"WE THE PEOPLE"

                 THE PREAMBLE TO THE CONSTITUTION

                       

                        We the People of the United States, in Order to form a more perfect Union

                        establish Justice, insure domestic Tranquility, provide for the common defence, 

                        promote the general Welfare, and secure the Blessings of Liberty to ourselves and

                        our Posterity, do ordain and establish this Constitution for the United States of America.

"WE THE PEOPLE"

Actually, "We the People" had no direct input into writing the Constitution.  It was framed behind closed doors by a few people selected by their state legislatures to represent their interests and who were sworn to secrecy to the extent that no other officials outside of this group or people of importance were informed of its deliberations.   Beyond that, "the People" had no direct role in ratifying the Constitution as each state held its own ratifying convention attended by elected or appointed representatives.  Nevertheless, the "We the People" statement was placed at the start of the Constitution on our behalf by its framers.

Some delegates attending their state's ratification convention questioned the validity of saying "We the People," suggesting that the Preamble state "We the States" as the voting populace were not directly involved in ratifying it.  Although ratification was not subjected to a popular vote, "We the People" stuck and was ratified, an under appreciated and overlooked fact.  In Article I of the Constitution, the framers wanted to emphasize that they were thinking in terms of all the people residing within the territory of the thirteen original states, including the enslaved black and the indigenous Indian   

Slaves were not mentioned as such but are included in the "three fifths of all other persons" clause in order to secure the slave states ratification.   Indians who roamed the territories were not taxed; as such, they were not included in the population count.  It is important to realize that these clauses validate that "We the People of the United State," implies every person living within the United States.  No person outside of the Philadelphia Constitutional Convention in 1787 had a vote or any say in its development giving "We the People" broad application.  There were only fifty-five delegate from twelve original states (Rhode Island did not send any delegates) who attended that convention.   Of the fifty-five delegates only thirty-nine signed it.  

The Constitution was never ratified by "We the People of United States" but rather by the delegates sent to the ratifying conventions of the original thirteen states.  The point being that Federal Republic was designed to be a representative democracy in which the vast majority of the voting public had little to no direct say in choosing its federally elected officials.  

CONSTITUTIONAL INTENT

It is hard to determine intent when it comes to what the framers of the Constitution were thinking.  We know that the three branches of the federal government were intended to function as a check and balance to each other.  We know that the framers were concerned about detrimental effects partisanship and populism; that the "hoi polloi"  (the common masses who were too ill-informed and prone to partisan entanglement) could not be relied on to choose leaders, qualified and virtuous enough, to lead the nation as a whole.  To that end they established a limited electoral processes regarding the three branches of government.  

Originally, Article I of the Constitution addressed the legislative branch consisting of a House of Representatives elected by the voting public of each state for a two year term. The number of representatives was based on the size of a state's population.  Senators were originally elected by state legislatures for a six year term, with each state having two senators.  Senators were not chosen by popular vote until the Seventeenth Amendment in 1913. 

Article II of the Constitution addressed the Presidency, the highest singular office in the government.  To elect the President, the framers came up with the idea of state electors based on the number of their federal representatives and senators, although no representative or senator could be chosen as an elector.  The current selection of electors remains prone to sectionalism and partisanship by quashing the minority vote in each state, a result of most state electors being chosen by a nominee's party.   

Article III concerns itself with the judicial branch of the government.  In choosing Supreme Court justices, it is the President who nominates a justice and the Senate who confirms the justice.  The voting public has no direct say who will serve on the Supreme Court.  Supreme Court justices are appointed to life terms. 

THE DANGERS OF PARTISANSHIP AND POPULISM

While the founding fathers and the framers of the Constitution were wary of partisanship and populism dominating the newly minted republic's affairs, they also knew they could not prevent partisanship from occurring.  Such concerns were addressed in the Federalist Papers published in New York in 1787.   People gravitate towards like-mindedness in the form of partisan loyalties.  Democracies readily succumb to partisan politics and populism.  Political parties are prone to vie for whatever political flavors the voting public seems attracted to at the moment.  They may even create political issues to attract the attention of the voting populace.  Partisanship has a tendency to turn politics into a metaphorical blood sport that can put the Republic at risk of engaging in actual blood-letting.   

The concept of three branches of government serving as a check and balance to each other is the Constitution's attempt at immunizing the Republic from imbalances caused by overt partisanship and populist endeavors where loyalty to party and following the crowd is more important than loyalty to the Constitution.   I believe there is value in reducing the footprint of overt partisanship and extreme populism from the affairs of government.

The dangers of partisanship and populism is that they are prone to distort and erode the Republic's democratic processes at the federal level by diminishing the importance of the roles democratic processes have at the state and local level where the people have a direct voice in shaping the nation's political agenda at a foundational or root level.  Who we elect to serve at the local, county, and state levels ultimately has a direct effect on who governs at the federal level. This is evidenced by statistics that show voter participation at the local or state levels drop significantly when there is no one running for an elected federal position, like a seat in the House, the Senate, or the President.  

What seems to have been the intent of the founding fathers and Constitution's framers was for the authority of the federal government to stem from the outcome of elections at the local level and state levels where the people had a direct voice in electing those who served at such levels.  In turn, those elected at the state level had a voice in determining who served at the federal level.  Originally at the federal government was intended to become increasingly representative of "The People" with a state's representatives being the only elected federal officials directly elected by the people of a given state.  Originally those who served in the Senate, the President, and the justices of the Supreme Court were not elected by a popular vote.   The conundrum the framers appear to have struggled with was how to ensure that the best minds and the most virtuous individuals were chosen democratically to govern the nation on behalf of all the people residing in the United States. 

BARGAINING CHIPS

The framers knew what they were up against when it came to securing the Constitution's ratification by the original thirteen states who largely saw themselves independent of each other and only loosely bound to each other as a confederation.  "We the People of the United States" was largely understood as we the people of the various states, who owed allegiance more to their states than to the loosely defined union of the states.  There were all sort of potential blockades to ratification; sectionalism, the slavery issue, and ensuring that each state had an equal voice in the governance of the federal republic.  There would undoubtedly have to be some bargaining amongst the states and the framers to ensure ratification.

The biggest bargaining chips dealt with how to deal with choosing the number of representatives each state was entitled to in congress.  This, in turn, determined how many electoral votes each state would have in choosing the President.  The 3/5th's Compromise allowing southern states to compete with northern states in representation where slavery was less of an issue was an important one that led to tragic results.   The issue of slavery would eventually become a partisan issue that would thrust the nation into a civil war, something the framers feared most and Congress attempted to avoid through compromise until it was unavoidable.  In the end, the Union was saved and the slaves were emancipated and granted citizenship rights including the right to vote. 

Unfortunately partisanship was deeply entrenched in the public's mind by then and there seemed to be no interest in reviewing or revising the structural flaws (earlier compromises) that continue to haunt the Republic to this day.  By the twentieth century there was an increasing effort to ensure white voter supremacy at the poles while attempting to increase a direct say who serves in Congress by choosing Senators by popular vote in all of the states.   State electors were chosen by a nominee's party and most states as noted above had chosen to adopt a winner-takes-all approach in determining who would win the electoral votes in a state's election for the President of the United States. The exception to a winner-takes-all approach are the states of Maine and Nebraska.

  

These developments further entrenched partisanship as the dominate force driving the Republic's political decisions.  While these developments certainly gave people more of a direct voice in the political affairs of the United States at the federal level, they also opened the door for more partisanship in political affairs and divisiveness caused by populist sentiments to the point that in the twenty-first century the union is once again at risk.  This due to an abandonment of the Preamble's promise.  Justice continues to be largely biased by race. Domestic tranquility,  the common defense, and the general welfare of the people is largely perceived as a sham because partisanship has distorted their meanings.

Having a greater say by the majority of people in the United States is becoming the nightmare envisioned by the founding fathers.  It is increasingly clear that the majority of the people are not intellectually astute enough to critically assess the vast amount of information it is exposed to on a daily basis.  For the Republic to stand firm and be constitutionally sound requires that from THE PEOPLE emerges an elite few who are broadly knowledgable, have a critical understanding of the nation and the needs of its diverse population, and who are devoted, above all, to forming a more perfect union securing the blessings of liberty to ourselves and our posterity, 

In my next post, I will examine amending the failures of the past.  

  

Norm

OUR DEMOCRACY'S ELECTORAL DILEMMA

"OUR DEMOCRACY"

One of the common concerns in democratic countries today is whether democracy is sustainable.  In the United States, the concern most commonly referenced is in regard to"Our Democracy."  The term, "Our Democracy," is a bit confusing.  I'm not sure what that term actually is means.  Democracy is a tool used by governments to elect who is imbued with decision-making power and the responsibility for its use.  

Properly defined, the United States of America is a representative, federal republic.  The United States is not nor was it ever conceived to be a pure democracy where the majority rules.  Most of the founding fathers shuddered at the thought of majority rule and populism.  Their concern was not creating a pure democracy but rather a constitutional republic which utilized democratic processes. 

Another issue that many of the founding fathers lost sleep over was the notion of partisan politics.  Although impossible to avoid, they wished to limit its impact on the collegial decision-making within and between the Congress, the Presidency, and the Supreme Court.  They attempted to do this by defining how members of the three coequal branches of the Federal Government would be chosen.  

At the time the Constitution was being framed, the states had larger role in choosing who would serve in Congress and who would be elected as the President of the United States.  The voters of each state elected who would serve in their state legislators and who would serve as their representatives in House of Representatives, but it was left up to state legislators to decide who would serve in the U.S. Senate. Although senators were  originally chosen by state legislatures, this changed in 1913 with the Seventeenth Amendment to the Constitution  which changed the Constitutional language from “chosen by the Legislature thereof” to “elected by the people thereof.”  I consider this a grave political mistake that created a partisan dilemma with regard to how the Republic's constitutional processes were intended to work. 

AN ACHILLE'S HEEL

When it came to electing a president, each state would choose electors based on the number of its congressional members in the House and in the Senate. These electors would then cast their votes for the President.   Today most states have a winner-of-the-popular-vote takes all approach to casting its electoral votes.  Only Maine and Nebraska have a proportional electoral votes based on who wins congressional districts.  Electors in most states are chosen by a state's political parties. This is where the flaw in the electoral process regarding the Presidency resides because it renders choosing the person to the serve in most powerful office in the United States a partisan process which, in turn, is subject to majoritarianism and populism, the nightmare feared most by the founding fathers.  

Unfortunately, the electoral college concept was used as a pawn to entice states to ratify the Constitution who could determine how its electors were chosen.  As noted above, most states utilized the electoral college process as a winner take all concession to a state's popular vote outcome in a presidential election. This fact strikes me as incongruent with how members in the Senate were originally chosen and what the framers might have privately envisioned with regard to the role of the electors. 

More than any other national election, it is a presidential election that engages the majority of the voting public in the  United States, which has become an increasingly chaotic process for some time.  I understand that the framers of the Constitution wanted the state's to have a direct say in choosing the president because that was the only way for the states to buy into the Constitution.  Using the electoral college as a bargaining chip in amongst other only resulted in creating the Constitution's "Achille's Heel."  Presidential elections have driven the United States to extreme partisanship that led to a civil war and the extreme political divisiveness within the United States today.  

Extreme partisanship is once again ruining the United States, just as the framers of the Constitution feared it would.  What interests me about the Constitution is that the framers began by creating an electoral model that began by keeping the voting population engaged democratically at the local or state level, but at the federal level, the foot print of the voting populace became increasingly sparse.  As noted above, members of the House of Representative were the only federal officials elected by the voting public of their state.  Senators were originally elected by state legislators and  Supreme Court justices were nominated by the President and confirmed by the Senate, as were other officials within the federal government.

What is inconsistent with an attempt to avoid partisan politics, is that the highest office in the United States relies on state electoral votes determined by a state's popular vote.  Logically, based on how Senators and Supreme Court justices were chosen, the idea of an electoral college should not have been dependent on a state's popular vote. The electoral college should have served as a barrier to partisan politics, similar to what the Conclave does in choosing the Roman Catholic pope. 

DROPPING THE BALL

I am not sure what the framers of the Constitution had in mind when they came up with the idea of an electoral college.  Was it always their intent to have the states choose who their electors would be?  If that was so, why didn't they let the states choose electors for the Supreme Court Justices also?   

There is an inconsistency in what started out as political processes aimed at limiting the influence of partisan politics at the highest levels of government.  It is not that the voting public didn't have a role to play in electing federal officials, but rather that their role was reflected in those elected a state level and for the House of Representatives  Why would the office of the President, the single most powerful office in the United States, be subject to a direct popular vote when senators and justices of the Supreme Court were not?

I perceive that most voters in the United States today would prefer that the President be elected by the popular vote (depending on a given elections outcome).   I disagree.  The popular vote, I believe, was never intended to dictate who serves in the highest offices of the United States.  I believe the framers were very wise not to elect the President by a popular vote.  Where they dropped the ball was in letting the states choose who would be their electors, thus resulting in making it a partisan undertaking.  

The winner-takes-all concept sidesteps any practical role electors having in choosing the President.   Their role is largely ceremonial.   Technically speaking, an elector can choose to cast a vote against his or her party, but in some states they would face fines or be replaced. In seventeen states their votes would be voided.  Regardless of how a state would handle that situation,  such an elector would most likely be considered pariah by their party.   Very few have attempted to do so.

If the framers of the Constitution wanted to limit partisanship from dominating the Republic's political structure, the presidency, above all else should have been placed beyond the reach of partisanship.  Likewise, the Seventeenth Amendment should have never been enacted.   To be clear, I'm not amongst those who claim to be constitutional originalists.  What fascinates me about the Constitution's framers is that they did not, in my opinion, follow through on an electoral pattern they established when choosing senators and Supreme Court justices.  

In my next post, I will examine how some of the pitfalls of the electoral processes of today could have been avoided if the framers had not dropped the ball.  

Norm