 28, 1820.

[9]A Constitution or Frame of Government Agreed Upon by the Delegates of the People of the State of Massachusetts-Bay (Boston: Benjamin Edes & Sons, 1780), p. 9, Massachusetts, 1780, Part I, Article V.

[10]Jefferson, Writings, Vol. VII, pp. 422-423, to M. L’Abbe Arnoud on July 19, 1789.

[11]James Madison, The Papers of James Madison, Henry D. Gilpin, editor (Washington: Langtree & O’Sullivan, 1840), Vol. II, pp. 1161-1171, Luther Martin at the Constitutional Convention on July 21, 1787.

[12]Joseph Story, Commentaries on the Constitution of the United States (Boston: Hilliard, Gray, and Company, 1833), Vol. II, p. 233, § 760.

[13]Jefferson, Writings, Vol. XV, pp. 213-214, to Judge Spencer Roane on September 6, 1819.

[14]Charles S. Hyneman and George W. Carey, A Second Federalist (1967) supra note 91 at 183-84 (quoting Senator William Giles.

[15]Debates In the Congress of the United States on the Bill for Repealing The Law For the More Convenient Organization of the Courts of the United States; During the First Session of the Seventh Congress (Albany: Collier and Stockwell, 1802), pp. 658-659.

[16]Empire and Nation, Forrest McDonald, editor (Indianapolis, Liberty Fund, 1999), John Dickinson, Letters From a Farmer in Pennsylvania, Letter IX, p.53.

[17]David Barton, Restraining Judicial Activism (Aledo: WallBuilder Press, 2003), p. 10, n. 25, 26.

[18]Story, Commentaries, Vol. II, pp. 233-234, § 762.

[19]The Federalist Papers, #65 by Alexander Hamilton.

[20]Madison, Papers, Vol. III, p. 1528, Elbridge Gerry at the Constitutional Convention on Saturday, September 8, 1787.

[21]William Rawle, A View of the Constitution of the United States of America (Philadelphia: Philip H. Nicklin, 1829), p. 211.

[22]Rawle, View of the Constitution, p. 210.

[23]Story, Commentaries, Vol. II, pp. 256-257, § 788.

[24]John Randolph Tucker, The Constitution of the United States: A Critical Discussion of its Genesis, Development, and Interpretation, Henry St. George Tucker, editor (Chicago: Callaghan & Co., 1899), Vol. I, pp. 411-412, § 199 (f ), p. 415, § 199 (o).

[25]Debates in the Several State Conventions on the Adoption of the Federal Constitution, Jonathan Elliot, editor (Washington: Printed for the Editor, 1836), Vol. IV, p. 32, James Iredell at North Carolina’s Ratification Convention on July 24, 1788.

[26]A Constitution . . . of Massachusetts-Bay, p. 9, Massachusetts, 1780, Part I, Article V.

Five Judicial Myths

Talking Points About the Judiciary

Despite what we hear today . . .

1. THE JUDICIARY IS NOT A CO-EQUAL BRANCH OF GOVERNMENT

  • A. Federalist #51: “the legislative authority necessarily predominates.1
  • B. Federalist #78: “The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will. . . . The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution. . . . [T]he judiciary is, beyond comparison, the weakest of the three departments of power. . . . [and] the general liberty of the people can never be endangered from that quarter.2
  • C. Congress determines the operation of the Judiciary, not vice versa (Congress sets the number of judges and courts; what issues may come before the courts; judges’ salary and compensation; how often the courts meet and the length of their sessions; and just as Congress can establish and set the number of lowers courts, so, too, can Congress also abolish them; etc.)
  • D. Robert Wright, officer in the Revolution, Maryland judge, early U. S. Senator: “[C]ongress can establish legislatively a court, and thereby create a judge; so they can legislatively abolish the court and eventually annihilate the officer…the inferior courts are creatures of the legislature, and that the creature must always be in the power of the creator – that he who createth can destroy.3
  • E. William Giles, member of the first federal Congress under the Constitution: “Is that [the Judiciary department] formed by the Constitution? It is not…It is only declared that there shall be such a department, and it is directed to be formed by the two other departments, who owe a responsibility to the people….The number of judges, the assignation of duties, the fixing of compensations, the fixing the times when, and the places where, the courts shall exercise the functions, &c., are left to the entire discretion of Congress. The spirit as well as the words of the Constitution are completely satisfied, provided one Supreme Court be established….Congress may postpone the sessions of the courts for eight or ten years, and establish others to whom they could transfer all the powers of the existing courts.4
  • F. As Rep. Steve King correctly explains, “Constitutionally, Congress can reduce the Supreme Court to nothing more than Chief Justice Roberts sitting at a card table with a candle” – a power that the Judiciary cannot reciprocally exercise over Congress.

2. THE JUDICIARY IS NOT TO BE AN INDEPENDENT BRANCH OF GOVERNMENT

  • A. John Dickinson, signer of the Constitution: “[W]hat innumerable acts of injustice may be committed – and how fatally may the principles of liberty be sapped – by a succession of judges utterly independent of the people?5
  • B. Thomas Jefferson: “It should be remembered as an axiom of eternal truth in politics that whatever power in any government is independent is absolute also; in theory only, at first, while the spirit of the people is up, but in practice as fast as that relaxes. Independence can be trusted nowhere but with the people in mass.6
  • C. Nathaniel Chipman, office in the Revolution, early Member of Congress, U. S. federal judge, Chief Justice of Vermont Supreme Court: “If the judges are made thus independent . . . they will become a dangerous body.7
  • D. Jonathan Mason, law student trained by John Adams and an early Member of Congress: “The independence of the judiciary so much desired will – if tolerated – soon become something like supremacy. They will, indeed, form the main pillar of this goodly fabric; they will soon become the only remaining pillar, and they will presently be so strong as to crush and absorb the others into their solid mass.8
  • E. Thomas Jefferson: “We think, in America, that it is necessary to introduce the people into every department of government. . . Were I called upon to decide whether the people had best be omitted in the legislative or judiciary department, I would say it is better to leave them out of the legislative. The execution of the laws is more important than the making them.9
  • F. Joseph Nicholson, early Member of Congress, successfully managed the impeachment of multiple early federal judges: “Give [judges] the powers and the independence now contended for and . . . your government becomes a despotism and they become your rulers. They are to decide upon the lives, the liberties, and the property of your citizens; they have an absolute veto upon your laws by declaring them null and void at pleasure; they are to introduce at will the laws of a foreign country…after being clothed with this arbitrary power, they are beyond the control of the nation. . . . If all this be true – if this doctrine be established in the extent which is now contended for – the Constitution is not worth the time we are now spending on it. It is – as it has been called by its enemies – mere parchment. For these judges, thus rendered omnipotent, may overleap the Constitution and trample on your laws.10

3. THE JUDICIARY IS NOT THE SOLE BRANCH CAPABLE OF DETERMINING CONSTITUTIONALITY

  • A. James Madison: “But the great objection . . . is that the Legislature itself has no right to expound the Constitution – that wherever its meaning is doubtful, you must leave it to take its course until the Judiciary is called upon the declare its meaning. . . . I beg to know upon what principle it can be contended that any one department draws from the Constitution greater powers than another in marking out the limits.11
  • B. Elbridge Gerry, signer of the Declaration and a framer of the Bill of Rights: “It was quite foreign from the nature of [the judiciary’s] office to make them judges of the policy of public measures.12
  • C. Luther Martin, framer of the Constitution and Attorney General of Maryland: “A knowledge of mankind and of legislative affairs cannot be presumed to belong in a higher degree to the Judges than to the Legislature.13
  • D. John Randolph of Roanoke: “[I]f you pass the law, the judges are to put their veto upon it by declaring it unconstitutional. Here is a new power of a dangerous and uncontrollable nature contended for…The power which has the right of passing – without appeal – on the validity of laws is your sovereign.14
  • E. Thomas Jefferson: “O]ur Constitution. . . . has given – according to this opinion – to one of [the three Branches] alone the right to prescribe rules for the government of the others – and to that one, too, which is unelected by and independent of the nation. . . . The Constitution, on this hypothesis, is a mere thing of wax in the hands of the Judiciary which they may twist and shape into any form they please.15
  • F. Rufus King, signer of the Constitution, framer of the Bill of Rights: “The judges must interpret the laws; they ought not to be legislators.16
  • G. John Randolph of Roanoke: “The decision of a constitutional question must rest somewhere. Shall it be confided to men immediately responsible to the people – the Congress, or to those who are irresponsible…the judges?….[a]re we [Congress] not as deeply interested in the true exposition of the Constitution as the judges can be? With all the deference to their talents, is not Congress as capable of forming a correct opinion as they are? Are not its members acting under a responsibility to public opinion which can, and will, check their aberrations from duty?17
  • H. Thomas Jefferson: “[T]he opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.18
  • I. James Madison: “[R]efusing or not refusing to execute a law, to stamp it with its final character. . . . makes the Judiciary department paramount in fact to the Legislature, which was never intended and can never be proper.19
  • J. Federalist #81: “[T]here is not a syllable in the plan [the Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution.20
  • K. Thomas Jefferson: “You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions – a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. . . . [A]nd their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective.21
  • L. President Andrew Jackson: “Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. . . . The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive.22
  • M. Abraham Lincoln: “I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court. . . . At the same time, the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made . . . the people will have ceased to be their own rulers, having . . . resigned their government into the hands of that eminent tribunal.23

4. FEDERAL JUDGES DO NOT HOLD LIFETIME APPOINTMENTS

  • A. The Constitution says that judges hold their office only during “good behavior” (Art. III, Sec. 1).
  • B. Federal judges may be removed by Congress for misbehavior, which, historically, did not include only criminal behavior but also other misbehavior.
  • C. Historically, federal judges have been removed from the bench by Congress for contradicting an order of Congress, for profanity, for rude treatment of witness in a courtroom, for drunkenness, for judicial high-handedness and a variety of other reasons.24
  • D. The Constitution provides six clauses on impeachment – the most often-mentioned subject in the Constitution.25
  • E. The Founding Fathers and early legal authorities were clear about the ground for impeachment:
    • 1. James Wilson, signer of the Constitution, original Justice on the U. S. Supreme Court: “[I]mpeachments are confined to political characters, to political crimes and misdemeanors, and to political punishments.26
    • 2. Justice Joseph Story, a “Father of American Jurisprudence” appointed to the Supreme Court by President James Madison: “The offenses to which the power of impeachment has been and is ordinarily applied as a remedy. . . . are aptly termed political offences, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests.27
    • 3. John Marshall, Chief Justice of the U. S. Supreme Court: “[T]he present doctrine seems to be that a Judge giving a legal opinion contrary to the opinion of the legislature is liable to impeachment.28
    • 4. George Mason, the “Father of the Bill of Rights”: “attempts to subvert the Constitution.29
    • 5. Alexander Hamilton: “the abuse or violation of some public trust. . . . [or for] injuries done immediately to the society itself.30
    • 6. George Mason, “Father of the Bill of Rights,” and Elbridge, signer of the Declaration and Framer of the Bill of Rights: “mal-administration.31
    • 7. William Rawle, legal authority and author of early constitutional commentary: “the inordinate extension of power, the influence of party and of prejudice32 as well as attempts to “infringe the rights of the people.33
    • 8. Justice Joseph Story, a “Father of American Jurisprudence” appointed to the Supreme Court by President James Madison: “unconstitutional opinions” and “attempts to subvert the fundamental laws and introduce arbitrary power.34
  • F. Federalist #65: “[T]he practice of impeachments [is] a bridle in the hands of the Legislative body.35
  • G. Justice James Iredell, a ratifier of the Constitution, placed on the Supreme Court by President Washington: “Every government requires it [impeachment]. Every man ought to be amenable for his conduct. . . . It will be not only the means of punishing misconduct but it will prevent misconduct. A man in public office who knows that there is no tribunal to punish him may be ready to deviate from his duty; but if he knows there is a tribunal for that purpose although he may be a man of no principle, the very terror of punishment will perhaps deter him.36

5. THE PURPOSE OF THE SUPREME COURT IS NOT TO PROTECT THE MINORITY FROM THE MAJORITY, AND CONGRESS IS A BETTER PROTECTOR OF MINORITY RIGHTS THAN IS THE JUDICIARY

  • A. George Washington: “[T]he fundamental principle of our Constitution… enjoins [requires] that the will of the majority shall prevail.37
  • B. Thomas Jefferson: “[T]he will of the majority [is] the natural law of every society [and] is the only sure guardian of the rights of man. Perhaps even this may sometimes err. But its errors are honest, solitary and short-lived.38
  • C. The Judiciary is now regularly anti-majoritarian.
  • D. The primary purpose of the Supreme Court is not to protect the minority from the majority.
  • E. The primary purpose of the Bill of Rights is not to protect the minority from the majority; the purpose of the Bill of Rights is to protect every citizen, whether in the minority or the majority, from the intrusion upon their rights by government.
  • F. Congress is a better guardian of the people and the minority than are the courts.
  • G. Federalist #51: “The members of the Legislative department . . . are numerous. They are distributed and dwell among the people at large. Their connections of blood, of friendship, and of acquaintance embrace a great proportion of the most influential part of the society. . . . they are more immediately the confidential guardians of their rights and liberties.39>
  • H. In 1875, Congress banned all segregation,40 but in 1882, the Supreme Court struck down that law.41 While the Court is often praised today for ending segregation in Brown v. Board of Education in 1954, what the Court actually did in that case was only to reverse its own position that had kept segregation alive 70 longer than Congress’ ban.
  • I. Thomas Jefferson: “When the Legislative or Executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them [the people] not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.42

Endnotes

1 James Madison, John Jay & Alexander Hamilton, The Federalist (Philadelphia: Benjamin Warner, 1818), 281.

2 James Madison, John Jay & Alexander Hamilton, The Federalist (Philadelphia: Benjamin Warner, 1818), 419-420.

3 The Debates and Proceedings in the Congress of the United States (Washington: Gales & Seaton, 1851), 7th Cong., 1st Session, 114, January 15, 1802.

4 Debates and Proceedings (1851), 7th Cong., 1st Sess., 585-586, 593, February 18, 1802.

5 John Dickinsonn, Leters from a Farmer in Pennsylvania, to the Inhabitants of the British Colonies (New York: The Outlook Company, 1903), 92, Letter IX.

6 The Writings of Thomas Jefferson, ed. Andrew A. Lipscomb (Washington DC: The Thomas Jefferson Memorial Association, 1904), XV:137, to Spencer Roane, September 6, 1819.

7 Debates and Proceedings (1851), 7th Cong., 1st Sess., 131, January 19, 1802.

8 Debates and Proceedings (1851), 7th Cong., 1st Sess., 63, January 13, 1802.

9 The Papers of Thomas Jefferson, ed. Julian P. Boyd (Princeton: Princeton University Press, 1958), 15:283, to the Abbe Arnoux, July 19, 1789.

10 Debates and Proceedings (1851), 7th Cong., 1st Sess., 823-824, February 27, 1802.

11 Debates and Proceedings ( 1834), 1st Cong., 1st Sess., 520, June 17, 1789.

12 The Papers of James Madison, ed. Henry D. Gilpin (Washington: Langtree & O’Sullivan, 1840), II:783, “Debates in the Federal Convention,” June 4, 1787.

13 Papers of James Madison, ed. Gilpin (1840), II:1166, “Debates in the Federal Convention,” July 21, 1787.

14 Debates and Proceedings (1851), 7th Cong., 1st Sess., 661, February 20, 1802.

15 Writings of Thomas Jefferson, ed. Lipscomb (1904), XV:213, to Spencer Roane, September 6, 1819.

16 The Records of the Federal Convention of 1787, ed. Max Farrand (New Haven: Yale University Press, 1911), I:108, from Rufus King’s records of the Convention from Monday, June 4, 1787.

17 Debates and Proceedings (1851), 7th Cong., 1st Sess., 661, February 20, 1802.

18 Writings of Thomas Jefferson, ed. Lipscomb (1904), XI:51, to Mrs. John Adams, September 11, 1804.

19 James Madison, Letters and Other Writings of James Madison (New York: R. Worthington, 1884), 1:194, “Remarks on Mr. Jefferson’s Draught of a Constitution for Virginia,” October 1788.

20 James Madison, John Jay & Alexander Hamilton, The Federalist (Philadelphia: Benjamin Warner, 1818), 436.

21 Writings of Thomas Jefferson, ed. Andrew A. Lipscomb (Washington DC: The Thomas Jefferson Memorial Association, 1904), XV:277, to William Charles Jarvis, September 28, 1820.

22 James D. Richardson, A Compilation of the Messages and Papers of the Presidents (Published by Authority of Congress, 1899), III:1145, “Veto Message,” July 10, 1832.

23 The Works of Abraham Lincoln, ed. John H. Clifford (New York: The University Society Inc., 1908), V:142-143, “First Inaugural Address,” March 4, 1861.

24 Congressional Record (Washington: Government Printing Office, 1933), 76:4914-4916, Impeachment articles against Harold Louderback, district judge for northern California, February 24, 1933; Congressional Record ( 1905), XXXIX:1281-1283, Impeachment articles against Charles Swayne, district judge for northern Florida, Junary 24, 1905; Congressional Record (1912), XLVIII:9051-9053, Impeachment articles against Robert W. Archbald, third circuit judge, July 15, 1912; Congressional Record (Washington: Government Printing Office, 1926), LXVII:6585-6589, Impeachment articles against George W. English, district judge for eastern Illinois, March 30, 1926; Floyd Riddick, Procedure and Guidelines for Impeachment Trials in the United States Senate (Washington: Government Printing Office, 1974), 10-13.

25 See The Constitution of the United States of America, available online at https://www.archives.gov/national-archives-experience/charters/constitution.html; Impeachment is mentioned in the following clauses: Article I, Section 2 and Section 3, Article II, Section 2 and Section 4, Article III, Section 2.

26 The Works of the Honorable James Wilson, ed. Bird Wilson (Philadelphia: Bronson and Chauncey, 1804), II:166, “Of the Constitution of the United States and of Pennsylvania—of the Legislative Department.”

27 Joseph Story, Commentaries on the Constitution of the United States (Boston: Hilliard, Gray & Co, 1833), II:233-234, Sec. 762.

28 The Papers of John Marshall, ed. Charles F. Hobson (Chapel Hill, VA: The University of North Carolina Press, 1990), VI:347, to Samuel Chase, January 23, 1805.

29 The Papers of James Madison, ed. Henry D. Gilpin (Washington: Langtree & O’Sullivan, 1840), III:1528, “Debates in the Federal Convention, 1787.”

30 Madison, Jay & Hamilton, The Federalist (1818), 352.

31 Papers of James Madison, ed. Gilpin (1840), III:1528, “Debates in the Federal Convention, 1787.”

32 William Rawle, A View of the Constitution of the United States of America (Philadelphia: Philip H. Nicklin, 1829), 211.

33 Rawle, A View of the Constitution (1829), 210.

34 Joseph Story, Commentaries on the Constitution of the United States (Boston: Hilliard, Gray & Co, 1833), Vol. II, p. 268,

35 Madison, Jay & Hamilton, The Federalist (1818), p. 353,

36 The Debates in the Several State Conventions on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia in 1787, Jonathan Elliot, editor (Washington: Printed for the Editor, 1836), IV:32, July 24, 1788.

37 Richardson, Messages and Papers of the Presidents (1899), I:156, from the “Sixth Annual Address” of November 19, 1794.

38 Papers of Thomas Jefferson, ed. Boyd (1961), XVI:179, “Response to the Citizens of Albermarle,” February 12, 1790.

39 Madison, Jay & Hamilton, The Federalist (1818), p. 275.

40 The Statutes at Large (Washington: Government Printing Office, 1875), XVIII:3:335-337, “An Act to protect all citizens in their civil and legal rights,” March 1, 1875.

41 The Civil Rights Cases, 109 U.S. 3 (1883).

42 Writings of Thomas Jefferson, ed.. Lipscomb (1904), XV:278, to William Charles Jarvis, September 28, 1820.