III: Why the Electoral College

One important, unusual, and often challenged pillar of our republic is the system of presidential electors, commonly called the Electoral College. Today, too large a body of our population is unaware how its government is supposed to function. An example is the Electoral System. The “electoral college” is simply a key function of a republic and not a national centralized government with full democratic elections. This is because the union of states created a federal, but not national, government with a republican form of governance wherein they reserved the choice of chief executive to the populace on a state by state basis.

In this form, the voters of each state select their presidential electors. The power of the states was and is maintained where each state has say to the extent that its population affords them the equivalent number of electors to the total of congressman and senators from that state. These electors on behalf of the voters of the individual states cast their ballots for president. This is one way the republic works to prevent the smaller states from being overrun by the larger states. It manages the situation where multiple candidates are running and no majority of the popular vote is achieved for any one candidate. It also insures representation equality to each member state, on a sovereign state level, for the selection of the president.

What would happen if we elected the president based solely on the national popular vote? Many progressives are pushing for this change and want to eliminate the Electoral College. Incredulously, at either the behest of or consent of their constituents, some progressive ideology controlled state legislatures have been contemplating or passed legislation to require the electors of the electoral college from their state to vote for the President of the United States solely based on the national popular vote, thus negating a key purpose of the electoral college.

If a state voted 60% for candidate “A”, but the national popular vote was 51% for candidate “B”, then the electors would be bound to ignore their state’s voters and vote for candidate “B”. This is just another attempt to place states and the people of these states into a second tier status with the federal government and to further destroy the Constitution’s delicate vertical balance between the central government and the states.

For more detail on the “Electoral College” visit the U.S. National Archives and Records Administration website –

http://www.archives.gov/federal-register/electoral-college/faq.html.

Remember, we were founded as a federal republic and not a national government. This was done to insure a union of or confederation of states, rather than to make a national government. We have local representatives in Congress, we had our state governments represented in the Senate until we frittered that away with the seventeenth amendment (more on this later), we combine our representation in Congress with the authority of individual states to amend our Constitution, and we as states, not a national government, elect a president. Our states’ electors are supposed to elect a president under the guidance of the will of the citizens of their respective states, and not the will of citizens of other states. Our states, no matter how small, have a say. In The Federalist, popularly known as “The Federalist Papers” – in Federalist 39, James Madison, the principal architect of our Constitution, wrote

“…if the government be national with regard to the operation of its powers, it changes its aspect again when we contemplate it in relation to the extent of its powers. The idea of a national government involves in it not only an authority over individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government.”

In a federal republic an electoral college serves a real purpose. Here is a case where those who wish to disband the college having insufficient knowledge of how their government was established and why it was established the way it was. Or they are progressives who wish to utilize the large progressive populations in a few east and west coast states to govern as progressives do – we become subjects and they believe they are the elite learned few who know better allowing little or no individual freedom.

Civics is an outdated subject in our schools because progressive have infiltrated our entire education process, thus our citizenry has been persuaded to give up a key tenet of our republic found in our Constitution, presidential Electors. This is one more instance where we simply want to abandon another tenet of the finest free market and individual liberty governance in the history of mankind.

The use of the presidential Elector system has resulted in a candidate getting either the majority of votes or the plurality of votes and not becoming president. This is not bad. By requiring the presidential winner to gain the affirmation of the Electors, we preserve the role of the states and the people of the individual states in this federal republic. From time to time key states formerly safe for one party switch due to economic or cultural changes.

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VI: Necessary and Proper

The last paragraph of Article I, Section 8 supports the position that the federal government’s authority ends at the limit of the enumerated powers, and any other specifically authorized power expressed in the Constitution.  The words necessary and proper are also found in the list of enumerated powers again in Article I, Section 8.  They are in the eighteenth power or clause. These too have been misinterpreted and looked to by those who feel that the federal government can be whatever it chooses to be, and as big as it wants to be.  The eighteenth clause has been called the elastic clause, because it has been stretched to meet just about any direction the federal government moves.

Well, anyone bringing the “Necessary and Proper” clause to a neighborhood near you should also bring along some additional words – FOREGOING POWERS. We looked at foregoing powers in the “Myths of the ‘General Welfare’ Clause”.  Progressives and big central government types have tried to use this “Necessary and Proper” clause over time to eliminate the states’ status in this Republic by conveniently quoting only a portion of the clause in support of their initiatives.

We should call this “foregoing powers” phrase the Rodney Dangerfield phrase, because it just does not get any respect.

Alexander Hamilton, a strong proponent of a powerful and vast federal government, was not only a Federalist, but also the founder of the Federalist Party (the big government party). Mr. Hamilton wrote heavily on the “necessary and proper” clause in The Federalist Papers. His defense of the insertion of the clause into the enumerated powers was based on protection of the federal government from the states trying to erode the federal government’s power.  Yet his defense points to the specific powers found in Section 1, and not a broad ability to pass any law it pleases. In Federalist 31 he writes:

“And it is expressly to execute these powers that the sweeping clause, as it has been affectionately called, authorizes the national legislature to pass all necessary and proper laws. If there be anything exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated.”

James Madison also wrote extensively in The Federalist Papers on the reasons why necessary and proper were inserted.  His point was that to enable the federal government to meet its obligation of providing for the enumerated powers, laws would have to be passed. This is similar to what Hamilton was saying. The federal government had to pass laws that were necessary and proper to deliver on the enumerated powers – the foregoing powers. Nowhere can founder’s support be found stating the that necessary and proper laws meant that the federal government could pass whatever it wishes; that it could depart from its limited charge of delivering on the enumerated powers.

VIII: Commerce Clause Abused to grow the Federal Government

Federalist 42 found in “The Federalist Papers” is an essay written by James Madison, the principal architect of the Constitution and its “Commerce Clause”, wherein he defines the intent and purpose of the clause. Despite a clear and exacting definition of the clause from Mr. Madison, progressive jurists have provided a wholly different meaning – a meaning that unconstitutionally radically empowers the central government. This new, clearly erroneous, definition has allowed for the usurping of the delicate vertical balance between the states and the federal government, now making the states subordinate. Didn’t the states create the federal government to make the union of states stronger? Didn’t they make every effort to make the union of states stronger, not a strong federal government? They would not have created the federal government if they wanted to be subservient, and almost irrelevant, as they are today. How and why did we let this happen?

The Supreme Court of the United States has done, over time, a grave injustice to the framers and the citizens of this country; and to that delicate balance by misrepresenting, either intentionally or unintentionally, just what the “Commerce Clause” means. The founders and especially James Madison were abundantly clear on what it meant and why the “Commerce Clause” existed as one of the eighteen enumerated powers granted to the federal government. Writings of James Madison actually define the Commerce Clause, thus there can be and should be no confusion on what the Commerce Clause means.

Under the predecessor to the Constitution, the Articles of Confederation, states were charging heavy import and export duties on sister states for goods transported from and through respective states. This was causing enormous disunity between poor and rich states; indebted and un-indebted states. Unregulated commerce was threatening to break apart this fragile new union of States and the founders knew this.

When “To regulate Commerce with foreign Nations and among the several States, and with the Indian tribes;” was written into the Constitution, the clear intent and reason for it was to simply insure that one state took no advantage over another state in transportation of goods and to insure a common treatment of foreign Nations and Indian Tribes.

James Madison talks to the classes of the enumerated powers – commerce between states being in the third class. (The Federalist Papers – Federalist 42). In 42 we find:

“The powers included in the third class are those which provide for the harmony and proper intercourse among the states.”

“…I (Madison) shall confine myself to a cursory review of the remaining powers comprehended under this third description, to wit: to regulate commerce among the several States…
A very material object of this power was the relief of the States which import and export through other States from the improper contribution levied on them by the latter.
…The restraint on the power of the States over imports and exports is enforced by all the arguments which prove the necessity of submitting the regulation of trade to the federal councils. It is needless, therefore, to remark further on this head, than that the manner in which the restraint is qualified seems well calculated at once to secure to the States a reasonable discretion in providing for the conveniency of their imports and exports, and to the United States a reasonable check against the abuse of this discretion…”

The enumerated “Commerce Clause” as it pertains to States was simply intended to insure that no one state took advantage of another. This Clause had nothing to do with the federal government deciding that it could derive almost unlimited and unchecked power from an incredulous series of “out of nowhere” interpretations of the “Commerce Clause” by prior members of Supreme Court. The founders and the states did not intend the federal government to control all goods and services in this country – why would they?

Further, it was abundantly clear about the intention of the states and the people to give the federal government as little power as possible to meet the needs of the union. The Supreme Court in prior decisions has, without due process (the amendment process), radically and unconstitutionally changed the fabric of that delicate balance between enough central governance to keep the union strong and the necessary autonomy and desire of the states to manage their own affairs – as was agreed to in the original compact, and it has put the citizens and the future of this nation at risk in the process. To put it simply: the Court has allowed and assisted the federal government to be in breach of contract with the union of states far too long.

Prior Justices who gave unusual, broad reaching, and extended power to the federal government by ignoring the clear and well defined meaning of the “Commerce Clause” again changed the highest law in the land – the Constitution – without use of the amendment process. They committed the ultimate wrong of a jurist – they made law, by altering the highest law in the land, the Constitution.

IX: “Judicial Review” Makes Supreme Court More Supreme

In 1803, Chief Justice of the Supreme Court John Marshall, a staunch Federalist favoring a strong central (federal) government, wrote the majority, five to nothing, decision opinion in the case of Marbury v. Madison. The nature of the case was not as important as Chief Justice Marshall’s previous position as Secretary of State under President John Adams. Both were Federalists. After losing the election of 1800 to Thomas Jefferson, Adams nominated Marshall to the Supreme Court as Chief Justice on January 20, 1801 – two months before his term expired; subsequently he received the consent of the Federalist controlled Senate and was sworn in.

After being sworn in as President, Jefferson appointed James Madison (Marbury v. Madison) as Secretary of State. Again, the case itself is of little importance except that it allowed Marshall to include in the majority opinion, “Judicial Review”. This was the opinion that even though the Constitution did not provide specifically for the Supreme Court to declare an act of Congress or actions of the Executive Branch unconstitutional, that if a law or action was contrary to or not empowered by the Constitution, it could be declared unconstitutional.

Neither the Executive Branch nor the Congress did anything about this power grab, which effectively made the judiciary superior to the other branches, because it now had the last word. What exacerbated this decision was that it extended to the States. Acts of state legislatures could also be struck down as being unconstitutional, making the Supreme Court and inferior courts, a branch of the federal government, superior to the States, individually or as a union. Some would say that this was not a power grab, but it did elevate the Supreme Court as superior to the other two branches and the states under the theory of checks and balances.

If we accommodate a Supreme Court of five jurists at that time, and now nine jurists from 1869, making decisions of constitutionality, at least we have a panel of jurists with varying opinions voting. What is unconscionable is that judges of inferior courts, individuals, now routinely declare acts of entire legislatures and constitutional referendums, whether it be from the States or Congress and even of the citizens of States, as unconstitutional – one person can do this?

Just a few years or so ago a federal judge declared that the military must eliminate its “Don’t Ask Don’t Tell” policy and thus was attempting to force the military to change to an openly gay policy.  Whether you like the policy or not, should one unelected jurist be allowed to possibly have a detrimental effect or any effect at all, on our armed forces and our national defense structure? Should one jurist decide how our military is structured?

Subsequently the Department of Defense eliminated “Don’t Ask, Don’t Tell”, and has opened the armed forces up to both straights and homosexuals.  The Supreme Court refused to hear the case and the Obama Administration has complied with the lower court ruling, or as the Constitution refers to the lower courts as the inferior courts.

Back to John Marshall’s opinion: the real root importance of the Marbury v. Madison case was an attempt by Marshall, a staunch Federalist, to stick it to Thomas Jefferson, his political enemy. Yet, now we have given progressively trained, individual jurists supreme power over the States, Congress, and the Executive Branch – this incredulous situation was never intended by the founders. The separation of powers among the three branches of the federal government and the equality of the branches started to unravel as early as 1803.

Could it not be said that the states have the right to declare a federal action unconstitutional?  Can they nullify a law, regulation, order, memorandum, or judicial decision as being unconstitutional?

This decision, “Judicial Review”, made the Supreme Court unequal and superior to the other branches. No longer did a check on the authority or decisions of the Court exist. Congress and the Executive Branch were now junior partners. The Court was now able to remake our Constitution, write law, and at times enforce the law. The tearing apart of our Constitution had begun.

For more on this go to FindLaw to learn about the history of judicial review. For more on the history of Marbury v. Madison go to “John Marshall’s Judicial Mind”.

Also try “The Judicial Mind of John Marshall: Nationalism

XIV: What About Nullification – What is Nullification – Interposition

The alternative to repealing the Seventeenth Amendment is “nullification”!  Nullification, assuming nullification does not become a Constitutional Amendment, means that any state legislature can declare an act, regulation, or a law of the federal government not supported by the powers afforded the federal government, to be unconstitutional and nullified under the powers granted the states in the tenth amendment

  “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

This has been tried, but is not directly found in the Constitution. Nullification, that is not “constitutionalized”, as put forth in the previous chapter, would be a sticky event. There is precedent provided by and arguments for nullification from two founders.

The first appearance of the right to nullify occurred in 1798, and the two collaborators in the Resolution of ’98 were Thomas Jefferson and James Madison. This duo should bring gravitas to the argument. Madison wrote of the right to nullify in the Virginia Resolution of 1798, wherein his document was adopted by the Virginia General Assembly and agreed to by the Virginia Senate in that same year. These were a nullification of the Alien and Sedition Acts passed by Congress and signed into law by President John Adams.

Jefferson also very eloquently and clearly wrote of the right of a state to nullify in the Kentucky Resolution of 1798, where-in he cited Article I, Section 8’s enumerated powers and the tenth amendment. This collaboration, but mostly Jefferson resolution was adopted by the Kentucky legislature in the same year.

In time and separately, the Alien and Sedition Acts were found to be unconstitutional by the Supreme Court of the United States.

Nullification is a solution! Two very key founders were in favor of nullification. James Madison was a principal architect of the Constitution and the Bill of Rights. He knew and understood better than any human on the planet, the intended relationship between a state, the states, and the federal government?  Yes, Madison did late in life indicate that he did not intend for nullification, but his reasoning and words of the Resolution of ‘98 and Jefferson’s nullification argument can be used to prove that something nullification-like does fall to the states.

Nullification was also authored during the War of 1812 and with the Embargo of 1807 through 1809.  Oddly enough, Jefferson was President for the Embargo; the federal government enacted an embargo of shipping, prohibiting all American ships from leaving American ports bound for any foreign port. This was to combat acts from Britain and France against America’s neutral rights on the seas. These are not the only examples of nullification in the history between the states and the federal government.  The term better suited to getting nullification as an amendment is Interposition, utilized by Mr. Jefferson.

Read Thomas Jefferson’s reasoning at: http://jeffersonpapers.princeton.edu/selected-documents/kentucky-resolutions-1798