Can the Constitution be Unconstitutional?

No.

True, there are places where the Constitution does not live up to our moral ideals (slavery), or ideals about how a nation's government should be structured (slavery, the disproportionate representation afforded by the Senate), or our egalitarian and utilitarian principles (slavery, the electoral college), but it is still the Constitution.

More importantly, the force that shaped Constitution 200 years ago is exactly the force that keeps the electoral college going today: the limits of the possible. Without disproportionate representation, the small states don't join, there is no United States, and there is no Constitution.

(Similar analogy: unions would be better if there wasn't such an emphasis on seniority rights, but without seniority rights, the older workers wouldn't have joined, and there would be no union.)

While it is absurd, and (kind of) a violation of the one-person, one-vote standard we apply to states, the electoral college was a necessary precondition to the Constitution and the form of government we have today. It's tempting to write it off as a historical anomaly ("Oh, it was 1787, it was the first time anyone had done this, they were all drunk ..."), but if the union was forming today, the small states would still want some sort of assurance that their voices would be heard in our democracy.

I'm not excusing the ridiculousness of the system and its 5% error rate. I'm just saying that every time you curse the electoral college for giving us George W. Bush, you should thank it for giving us the First Amendment, too.

- A

Why Do We Make Elections So Complicated?

Dearest A,

My random thought for a Wednesday morning: Does the electoral college violate the one person-one vote principle laid out in Reynolds v. Sims?

Admittedly, I haven't read that case since Con Law I, and I took Election Law pass-fail. So I'm no expert. But here's what I'm thinking ...

The number of each state's electors equals the number of seats it has in the House of Representatives plus two (representing two Senators). We here in the District have three electors, equivalent to the number allotted to the smallest states, even though we ain't got no Senators, and no real congressmen (but that's another post for another day).

Since legislative districts are supposed to be allotted according to the one person-one vote principle, the number of electors equivalent to congressmen should be OK. It's the fact that we're using Senators -- which are distributed, Ark-like, by twos -- that makes me think we might be violating the principle. Doesn't this dampen the impact of the most populous states? Doesn't it give less-populous states more power?

There's also the problem of block-voting by state. The people in New York who vote Republican and the people in Texas who vote Democrat essentially aren't getting any votes when it counts. So we end up with this bizarre phenomenon of candidates winning the popular vote, but losing the election.

My final thought for the day: Can a practice mandated by the Constitution be UNCONSTITUTIONAL?

There. I just blew my own mind.

Love,
Sammy

Defense Wins Championships

While it's true that a Democratic president would likely be maintaining the status quo with regard to the Supreme Court personnel, it's also true that appointing justices is not the only way a new president could impact the Court.

First, a Democratic-controlled legislature and a Democratic executive could work to right the wrongs of the Supreme Court -- e.g., the "Ledbetter" Fair Pay Act -- and reverse some of the Court's more egregious decisions.

Second, a Democratic president could act unilaterally to end the constitutional violations that the Supreme Court refused to fix, such as overturning executive orders and closing Guantanamo.

Third, a Democratic executive would have a lot of power to change to policies of the administrative state, which would have the effect of removing many thorny issues from the Supreme Court's review -- for example, the legal challenge over the EPA refusing to allow California to regulate emissions would simply become moot with a change in EPA policy.

Sure, sure, it would be playing defense. But what's so bad about defense?

- A

Let's Not Get Our Hopes Up ...

Dearest A,

Barack Obama has finally secured the nomination, Hillary Clinton's refusal to concede notwithstanding.

What does this mean for us lawyer-types? Two words: Supreme Court.

Those of us who do not belong to the Federalist Society are quite worried about our beloved Court. The decisions of the last terms were, on the whole, stunning. The backtracking on school desegregation in Seattle/Louisville. The imposition of unreasonable deadlines on people completely unaware that their employer is discriminating against them in Ledbetter. And, perhaps most disappointing of all, Justice Kennedy's patronizing depiction of the women who choose to have abortions in Gonzales.

Here's the funny thing: the best we can hope for is to keep the status quo. Barring some disaster befalling a younger, conservative member of the Court, the only seats likely to open up in the new term are those held by the "liberal" Justices Stevens, Ginsburg, and maybe Souter. We need a President Obama to keep from turning a conservative Court even more to the right. But we can't expect a shift back to the center anytime soon.

Love,
Sammy