In Rekindling Constitutional Ambition, his recent post for Law and Liberty, Yuval Levin offered some particularly helpful insights for thinking through our constitutional problems. As Levin points out, friends of the Constitution are currently in a period of uncertainty about what goals they should be aiming for, even apart from the usual confusion over how to achieve their goals. Some friends of the Constitution argue that the election of Donald Trump to the presidency would allow for a revival (such as the writers at the Journal of American Greatness blog), while others (such as the signers of the Originalists against Trump statement) argue that it would undermine obedience to the Constitution as that document was originally intended.
Archives for November 2016
The main value of the Electoral College today is that it generates clear winners when the popular vote is unclear. One might fairly ask how the popular vote for president in 2016 was not clear – Hillary Clinton received over 500,000 more votes than Donald Trump in the most current count, after all. And that’s true enough. But majority rule is not about who gets the most votes, it’s about who receives a majority of the votes. And Hillary Clinton did not receive a majority of the popular vote.
The Electoral College has long been the strange uncle of the American Constitutional order—little understood and even less appreciated. But there is a reason that hundreds of amendments have been submitted to change the system and none of them have come even close to passage in more than forty years: it works!
Many universities are now in the business of creating “safe spaces.” The concept is not well defined but includes establishing actual physical spaces that will be reserved for some group, generally a group that a university defines as a minority. But some of these same universities also impose so-called “all comers policies,” in which no group is permitted to exclude anyone even from its elected offices on the basis of their beliefs. Thus, for instance, Christian groups would have to admit atheists even as potential leaders.
But policies that create safe spaces are in substantial tension with those that require clubs to accept all comers. A group of Christian evangelicals might well believe that it may be more effective in its mission if its members shared its basic beliefs. It might also make its members feel more comfortable discussing them, if the organization did not have opponents in its midst. That is not to say that a restrictive charter creates the ideal form of such an organization: some groups of evangelicals might well welcome embrace debate at every turn and benefit from the intense scrutiny of every argument.
One of the virtues of allowing groups to make such decisions is that a community would no doubt get a range of distinctive spaces for speech generated by different trade-offs between mission and openness. Another is that the university would respect many different forms of diversity that bubble up from below rather than just those that conform to its official line on what kind of diversity matters. Most importantly, a university that is dedicated to creating places where people can feel comfortable, but does not want to be in the business of creating official restrictions on speech in student life should also be pleased with the self-organization of overlapping spheres of debate.
In war, sitting out protects one’s bodily safety. Sitting out of the morally messy struggles typical of adult human life protects one’s sense of superiority and innocence. Doing the good sometimes requires an odd courage: accepting the risk of getting the soul’s hands dirty. But how and how much to dirty one’s hands are difficult to discern.
As it does every year, a new Supreme Court term has begun in Washington. This time, however, the Court’s composition is a bit unusual. At the moment, the Court has only eight members; a successor for the late Justice Antonin Scalia, who passed away in February, has not yet been appointed. But the Court’s composition is unusual for another reason, too: the religious backgrounds of the justices.
How can we ensure that government officials use their powers in the public interest?
The Framers of the Constitution recognized that in a country as extensive as the United States, compromise between partisan groups was the price of Union. The zone of acceptable compromise had constantly to be calculated and reconsidered because Americans put the Constitution to practical use by using it as a partisan instrument to win substantive policy conflicts.
Some already seek to delegitimize Donald Trump’s decisive victory in the Electoral College, on the grounds of his failure to win the popular vote. But in the close elections where the results of the Electoral College and the popular vote diverge, the popular vote result has no electoral significance because the candidates did not try to win the popular vote. If they had tried to get the highest popular vote, they would have campaigned entirely differently. Donald Trump would have campaigned more in Texas to increase his vote and Hillary Clinton would have campaigned more in California. They would have run their television advertisements in different places. And perhaps fewer citizens would have voted, because many more would have thought their vote was unlikely to change the large national count.
Given the less than 200,000-vote margin separating the candidates, we cannot be certain who would have won the popular vote had the candidates been aiming for a popular majority. As I said in a similar discussion of Bush v. Gore, “paying attention to the popular vote this context is like suggesting we should pay attention to the total number of runs a team got in the World Series rather than the number of games won.”
A second myth to delegitimize the Electoral College and thereby Trump is to claim that the Electoral College advantages the small states.