Yesterday we began our consideration of the rewrite of the United States Constitution. For those wanting a refresher on our work so far, Click Here.
Article II, as it now stands, addresses itself to the Executive Branch of government. That means the Presidency. And therein lies all kinds of problems.
Section 1 describes the election process of the President. 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.
Right away we notice that the people of the United States are not directly electing the President. Rather, it is being handled by some mysterious thing called an Elector. To find out how many electors there are, we add the number of Representatives for a given state to the two Senators. So, for instance, the state of Arizona has nine members of the House of Representatives--a number that is supposed to be based upon the proportionate number of citizens in that state--plus two U.S. Senators, for a total of eleven electors. However, as we have just seen, the Senators and Representatives themselves are not allowed to serve as electors. The state of Alaska has a grand total of three electors, whereas California, a geographically smaller state, has fifty-five.
One question that probably has already crossed your mind is that of the vote count. No matter which presidential candidate wins the most votes in a given state, even if that majority is only one vote, that candidate receives all of that state's electoral college votes. This means that in order for the people of the United States to have actual power over the decision-making process, the electoral count must be uniform and precise, which it is not. To again look at Arizona and California, since the last presidential election, Arizona's state population increased by 1,200,000 people, or twenty-four percent. During the 2008 election, Arizona had ten electors. In now has eleven. Contrast this with California. In 2008, that state had a population of 34,000,000. Today its population is 37,000,000, an increase of more than twice what occurred during the same time period in Arizona, although admittedly, an increase which was a smaller percent of the state's growth, in this case that growth coming in at ten percent. One might expect that a ten percent increase in population between election cycles might warrant some form of representation of those three million people, but it does not. California remains at fifty-five electors.
And one cannot make a successful argument that X number of legislators can just as easily represent 34 million as they can 37 million, because if one accepts that logic, then we would only need one representative per state since, the argument goes, the number of people being represented is irrelevant.
The point here is that this entire electoral college approach to electing one third of the government of the United States--the other two being Congress and the Supreme Court, the latter of which are appointed by the executive branch--is inherently undemocratic and always has been. Yet notice the smugness of the puerile newscasters on election night, as someone brings up the subject of the electoral college. We'll see some supposed scholar come out and explain things with a sneer and tone that implies that, imperfect as we are, it's still a great country, so let's just reduce ourselves to an intellectualizing of the process and never get around to fixing the problem, har dee har har.
Note the almost biblical tone of item three of Section 1 of Article II. The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List 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 shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately choose by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner choose 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. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.
You will be forgiven if you are confused. Let us parse this a bit. The next presidential election happens on November 6, 2012. The people in each state vote for the electors. Let us assume there are only two parties on the ballot, the Democrat and the Republican. Let us further assume that the Democrat receives a majority of the votes. The votes are delivered to the President of the Senate, which also happens to be the Vice President, who most likely is a member of one of the two major parties. The person with the most votes wins all the electors for that state, unless there happens to be a tie that results in two parties having a majority over any of the third or fourth parties, something that is highly unlikely, yet theoretically possible. All the electoral votes are counted and the person with the most of these wins. In the case of a tie, the House of Representatives votes on which of the two people shall become President, rather than, say, having a run-off election, something that happens in many other countries.
One of the many problems with this approach is that states themselves have too much control over what happens to the country as a whole. For instance, in 2012, the Secretary of State of Arizona is the person responsible for ensuring a fair and clean election in that state. This man just happens to be the head of the Mitt Romney campaign in the state. If you think this is a conflict of interest, you are correct. If you think this is inherently anti-democratic and should be forbidden in the spirit of justice, you should run for public office. You will win.
As the Constitution is written, the person coming in second gets to be Vice-President, even if he or she is a member of a different political party. The Twelfth Amendment made this impossible, but until that time, it actually happened with some regularity, as when Thomas Jefferson, a Democrat-Republican, was Vice-President, and John Addams, a Federalist, was President.
Assuming just for fun that we will get back to the electoral college nonsense in a bit, for the moment let us move onto the powers of the presidency. Section 2 of Article II reads as follows.
1. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
3: The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
In Article I, the founders vested the power to declare war with the Congress. In Article II, they give the Commander in Chief title to the President. This is not all that contradictory. The Congress decides if and when there is to be a war. Once that has been determined, the decision-making process as to how the war is waged falls to the President. This would include the decision to terminate hostilities.
The other interesting part of this--and one advanced by the second Bush administration--is the notion of the recess appointment. If you want to have someone become the head of the CIA and yet you cannot get Congress to approve that person, simply wait until Congress is out of session and then make the appointment. Let's parse this a bit. The President, who is only indirectly elected, can wait until the people who are directly elected are on vacation and appoint someone he or she likes without the approval of the people who were directly elected.
Section 4, the final discussion of the executive officer, addresses itself to one of the founders' favorite concerns, that of impeachment. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
So far in the United States there have been three Presidential impeachment proceedings--in 1868 against President Andrew Johnson for his removal of Secretary of War Edwin Stanton in violation of the Tenure of Office Act; in 1974 against President Richard Richard Nixon for the Watergate cover-up; in 1998-99 against President Bill Clinton for concealing an extramarital affair. The one against Clinton was probably the surest sign that our government was insanely susceptible to the hypocritical rantings of a perverse media all too happy to overthrow its own government in the name of ratings, ratings which ironically were not forthcoming. The majority of Americans saw the impeachment proceedings as the nonsense they were and Clinton was not removed from office.
The mere fact that the process of impeachment gets misused--and one could make a similar argument about the Johnson Impeachment being politically motivated, although in the case of Nixon even members of his own party admitted that he was a scoundrel--does not mean it is a bad idea. On the other hand, again, there is something inherently undemocratic about the process, just as there is something inherently anti-democratic about recall elections. The real issue is whether democracy or justice should prevail. And they are not necessarily the same thing. The majority of the people in the Southern United States thought slavery was just fine one hundred fifty years ago. That was democracy. Justice mandated that slavery be abolished. So, impeachment, however undemocratic it may be, in the sense that it represents the overturning of an already marginally democratic process, does leave open the opportunity for the government to correct itself. Unfortunately, it also leaves open the opportunity for a colossal abuse of power on the part of the Legislative branch of government, as often happens whenever the President is a member of one party and a majority of the House and Senate are of another party. Ideally, this method of checks and balances can be a good thing in that the two major parties are often so busy being at one another's throats that they are too preoccupied to get anything disastrous accomplished. Unfortunately, doing the wrong thing is often one of the few areas of agreement between the two major parties. Someone wants a war against a country with no ability to resist us? That will go through like poop out a duck's ass. But just try to get a raise in the federal minimum wage, just try to get funding for grandma's breast exam, and just try to get a bridge rebuilt in your neighborhood. All sorts of reasons for why this cannot happen anytime soon will materialize, most of the delays being blamed on the two-party system. Ironic? Maybe. Deliberate? You betcha.
Tomorrow we will get our laughs at the expense of Article III, the Judiciary. The next day we will laugh to scorn Articles IV, V, VI and VII. The following day we will amuse ourselves with the Bill of Rights--those things that everyone endorses and no one can recall--and then we will move on (dot org) to the remaining amendments. We will at long last conclude with a revised document which, I'm sure, will amuse some, outrage many, and be ignored by the overwhelming majority.