Republicans Damage the Constitution In Order To Save It

My father once told me that the difference between the two parties is simple: the Democrats are stupid whereas the Republicans are just plain dumb. That bit of wisdom has held up well, though not always in the same proportion at the same time.

Today the Republicans did something smart and promptly turned it into something really dumb. Reading the Constitution was the smart thing. The founding document possesses enormous authority and reverence toward it is altogether proper.

The dumb thing was to read an "amended version". The text they read, I gather, removed all the language that has been superseded by amendments. There is a lot of language in the Constitution that isn't in the Constitution anymore, in a legal sense. For example, the original text states that senators are chosen by the state legislatures, but that was changed by the Seventeenth Amendment to election by the people of each state. I gather that the original language of the text was changed to reflect later amendments. I can't seem to find a complete audio version to check.

This was politically dumb because you surely undermine your case for fidelity to the original document by producing a new, edited document that no ratifying body ever saw. It was dumb also because it invited folks like Dahlia Lithwick at Slate to accuse the Republicans of "whitewashing the Constitution" by leaving out the passages about slavery. It was dumb because it looks dumb.

It was also dumb because the very passages that we are now justly ashamed of reveal both the corruption of the American idea by slavery and also the genuine greatness of what that peculiar institution corrupted. Here is one of the passages, I gather, that was not read in full.

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

In reading the document aloud, they skipped over that last clause. One can understand why. Those "other persons" were slaves. The presence of slavery in a Republic based on the principles of the Declaration of Independence exposes the founders as hypocrites.

But you can't be a hypocrite without acknowledging, if only by pretense, that you know what is right and what is wrong. The language above is laboriously constructed for the precise purpose of omitting the words slavery and slaves. The founders recognized that those words would stain the document, and so they are absent from the several provisions that recognize the institution.

Moreover, the Three Fifths Compromise expresses a logical division already present in the Republic. If those "other persons" aren't really people, with rights and dignity, then it makes no sense to count them for purposes of representation in the House. If they are really people, then they ought not only to be counted; they ought to be freed and given the vote.

If we hadn't really believed what we wrote in the Declaration, the Civil War would not have been possible. If we hadn't practiced slavery, in blatant contradiction to what we wrote, the war would never have been necessary. Skipping over the Three Fifths Clause throws the baby out with the very foul bathwater.

It's a bad sign that the Republicans had no one around to point this out. I'm available, if they are reading. This was not an auspicious start.

Comments

[William]

KB,

From what I've read, the Constitution was read as it's been amended, but literally in that respect. No penumbras, but no three-fifths clause, as that was nullified by the 13th Amendment, which banned slavery. In other words, as the Constitution should be read in it's current state. This reading of the Constitution IS the foundation of our nation and the "law of the land".

My understanding is the Constitution as it HAS BEEN PROPERLY AMENDED was the version that was read.

Our Founders provided us with the means to change the original Constitution, as written, through the amendment process and that IS the Constitution of today.

Examples of passages "left out":

Return of escaped slaves. A section of Article 4 previously required that escaped "persons held to service or labour" should not be freed, but returned to servitude. This provision was nullified by the 13th Amendment, which ended slavery.

Direct election of senators. The Constitution originally provided for senators to be elected by state legislatures, not directly by voters. That was changed by the 17th Amendment, ratified in 1913.

Changes to presidential elections. A portion of Article 2, Section 1 - governing the Electoral College - was superseded by the 12th Amendment.

[Jimi]

Nah.....It was the first day of the session! This will be forgotten about next week.

It doesn't matter what version they read, they would have been curcified and made fun of either way......besides that is not what it was about....it was symbol.

[duggersd]

My understanding of the reason for the reading of the Constitution is to call attention to the Congress of what it is they are there to do. The Constitution as it was first written has been changed over the years. This is the document that is in force today. I believe the House is going to require legislators cite the section of the Constitution that allows for a new law. So why read a part that is no longer in effect? If someone submits a law and cites a part that is no longer active, then that law cannot be passed based upon the new rule.

[toto]

RE: The unread portions of the 12th Amendement

The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and DC). There would never be a need for the House to choose a President.

The bill preserves the Electoral College, while assuring that every vote is equal and that every voter will matter in every state in every presidential election.

The bill would take effect only when enacted, in identical form, by states possessing a majority of the electoral votes--that is, enough electoral votes to elect a President (270 of 538). When the bill comes into effect, all the electoral votes from those states would be awarded to the presidential candidate who receives the most popular votes in all 50 states (and DC).

The Electoral College that we have today was not designed, anticipated, or favored by the Founding Fathers but, instead, is the product of decades of evolutionary change precipitated by the emergence of political parties and enactment by 48 states of winner-take-all laws, not mentioned, much less endorsed, in the Constitution.

The bill uses the power given to each state by the Founding Fathers in the Constitution to change how they award their electoral votes for president. Historically, virtually all of the major changes in the method of electing the President, including ending the requirement that only men who owned substantial property could vote and 48 current state-by-state winner-take-all laws, have come about by state legislative action.

In Gallup polls since 1944, only about 20% of the public has supported the current system of awarding all of a state's electoral votes to the presidenti­al candidate who receives the most votes in each separate state. Support for a national popular vote is strong in virtually every state, partisan, and demographi­c group surveyed in recent polls.

The bill has passed 31 state legislativ­e chambers, in 21 states, including AR, CT, DE, DC, ME, MI, NV, NM, NY, NC,OR, CA, CO, HI, IL, NJ, MD, MA ,RI, VT, and WA . The bill has been enacted by DC, HI, IL, NJ, MD, MA, and WA. These 7 states possess 74 electoral votes -- 27% of the 270 necessary to bring the law into effect.

http://www.NationalPo­pularVote.­com

[Donald Pay]

I agree with KB. Rather than reading the Constitution, it would be far more instructive for these people to take a bit more time and learn how the Constitution was negotiated, both during and after it was ratified. If you look at the Necessary and Proper Clause and follow just Madison's three or four changes of position on this clause over time, you start to understand that there never was anything like original intent. Madison switched position on the Necessary and Proper Clause from supporting a broad interpretation to a more narrow position during the convention because of the Great Compromise (he lost). Washington didn't switch position. Madison would later switch again, and then return to his second position.

We shouldn't run away from the fact that much of the Constitution was written to prevent a powerful federal government and popular will from ending slavery as an institution. When the Republicans whitewash the Constitution, they miss the heroic efforts, including those made by the formation of the Republican Party, to make the government live up to its principles.

[Jimi]

Toto,

I think a strict "National Popular Vote" for the leadership position leads to mob rule. Crony Capitalism would go off the charts, and dictatorship would be around the corner. People would only campaign in the large cities, and it would be much easier to rig the election.

The political culture of the major cities would reign over the entire country, this process leads to the minority controlling the majority, and ends the same way as we have seen throughout the history of the world.

[toto]

The National Popular Vote bill would end the disproportionate attention and influence of the "mob" in a handful of closely divided battleground states, such as Florida, while the "mobs" of the vast majority of states are ignored. 98% of the 2008 campaign events involving a presidential or vice-presidential candidate occurred in just 15 closely divided "battleground" states. Over half (57%) of the events were in just four states (Ohio, Florida, Pennsylvania and Virginia). Similarly, 98% of ad spending took place in these 15 "battleground" states.

The current system does not provide some kind of check on the "mobs." There have been 22,000 electoral votes cast since presidential elections became competitive (in 1796), and only 10 have been cast for someone other than the candidate nominated by the elector's own political party. The electors are dedicated party activists of the winning party who meet briefly in mid-December to cast their totally predictable votes in accordance with their pre-announced pledges.

[toto]

The population of the top five cities (New York, Los Angeles, Chicago, Houston and Philadelphia) is only 6% of the population of the United States and the population of the top 50 cities (going as obscurely far down as Arlington, TX) is only 19% of the population of the United States.

When presidential candidates campaign to win the electoral votes of closely divided battleground states, such as in Ohio and Florida, under the state-by-state winner-take-all methods, the big cities in those battleground states do not receive all the attention, much less control the outcome. Cleveland and Miami certainly did not receive all the attention or control the outcome in Ohio and Florida in 2000 and 2004.

Keep in mind that the main media at the moment, namely TV, costs much more per impression in big cities than in smaller towns and rural area. So, if you just looked at TV, candidates get more bang for the buck in smaller towns and rural areas.

For example, in California state-wide elections, candidates for governor or U.S. Senate don't campaign just in Los Angeles and San Francisco, and those places don't control the outcome (otherwise California wouldn't have recently had Republican governors Reagan, Dukemejian, Wilson, and Schwarzenegger). A vote in rural Alpine county is just an important as a vote in Los Angeles.

Likewise, under a national popular vote, every vote everywhere will be equally important politically. There will be nothing special about a vote cast in a big city or big state. When every vote is equal, candidates of both parties will seek out voters in small, medium, and large towns throughout the states in order to win. A vote cast in a big city or state will be equal to a vote cast in a small state, town, or rural area.

If the National Popular Vote bill were to become law, it would not change the need for candidates to build a winning coalition across demographics. Any candidate who yielded, for example, the 21% of Americans who live in rural areas in favor of a "big city" approach would not likely win the national popular vote. Candidates would still have to appeal to a broad range of demographics, and perhaps even more so, because the election wouldn't be capable of coming down to just one demographic, such as voters in Ohio.

Further evidence of the way a nationwide presidential campaign would be run comes from the way that national advertisers conduct nationwide sales campaigns. National advertisers seek out customers in small, medium, and large towns of every small, medium, and large state. National advertisers do not advertise only in big cities. Instead, they go after every single possible customer, regardless of where the customer is located. National advertisers do not write off Indiana or Illinois merely because their competitor has an 8% lead in sales in those states. And, a national advertiser with an 8%-edge over its competitor does not stop trying to make additional sales in Indiana or Illinois merely because they are in the lead.

[toto]

A survey of 800 South Dakota voters conducted on May19–20, 2009 showed 75% overall support for the idea that the President of the United States should be the candidate who receives the most popular votes in all 50 states. Voters were asked:

"How do you think we should elect the President: Should it be the candidate who gets the most votes in all 50 states, or the current Electoral College system?"

Then, voters asked a second question that emphasized that South Dakota’s electoral votes would be awarded to the winner of the national popular vote in all 50 states, not South Dakota, vote. In this second question, 67% of South Dakota voters favored a national popular vote.

"Do you think it more important that a state's electoral votes be cast for the presidential candidate who receives the most popular votes in that state, or is it more important to guarantee that the candidate who receives the most popular votes in all 50 states becomes president?"

The results of the first question, by political affiliation, was 84% among Democrats, 67% among Republicans, and 75% among others. By gender, support was 83% among women and 67% among men. By age, support was 73% among 18-29 year olds, 68% among 30-45 year olds, 79% among 46-65 year olds, and 76% for those older than 65.

The results of the second question, by political affiliation, was 78% among Democrats, 58% among Republicans, and 65% among others. By gender, support was 76% among women and 57% among men. By age, support was 57% among 18-29 year olds, 55% among 30-45 year olds, 71% among 46-65 year olds, and 73% for those older than 65.

http://nationalpopularvote.com/pages/polls.php#SD_2009MAY

[toto]

The potential for political fraud and mischief is not uniquely associated with either the current system or a national popular vote. In fact, the current system magnifies the incentive for fraud and mischief in closely divided battleground states because all of a state's electoral votes are awarded to the candidate who receives a bare plurality of the votes in each state.

Under the current system, the national outcome can be affected by mischief in one of the closely divided battleground states (e.g., by overzealously or selectively purging voter rolls or by placing insufficient or defective voting equipment into the other party's precincts). The accidental use of the butterfly ballot by a Democratic election official in one county in Florida cost Gore an estimated 6,000 votes ― far more than the 537 popular votes that Gore needed to carry Florida and win the White House. However, even an accident involving 6,000 votes would have been a mere footnote if a nationwide count were used (where Gore's margin was 537,179). In the 7,645 statewide elections during the 26-year period from 1980 to 2006, the average change in the 23 statewide recounts was a mere 274 votes.

Senator Birch Bayh (D–Indiana) summed up the concerns about possible fraud in a nationwide popular election for President in a Senate speech by saying in 1979, "one of the things we can do to limit fraud is to limit the benefits to be gained by fraud. Under a direct popular vote system, one fraudulent vote wins one vote in the return. In the electoral college system, one fraudulent vote could mean 45 electoral votes, 28 electoral votes."

Hendrik Hertzberg wrote: "To steal the closest popular-vote election in American history, you’d have to steal more than a hundred thousand votes . . .To steal the closest electoral-vote election in American history, you’d have to steal around 500 votes, all in one state. . . .

For a national popular vote election to be as easy to switch as 2000, it would have to be two hundred times closer than the 1960 election—and, in popular-vote terms, forty times closer than 2000 itself.

Which, I ask you, is an easier mark for vote-stealers, the status quo or N.P.V.[National Popular Vote]? Which offers thieves a better shot at success for a smaller effort?"

[duggersd]

As I understand your description of the NPV, if South Dakota voted overwhelmingly for a Republican candidate and the national vote had a majority for the Democrat candidate, the 3 electoral votes from SD would go to the Democrat? I fail to see the advantage of this, but I would find it funny to see electoral votes from CA, NJ, NY and WA go the a Republican.

[KB]

Donald: The Constitution does protect slavery. That was a dreadful compromise, but it came out okay. The real protection for slavery, however, was the representation scheme in the U.S. Senate. Therein lies a tale. Protecting the rights of minorities and individuals will someones empower the same to do things we would not have them do. Welcome to Republican government.

[duggersd]

KB, how can you say the Constitution "DOES protect slavery"? The 13th Amendment abolished slavery and became part of the Constitution, changing it and nullifying any parts associated with slavery other than the abolishment. I can see how you say it "DID" protect slavery, but do not see how you can say it "DOES" protect slavery.

[KB]

The Constitution does protect slavery. It also abolishes it. Since the second comes after the first, slavery is history. Saying it that way is exactly how the constitution DOES say it.

[toto]

Support for a national popular vote is strong in virtually every state, partisan, and demographic group surveyed in recent polls in closely divided battleground states: Colorado-- 68%, Iowa --75%, Michigan-- 73%, Missouri-- 70%, New Hampshire-- 69%, Nevada-- 72%, New Mexico-- 76%, North Carolina-- 74%, Ohio-- 70%, Pennsylvania -- 78%, Virginia -- 74%, and Wisconsin -- 71%; in smaller states (3 to 5 electoral votes): Alaska -- 70%, DC -- 76%, Delaware --75%, Maine -- 77%, Nebraska -- 74%, New Hampshire --69%, Nevada -- 72%, New Mexico -- 76%, Rhode Island -- 74%, and Vermont -- 75%; in Southern and border states: Arkansas --80%, Kentucky -- 80%, Mississippi --77%, Missouri -- 70%, North Carolina -- 74%, and Virginia -- 74%; and in other states polled: California -- 70%, Connecticut -- 74% , Massachusetts -- 73%, Minnesota -- 75%, New York -- 79%, Washington -- 77%, and West Virginia- 81%.

Most voters don't care whether their presidential candidate wins or loses in their state . . . they care whether he/she wins the White House. Voters want to know, that even if they were on the losing side, their vote actually was counted and mattered to their candidate.

[Donald Pay]

KB: I think we agree, but I think it depends on the time frame. It may be that the representation scheme for the Senate protected slavery in the mid 1800s, but that wasn't the view of the Virginians, at least Madison, in the late 1700s to early 1800s. Also, the Virginians supported the Constitutional prohibition against import of slaves (after 1808) not because they opposed slavery, but because they wanted Virginia to supply the slaves rather than be undercut by slave traders. When you read the history of how all this stuff was negotiated, you start understand how much slavery influenced how the Constitution was written.

[KB]

Donald: Wow, we seem to be really in sync on this one. I think that, in the early period you mention (1787-say, 1820), a lot of folks thought that slavery was on the way out and almost no one wanted to face the question. That would explain the Northwest Ordinance.

You are almost certainly right that the importation clause and the resulting end to the slave trade was, in part, designed to increase the value of domestically produced slaves.

Yes, slavery had a significant influence on the drafting of the Constitution. I think that a fear of it moved the convention at a few critical moments.