Caricatures by DonkeyHotey
Used with permission
By, Chris Ricchetti | 30 June 2022
Rebuttal by, James S. Eggert, Esq.
On the occasion of the end of the October 2021 Term of the Supreme Court of the United States
…to secure these [inalienable] Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, …
Thomas Jefferson (1776)
Ordered liberty sets limits and defines the boundary between competing interests.
Associate Justice Samuel A. Alito, Jr. (2022)
Agreement Across the Abyss
As bitterly divided as this country is ideologically, there is greater than 60% agreement on at least a dozen important issues—including the right to abortion (61% – Pew, 2022), the right to gay marriage (71% – Gallup, 2022), reasonable gun restrictions (63-87%, depending on the proposed restriction – Pew, 2021), regulation of carbon emissions and public investments in clean energy (71-90%, depending on the proposal – Pew, 2020) and several others—including many aspects of police reform (63-89%, depending on the proposal – University of Maryland, 2020).
If democracy were working in the United States, we would already have Federal laws establishing and protecting abortion rights, marriage rights, gun safety, emissions standards, and the rest—because these are things that a supermajority of Americans want.
But we are falling far short of the promise of American democracy—government of, by and for the people. Objectively, a huge segment of our existing laws and regulations conflict with the will of the majority of our citizens, and precious few broadly supported proposals for new legislation are ever enacted.
How did this happen?
Origins of the Electoral College
The Framers of the Constitution were determined to immunize the Republic against the “Tyranny of the Majority,” a danger that Western political philosophers dating back to ancient Athens had long held was the chief vulnerability of democracy, and against potential abuses of Presidential power. The Southern delegates to the Convention were concerned specifically with protecting the institution of chattel slavery from Northern abolitionist “tyranny.”
One of several preventative devices that the Framers established was to grant both greater parliamentary and greater electoral representation per capita to the citizens of less populous (“smaller”) states than to the citizens of more populous (“larger”) states. Without these assurances—to allay Southern fears that the more numerous and more populated Northern states might garner Congressional and Presidential power sufficient to end slavery—the Union of the colonies would not have endured.
The Electoral College was born of the same concern—to protect minority interests generally (not only slavery) from being trampled upon by “mob rule.” Ironically, for all their grand declarations about all men being equal and liberal democracy being the best form of government ever devised, many of the Framers had serious reservations about the new Enlightenment values. It all sounded great on paper. But, at the time, liberal democracy was largely untested, and no one could be certain that We the People would act out of reason, rather than passion. Many feared that a populist tyrant might assemble a popular majority and ascend to the Presidency by swaying impressionable, under-informed voters—perhaps they were onto something!
“Every white, male landowner shall have his say at the ballot box,” they reasoned. “But, as a safeguard against passion-driven voters unknowingly electing an un-democratic, incompetent, or even tyrannical Executive, we will let a small cadre of the ‘smartest’ men from each state—the ‘Electors’—make the final decision.”
From the beginning, the Framers installed an oligarchic “escape hatch,” just in case liberal democracy turned out to be messier than anticipated[1]. Very likely they were influenced by those among the ancient Greeks who were enamored with the possibility of a non-tyrannical aristocracy comprised of wise, benevolent, virtuous leaders acting in the public good (e.g., Plato’s “Philosopher Kings” who embody the union of wisdom with political power). While most of their writings reflect a quite enlightened view of human nature, the Framers could be intermittently naïve. According to Alexander Hamilton, they hoped that the decentralized structure and short tenure of each Electoral College would minimize the likelihood of widespread corruption (see The Federalist, No. 68).
The Framers wanted to believe wholeheartedly in government by consent of the governed, but they could not quite bring themselves to go all-in. That is why they established the Electoral College. The elites of the Electoral College would save the people from their own irrationality, should that ever become necessary. The elites would have discretion to overrule the People’s Will, should the people ever make an “irrational” choice for President of the United States.
Over-Representation of Smaller States in Presidential Elections
The Electoral College as originally conceived was a temporary, independent body consisting of Electors, appointed by state legislatures[2], who had free reign to elect the President, regardless of general election results. In time, however, each state passed legislation compelling its Electors to vote in accordance with the will of the state’s voters, as reflected in the popular vote count. With Electors stripped of the power to vote independently, the Electoral College lost its raison d’être and electoral vote counting became a mere formality. The Framers’ oligarchic “escape hatch” was thereby rendered ineffectual.[3]
This disempowerment of the Electors brought the country a step closer to true representative democracy. That’s the good news.
Unfortunately, in the course of making this change, all but two of the states made a grievous error. They replaced the autonomy of the Electoral College with something almost as un-democratic: except for Nebraska and Maine, every state passed legislation allocating all of its electoral votes to the presidential candidate who wins its popular vote. As a result, presidential elections are decided based on fifty discrete state elections—each having a population-based “point value”—rather than one unified national election.
Consequently, in two presidential elections since 2000, the “winner” lost the national popular vote, yet he ascended to the Presidency on the basis of having tallied more electoral votes than his opponent.
If, instead, the states had decided to allocate their electoral votes in proportion to the number of popular votes cast for each candidate—as Nebraska and Maine do—any incongruity between the popular and the electoral vote counts would be extremely unlikely[4].
It is not the existence of the Electoral College per se that is yielding un-democratic election results in the modern era. It is the “winner-take-all” allocation of electoral votes by the states that is fatally flawed.
What, specifically, is wrong with the existing “winner-take-all” approach?
The over-representation of small-state residents in presidential elections was agreed to by the Framers and has been a feature of our electoral system from the beginning. But the disparity has gotten worse over time.
In 1790, each resident of Delaware (the smallest state) enjoyed 81% more representation in the Electoral College than each resident of Virginia (the largest state)—not quite double[5] (see orange line in Chart 1).
Today, the residents of Wyoming have 281% more influence on the electoral vote count than their friends in California. Another way of saying the same thing is that the electoral influence per capita of Wyoming is almost quadruple that of California (see blue line in Chart 1).
But the problem is worse than that—much worse.
Due to the “winner-take-all” allocation of electoral votes adopted by forty-eight of the fifty states, “blue” voters living in “red” states are quite literally disenfranchised, as are “red” voters living in “blue” states. For example, not only does voting for the Republican presidential candidate in the true-blue state of Illinois have no effect on the outcome of the election, simply by virtue of living in Illinois (and being counted in the census), Republican voters actually add to the electoral influence of their Democratic opponents!
At this point in our history, most states are either solidly “red,” or solidly “blue,” which means that voters in the remaining “swing states” are the real deciders. In only twelve of the fifty states is there any reasonable chance that either presidential candidate could win. And there are probably only seven states now that are truly competitive—Florida, Pennsylvania, Ohio, North Carolina, Michigan, Wisconsin, and Iowa. Georgia may soon become competitive and, eventually, Texas will too.
Even in the swing states, where voting matters most, all of the votes cast for the candidate who ultimately loses a state’s popular vote are essentially disregarded, as 100% of each state’s electoral influence goes to the state’s popular vote winner.
This is no way to run a democratic republic. Even the Framers were not altogether satisfied with the Electoral College system they had devised. But after one hundred days of exhausting deliberations, it was the only system on which they could agree.
Over-Representation of Smaller States in The Senate
Here again, some degree of unequal representation was agreed to by the Framers—to assure smaller states of meaningful participation in the legislative process.
In 1790, Delaware’s per capita representation in the Senate was 12.7 times greater than Virginia’s (see orange line in Chart 2).
Today, Wyoming’s per capita Senatorial representation is 68.5 times greater than California’s—more than a five-fold increase in the Senatorial representation gap since 1790 (see blue line in Chart 2).
In fact, the 25% of Americans who live in the smallest states are represented collectively by 61.0 senators, while the 25% of Americans who live in the largest states are represented by just 5.3 Senators[6] (see table). That leaves 33.7 Senators for the 50% of Americans who live in “medium-sized” states.
There is, of course, also a Senatorial representation gap between the “Two Americas.” Solid-Red America (33.85% of US population) controls forty-six Senate seats, while Solid-Blue America (43.19% of US population) controls only forty. Purple America (22.96% of US population) is represented by the remaining fourteen Senators.
We are a long way from the democratic ideal of “one person, one vote.”
The unequal distribution of Senatorial representation is hugely consequential.
The Senate has the power to confirm, to reject, or to delay indefinitely the seating of every judge across the entire Federal judicial system—the entire Third Branch of the Federal government—including District Courts, Circuit Courts, Appellate Courts, and the Supreme Court.
The Senate has the power to confirm, to reject, or to delay indefinitely the filling of all fifteen Cabinet positions, all ambassadors to foreign nations, all directors of regulatory and some non-regulatory Federal agencies, members of the Federal Reserve’s Board of Governors, and others—nearly twelve hundred positions appointed by the President.
When the Senate is controlled by the party opposing the President, Senators can (and do) wreak havoc on the Executive Branch, maintain vacancies in important positions for years, and greatly impede the President’s effectiveness. Even when the opposing party is in the minority, there is a lot that Senators can do to thwart the President’s efforts to govern.
The Senate has the power to remove impeached government officials from office—or to turn a blind eye to high crimes and treason—as it did twice for former President Trump. That is certainly a consequential power.
Perhaps most importantly, nostalgic devotion to the Cloture Rule (the “Filibuster”)[7] in combination with the wide disparity in Senatorial representation, makes it far too easy for Senators, acting on behalf of narrow, minority interests, to block the passage of urgently needed legislation that is supported by a supermajority of Americans. It is maddeningly difficult for even the most well-intentioned lawmakers to get an up-or-down vote on many bills that the People want enacted.
As years of orchestrated gridlock and inaction roll by, the disconnect between the Will of the People and the Laws that govern them grows more pronounced. The existence of this growing disconnect is conclusive evidence that representative democracy in the United States is floundering.
Only as one begins to appreciate the magnitude of the electoral and Senatorial representation gaps do the otherwise bewildering phenomena of American politics begin to make sense.
Add to all of this, the gerrymandering of Congressional districts, laws aimed at disenfranchising minority voters, unlimited “soft” money, American lobbyists advocating for dictators and other corrupt foreign interests, electioneering by foreign actors, corporations as people, and money as speech.
Is it any wonder that the Will of the People goes unheeded?
Where Congress Fails to Act, SCOTUS is Happy to Oblige
Congress’ abdication of its responsibility to legislate the People’s Will means that six (unelected) Supreme Court Justices will now settle all the important issues that the Congress has failed to address. As a direct consequence of Congress’ failure, six theocratic reactionaries—who see the world very differently than most Americans—are now poised to radically re-shape the contours of American life in all kinds of ways that a supermajority of Americans do not support. Now we must contend with the Tyranny of the Minority.
But don’t blame the Justices. It is solely because of Congress’ fifty-year failure to codify the right to abortion that the issue came before the Supreme Court in the first place.
If you don’t see the Constitution as a living, breathing document, then Justice Alito’s originalist legal reasoning is quite sound. He is right. There is no explicit right to abortion granted under the Constitution, nor is there any right to abortion deeply rooted in our history and tradition. To the contrary, as Justice Alito rightly points out, abortion at any stage of pregnancy was illegal in three-fourths of the States on the day that Roe was decided. Justice Alito is also quite correct in his assessment of the reasoning provided in Roe. It is weak and, in places, not even factually correct.
But what of stare decisis—and, with regard to Roe and Casey, deference to precedent-on-precedent? It is hard to disagree with Justice Alito’s assertion that bad precedents ought to be overturned—“bad” according to whom, though?
Bruen (most especially) and Dobbs illustrate the absurdity of Originalism. Originalists seem to be possessed of the quasi-religious belief that anything short of total fidelity to the language and world view of the Eighteenth Century will take us down a slippery slope of relativism and lead to the complete breakdown of the Constitution as an institution. And so, as we move further and further from the language and world view of the Eighteenth Century, originalists like Justice Alito insist that we remain forever anchored in the inerrant wisdom and foresight of the Framers.
Is not the very idea that every aspect of modern life should be evaluated from the two-hundred-and-thirty-five-year-old perspective of the Framers absurd on its face?!
Must we continue to pretend that the Framers had any meaningful frame of reference for the advances in medicine that would come? Or the immense lethality that can now be carried over one’s shoulder into schools, churches, movie theaters, night clubs, and grocery stores? Or the establishment of a national standing army (most of the Framers were adamant that this country should never have one) on the scale of the modern US Military? Or the awesome power of cable “news” and the internet to bring out the worst in us? Or the catastrophic danger of global climate change that now threatens virtually all advanced life on this planet? Or the many ways in which American demographics and values would change and evolve? Or the vast power and influence of global corporations (British East India Company notwithstanding)? Or the unconscionable economic inequality that too many years of under-regulated capitalism would bring? Or the emergence of offshore corporate and personal tax havens? Or cryptocurrencies? Or the profound impact of American politics on the entire world? Or the dependence of democracy throughout the world on the military might of the United States? Or the possibility of mutually assured nuclear annihilation?
Each of these developments calls us—carefully, thoughtfully, in good faith, and with fear and trembling—to find better ways to honor all of the Spirit and most of the Letter of the Constitution, as we seek to apply its wisdom and authority to the realities of modern life.
I am certain that Thomas Jefferson would agree. As I have written previously, Jefferson was, by the standards of today’s conservatives, a radical, extremist anti-originalist, who intended a living, breathing, evolving Constitution.
The (New) Era of American Lawlessness[8]
It is bad enough that the Congress cannot move the country forward by passing laws that reflect the Will of the People. Now we have an ensemble of Christofascists ready, willing, and determined to move American Law backwards—even further away from what most Americans want!
In a purportedly democratic society what incentive is there for citizens to comply with a system of laws that most of them do not support?
Democracy derives from and depends upon the consent of the governed—remember?
The six conservative Justices do not have the sound judgment or the common sense to see that ruling against the will of the supermajority on so many aspects of American life will inevitably result in serious erosion of the Rule of Law.
The Justices should not take it for granted that law enforcement will have the will to enforce every change in the law that results from the rulings they make. Cops and prosecutors at all levels—Federal, state, and local—are going to decide for themselves which laws they enforce and prosecute within their jurisdictions, and which laws they ignore.
Individual citizens will do the same, deciding for themselves which laws to follow and which to ignore, based upon their own values and beliefs, greatly undermining respect for Law—not just the “controversial” laws, but all laws.
Worst of all, the ideological divide in this country is now going to become institutionalized, as the various state and municipal legislatures make their own “red laws” and “blue laws” without regard for any ruling of the Supreme Court with which they disagree—resulting in a patchwork of conflicting, yet overlapping legal regimes based on radically different ideologies.
It will be a jurisdictional nightmare, replete with divided loyalties, corruption and injustice, law enforcement personnel gone rogue, and spotty accountability. In some cases, Due Process of Law will become all but impossible to ensure.
In Chicago, a state’s attorney will decide to make an example of some red-state visitors in possession of assault rifles—regardless of any applicable ruling from SCOTUS. This will bring thousands of AR-15-toting “patriots” to Chicago in protest. How’s that going to end?
At some point, in flagrant disregard for a dozen laws, a prosecutor and a judge in Texas will orchestrate the literal kidnapping of California citizens who in some way facilitate abortions for Texas citizens, convict and incarcerate them in Texas, and the Governor will refuse to let them go. Imagine the uproar.
We already know that this Court will uphold any and every state law that allows states to “rig” their elections. Eventually—probably sooner, rather than later—some obnoxiously un-democratic law in a swing state will decide a Presidential election, and all hell will break loose.
The rulings handed down this term concerning abortion, school prayer, the reach of Federal regulators, the further expansion of gun rights (just days after the enactment of some modest, widely supported gun restrictions), and the use of public funds to pay for religious education are only the beginning of the broad rollback of 100+ years of American jurisprudential evolution that the six ultra-conservative Justices are hell-bent on completing.
Together with their Congressional enablers, Justices Thomas, Alito, Gorsuch, Kavanaugh, Coney Barrett and Roberts will forever be remembered for having cracked the foundation of the Rule of Law and ushered in the (New) Era of American Lawlessness.
Five years from now, when “Laws Were Made to be Broken” will have become the mantra of the American people, you will know who to thank.
Oh, and if you prefer airplanes that have had regular maintenance, ribeye that is free of Mad Cow Disease, and water uncontaminated by mercury and E. coli—fuggetaboutit!!! To make those assurances, we’d have to infringe corporate “liberty.” And that is something we simply cannot allow in the Land of the Free.
From here on out, it’s every patriot for herself.
End Notes
The Framers would have characterized the Electoral College as republican, rather than oligarchic—simply an additional layer of intermediate representation in a representative democracy. That view, it would seem, requires inordinate faith in the integrity of the state legislators who elect the Electors. Perhaps their scheme does bear a passing resemblance to the manner in which some modern European parliaments elect their heads of government, although under the US Constitution, Electors must be private citizens who do not hold any public office. ↑
“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…”(Constitution of the United States of America, Article II, Section 1) ↑
Today, as a way of rewarding key operatives who help candidates win state elections, the winning political party in each state appoints “Electors” to formally cast the electoral votes it has won—an entirely honorary and symbolic role. ↑
…although still mathematically possible under certain very specific, and very improbable, circumstances. ↑
In 1790, there were 19,698 people living in Delaware for each electoral vote allocated to the state, vs. 35,600 residents of Virginia for each of its electoral votes. ↑
In 1790, the quartile gap was 8.3 senators to 3.0 senators (out of 30 senators in total). ↑
The Cloture Rule has the effect of raising the number of Senators needed to pass most legislation from a simple majority (51) to 60. Without the consent of 60 senators, most matters can be filibustered and never even brought up for a vote. ↑
Some will react to the title of this essay by asking, “When was the United States ever not lawless?” Their point is well-taken. There is no doubt that, in many respects, our courts and systems of justice are exemplary. In countless cases, they yield outcomes that are fair, even-handed, and just. And, in far too many cases, the legal process yields outcomes that are extremely unjust. It’s both/and, not either/or. Therefore, with gratitude for the lawfulness and justice that does exist in our system, it is fair to ask: When ever has there not been selective prosecution? When ever have “white” people (in aggregate) and people of color (in aggregate) not had entirely different experiences with law enforcement and the criminal justice system? When ever have our civil courts not been a sanctioned forum for the expression of our most primal instincts to inflict maximum pain on our perceived “enemies”—even when we know that our revenge is far more severe than and totally out of proportion to the injury we have suffered? When ever has our legal system not been tainted by corruption? When ever has there been equal justice under law? The parentheses around the word “New” are intended as an acknowledgment of those realities. And yet, what is unfolding now is “next-level” lawlessness. ↑