Original Intent (Extended and Revised)

One of the great problems with contemporary politics is that people no longer talk with anyone who doesn’t agree with them.

And why should we?  We now have our own news networks – FOX for those who call themselves “conservative”, NBC and NPR for those who call themselves “liberal” or “progressive”.  The internet continues to spawn the electronic equivalents of grocery-store tabloids - “news” outlets which will, in essence, tell you that your worst fears and imaginings pale in comparison with the latest revelations. 

Americans have long enjoyed the freedom to express their opinions.  Now, it seems, we have acquired the freedom to select our own facts.

All of which is bad enough.  But the worst of it is, simply, that because we don’t listen to each other, we have no idea how to persuade each other – even in those rare moments when persuasion becomes possible.

A classic example of this phenomenon is developing in the contest over President Obama’s nomination of DC Circuit Chief Merrick Garland to the Supreme Court. 

Even before Judge Garland’s nomination, Senate Republicans had unanimously announced their refusal to consider any appointment made by the current President, and their determination to wait until “the people” had chosen a new President.

The justifications the Republican Senators have offered are necessarily thin, since the Constitution makes no distinction between the powers of a newly-inaugurated President and one in his last day on the job.  Manifestly, “the people” elected Barack Obama to serve as their President until January 20, 2017 – and elected this Senate to perform its constitutional functions until its successors are sworn in a few weeks earlier.

One imagines what these Senators would say if Mr. Obama decided to spend the next ten months working on his golf handicap, rather than attending to matters of state.  By the Senators’ reasoning, he would certainly be justified in doing so.

But what must truly sting is that the Senators have rather boxed themselves in.   Public opinion is running almost 2-to-1 against their position, which is a problem when their 54-vote majority is very much in jeopardy.

Fully 24 of the 34 Senate seats up for election this November are held by Republicans, and six Republican incumbents are considered particularly vulnerable.  It would not take much to produce a new Senate with a slight, but workable, Democratic majority.

If a Democrat prevails in November’s Presidential election, this could assure either the quick approval of Judge Garland, or the appointment of a more reliably liberal, and much younger, Justice by Mr. Obama's successor.

Moreover, the Republicans’ unpopular stance over the Garland nomination – which daily brings into fresh relief their seven-year-long record of legislative recalcitrance – makes it considerably more likely that the Democratic Party will hold onto the White House.

But the Senators’ problem runs deeper.  The Republican Party seems likely to nominate the mercurial Donald Trump, and there is absolutely no predicting whom a President Trump – a narcissistic populist with no discernible political philosophy – might nominate for the bench.

All in all, Republican Senators must surely, by now, have realized that they have painted themselves into a particularly sticky corner – and be wondering how they might extract themselves from it.

This seems a time when Democrats, liberals, progressives, and what-have-you might want to offer their opponents a lifeline.  Surely, at least a handful of Republican Senators would appreciate any honorable excuse to back down from their precipitous and ill-advised position. 

And a handful would be enough.

But of course, in a nation which refuses to expect serious bilingualism from its public schools and universities, it’s hardly surprising that those on the Left don’t “speak conservative”. 

Or even appreciate the difference between the handful of Republican Senators who are genuinely conservative, and those who simply use that honorable term to cloak an irrational mashup of bigotry, ignorance, superstition, greed and anti-intellectualism. 

Which is to say that the present approach of the Left gets it all wrong.  To denounce this Senate for obstructionism is merely to reiterate the obvious.  To threaten it with liberal disapproval will only stiffen the spines of reluctant Senators.

But what if the President and his supporters tried a different approach on these Senators?  What if they, in the words of a great American conservative, appealed to “the better angels of their natures”?

  

While most of today’s so-called “conservatives” are anything but, there are still Republicans – including a few Senators – who revere the shades of such conservative giants as Edmund Burke and Alexander Hamilton.

True conservatives might be persuaded by a genuinely conservative argument – such as an appeal to the established constitutional practice and clear “original intent” of the Founders of the Republic.

On the question of filling judicial vacancies, the Founders are very much on record.  While most Founders were still alive and active, President John Adams – who had been defeated for re-election by Thomas Jefferson and Aaron Burr – appointed his Secretary of State, John Marshall, to serve as Chief Justice of the Supreme Court.

Marshall was appointed on January 20, 1801 – just six weeks before Adams’ “lame duck” presidency was due to expire.  A “lame duck” Senate confirmed Marshall one week later.

Thus, the greatest and most consequential judicial appointment in American history took place at the tail end of a presidency repudiated by the American people.  Chief Justice Marshall officially assumed his duties on March 4 – the day on which Thomas Jefferson was sworn in as Adams’ successor.  Jefferson served for eight years, Marshall for 34.

During those years, Marshall powerfully established the role of the Court as the final arbiter of constitutional issues - the court of last resort when the Constitution had to be interpreted.  If not for Marshall, no one would much care whom President Obama appointed to a not-so-Supreme Court.

But the point, again, is that Marshall's appointment came far later in Adams' term than Judge Garland's.  And, since both Marshall and Adams - and many of the Senators who confirmed the appointment - were members of the generations which fought the Revolution, wrote and ratified the Constitution, and otherwise founded the Republic.

John Adams, one of the committee which wrote the Declaration of Independence, has as good a claim to the title of “Founder” as anyone in our national history.  John Marshall, served honorably on General Washington’s staff during the Revolution.  Though a generation younger than Adams, he was clearly a member of the Founding elite.

Whoever eventually takes the open seat on the Supreme Court, he or she will be occupying the place of Justice Antonin Scalia, the Court’s pre-eminent conservative and chief exponent of the doctrine of “original intent” - the doctrine that we should be guided by the Founders' understanding of the Constitution, even today.

Ironically, the Founders’ “original intent” concerning filling Supreme Court vacancies can be summarized in precisely two words - “John Marshall”.

Republican Senators are ignoring this point, but can only continue to do so if those on the Left fail to make it, publicly and repeatedly.

Those who don’t speak conservative should keep that in mind, if their intent is to persuade a few Republican Senators and gain a hearing for Judge Garland before the end of the present administration. 

It's Not Hate, It's Revolution

Ardent supporters of Hillary Clinton are apt to take umbrage at the fact that many who back Bernie Sanders have expressed themselves as unwilling to vote for Secretary Clinton, should she be the nominee.

Clinton loyalists are entitled to their opinions, but their umbrage serves neither their cause nor their candidate.  While there are, without doubt, “Hillary haters” among Sanders’ ranks, I suspect they are rare.  To be sure, a great many Sanders supporters are angry at Secretary Clinton’s increasingly desperate, reality-free attacks on her opponent.  But many of Bernie’s most passionate fans will, no doubt, eat their words and support Hillary, should she win the nomination.

Clinton’s problem lies with those of us who do not hate her – but have no intention of voting for her in November, regardless of her opponent.  There are a lot of us – perhaps millions.  Enough to make it doubtful that Clinton will prevail in a general election against any Republican.

But again, this has less to do with personal animus that it does with long-term thinking, and a determination to continue to work toward a political “revolution” against the corrupt, effete, and dysfunctional system of which Mrs. Clinton is a long-established part.

In general, I find that those who are most supportive of Hillary – and most horrified at those who vow never to support her – tend to think and behave as loyal Democrats.  Their political world-view is circumscribed by the existing two-party system and the binary, left-right "political spectrum" so popular with high-school civics teachers and political science and journalistic types.

But not everyone shares this limited view of the world.

In my case, I see the existing system – not as a two-sided battle between the good guys and the bad guys – but as a duopoly in which the two established parties alternate power, while doing little or nothing to address the realities of the 21^st century.

It is in the interest of both parties to limit political discourse to a handful of issues about which Democrats and Republicans can agree to disagree, while being safely assured of roughly half of the votes of those Americans who still bother to participate.  In its present form, the duopoly assures the Republican Party of control of the House of Representatives – through its greater ability to turn out voters for down-ballot elections and consequent control of congressional district gerrymandering. 

The duopoly assures the Democratic Party of a small, but significant, advantage in the Electoral College.  Because Senate elections tend to go to the winning party in Presidential years, and the party out-of-power in “mid-term” elections, duopolistic control of that body shifts back and forth on a pendular basis.

In order to maintain this process, which assures both major parties of a regular share of power, both Democrats and Republicans rely on the politics of fear – routinely alarming their voting “bases” at the prospect of the other party winning the next election.  In such a system, there is little reason to risk advocating – much less pressing – measures which offer real change.  Safer, by far, to focus on the dangerous things the opposition might choose to do.

Such a system, of course, is entirely meaningless to those whose interests are not part of the regular menu of “issues” served up by the duopoly.  In today’s terms, global climate change – which, in any rational republic, would be among the most pressing issues in every campaign – is seldom mentioned by any candidate other than the “revolutionary” Bernie Sanders.  Since both major parties depend upon the support of fossil-fuel and automobile manufacturers (to say nothing of road-builders and suburban developers), global climate change is given short shrift.

Climate change is but one, pressing example of issues which have no standing in the present duopoly.  When there are only two sides to the political dialogue, alternate ways of constructing political reality are simply not allowed for. There is no forum in which to suggest alternate menus of issues, or alternate ways of looking at the world.

From this perspective, an election between yet another conservative Republican and another moderately liberal, “third way”, Democrat offers no real choice at all. For those who want a meaningful revolution – one which reduces the impact of big money and opens the door to new political parties – there is little reason to prefer one party or candidate over the other.

In 2016, an election between Hillary Clinton and any of the current Republican candidates, offers no possibility of such change.  Thus, it becomes – in terms of those not locked into the two-party world-view – a dreary, but thoroughly unimportant, event.

Put another way, if your goal is to disrupt the present system, the basic goal is to disrupt the present campaign finance system, the system of gerrymandering, and – most important – the two-party duopoly.  An election which offers no possibility of disrupting the present duopoly is, simply, no big deal.   

In 2016 – owing to the campaigns of Donald Trump and Bernie Sanders – both major parties seem unusually vulnerable to disruption.  For most young voters – and a few old progressives like me – the Democrats seem the more vulnerable target.

If Bernie Sanders is the Democratic candidate – and the winner in November – there would be a window of opportunity for radically reforming the party from within.  If Hillary Clinton is the nominee, and wins, there will be no such opportunity. 

For that reason, none of Secretary Clinton’s past achievements or personal qualities outweighs the fact that she represents the continuation of a defunct political system.  I don’t hate her.  But I won’t be voting for her.

I hope many others, who are serious about change, will make the same choice.

Stopping Trump

What follows is not a desperate plea for the nation to come to its senses, nor is it a fanciful plan by which the Republican “establishment” suddenly discovers a competence and sense of purpose it has long since frittered away.

This is a plan by which a relative handful of purposeful Americans, and one genuine leader, could prevent Donald Trump from becoming President.

In offering this plan, I make certain assumptions.

First, though I am very much for Bernie Sanders, I assume that the Democratic Party’s coalition of demographic groups will succeed in making Hillary Clinton their nominee.

Second, I assume that Donald Trump will continue to ride his present wave of popularity to the Republican nomination, and that this will become mathematically inevitable within the next month or six weeks.

Third, I assume that – in this anti-establishment year – there is every prospect that Donald Trump would defeat Hillary Clinton in an election in which millions of Americans ended up voting for third-party candidates, or no one at all.

Fourth, I assume that – given something like the usual Electoral math – the electoral vote between Mrs. Clinton and Mr. Trump would be close.

An election contest between Donald Trump and Hillary Clinton has been well described as “the election nobody wants”.  In truth, a significant number of Americans do want one or the other of these two, deeply-flawed candidates.  But it’s safe to say that, whichever of them won, a significant majority of Americans would be unhappy with that winner.

Given those four assumptions, there is certainly room for a hasty, third-party or independent challenger to appear. 

The problem is that third-party challenges – even those which begin a year or more before Election Day – generally lack the funds, organization, expertise, name-recognition, and press coverage available to major-party nominees.

The sheer task of mounting a fifty-state (plus DC) challenge has, again and again, proved overwhelming.

Basically, it can’t be done.

Moreover, there is a natural resistance to third-party challengers.  A challenger from the right, or from the populist “angry America” will – like Ross Perot in 1992 – tend to split the Republican vote, electing a Democrat.  A challenger from the left, or from the environmentalist “greens”, will – like Ralph Nader in 2000 – tend to split the liberal/progressive vote, electing a Republican.

Knowing this, most Americans are reluctant to countenance a nationwide, third-party challenge from their own end of the political spectrum.

But suppose the third-party challenge were not nationwide?

Suppose it were organized to contest only a handful of states, in which the third-party candidate had a realistic chance of winning?

A focused, third-party challenge, limited to a few states, could concentrate all the money, expertise, energy and passion of that challenge in a small area while the major-party candidates were, necessarily, waging nationwide campaigns.

Managed with care, a third-party challenge – limited to a handful of states – could result in neither of the major-party candidates winning a majority of the Electoral College.

In which case, under our Constitution, the choice of America’s next President would fall to the House of Representatives – with the three candidates winning the most Electoral votes as the finalists.  In that election, each state would have one vote, regardless of the size of its delegation.

Those are the rules.

Now, imagine this scenario:  An attractive, competent, challenger decides to enter the Presidential race, running in only two or three carefully-chosen states.  Focusing all of his or her resources on those states, the third-party challenger pulls it off - gaining sufficient Electoral votes to prevent either major-party candidate from winning a majority of the Electoral College.

The choice then goes to the House, voting by states.  And the challenger, with only a handful of Electoral votes, would have an equal chance of gaining the necessary 26 votes for election.

Now, given the political realities of the moment, the next House of Representatives will almost certainly be Republican.  More importantly, it will almost certainly contain a majority of state delegations with Republican majorities. 

And it’s difficult to imagine a Republican House electing a Democratic challenger – even at the cost of electing Donald Trump.

So this year, to pull this off, the challenger would have to be a Republican.

But it could be a sane, competent, respected Republican - someone most Americans would agree was preferable to Donald Trump. 

Suppose, for example, the challenger were Speaker Paul Ryan – Mitt Romney’s vice-presidential running-mate in 2012.  Speaker Ryan is far too conservative for my tastes, but he’s certainly capable, intelligent and experienced.  I’d vastly prefer him to Donald Trump.

Suppose Mr. Ryan ran for President in his home state – Wisconsin – which has ten electoral votes.  That might do it.

To be safe, suppose he also ran in a neighboring state – say, Minnesota.  And a heavily-Republican state such as Utah or Indiana, where his candidacy wouldn't be likely to tip the state to Mrs. Clinton.

And suppose he won enough Electoral votes to throw the election into the House.

He’s the Speaker.  And he’s not Donald Trump. 

Mr. Ryan would almost certainly be our 45^th President.

And I, for one, would be greatly relieved.