The Other McCain

"One should either write ruthlessly what one believes to be the truth, or else shut up." — Arthur Koestler

Let’s Take Chris Hayes Seriously

Posted on | September 2, 2019 | No Comments

 

Nothing was easier than the point-and-laugh reaction over the weekend after Chris Hayes argued on MSNBC that “the weirdest thing about the Electoral College is the fact that if it wasn’t specifically in the Constitution for the presidency, it would be unconstitutional.”

This bizarre tautology — “The ocean would be dry if it wasn’t so wet” — provoked howls of laughter, and a stinging rebuttal on Twitter:

As I’ve pointed out before, Hillary Clinton’s popular-vote majority in 2016 was entirely explained by her lopsided margin in California:

One of the “arguments” (an excuse, actually) employed by Democrats after Hillary Clinton lost the 2016 election was, “She won the popular vote!” To which the proper reply is, “Where?” In a handful of large urban states where Republican Donald Trump did not campaign, Clinton won by huge margins, and this proves . . .? Nothing, really.
In California, Clinton won with 62% of the vote, 7.4 million to 3.9 million, a margin of nearly 3.5 million votes (3,446,281 to be exact). Nationwide, Clinton got 65,853,516 votes to Trump’s 62,984,825 — a margin of exactly 2,868,691. In other words, her margin in California alone was more than enough to account for why she “won” the popular vote, which is completely irrelevant in our Electoral College system.

If it had been the intent of our Founding Fathers that the president be elected by a nationwide referendum, they could have done that, and yet they didn’t, to the puzzlement of Chris Hayes. Presidential campaigns might be organized much differently — why bother visiting New Hampshire or Iowa? — if it were all just a 50-percent-plus-one referendum. But the Constitution says otherwise.

When you look at election maps, you see that the Republican Party suffers from a disadvantage because it has failed to organize or campaign effectively in three large states — California (55 Electoral College votes), New York (29) and Illinois (20). Given the landslide majorities enjoyed by Democrats in those states (62% for Hillary in California, 59% in New York, 56% in Illinois), the GOP begins every presidential campaign by conceding 104 Electoral College votes to Democrats, who thus more or less automatically have 39% of the 270 electoral votes needed to win the presidency. And yet if you look at the county-by-county map, you realize that, even in these three Democrat landslide states, there are still large areas where the GOP vote is a majority. Republicans win among rural, small-town and suburban voters, whereas the Democrat vote is concentrated in urban areas. Does anyone, even Chris Hayes, imagine that the authors of our Constitution intended the federal government to represent only urban interests? Don’t be absurd.

Seriously, what was the substance of Chris Hayes’s argument?

You can see why, on just basic tactical grounds, why the Republican Party would want to continue a system in which they can lose a majority of votes and still get all the powers of the presidency, appointing the Supreme Court justices and judges and signing legislation, vetoing legislation, commanding the army, everything, right? All of that with less [or fewer] votes than the Democrat got.
No wonder they like. But I think there’s actually a deeper philosophical thing happening, which is the question of what exactly American democracy is for. And the weirdest thing about the Electoral College is the fact that if it wasn’t specifically in the Constitution for the presidency, it would be unconstitutional.
Here’s what I mean by that. Starting the 1960s, 1961 particularly, the Supreme Court started developing a jurisprudence of one person, one vote, right? The idea is that each individual vote has to carry roughly the same amount of weight as each other individual vote which is a pretty intuitive concept but it was not a reality.

In other words, Chris Hayes is basing his argument against the Constitution on Supreme Court decisions from the 1960s. What he calls “a jurisprudence of one person, one vote” was established in a series of cases (Baker v. Carr, 1962; Gray v. Sanders, 1963; Wesberry v. Sanders and Reynolds v. Sims, 1964) in which the Warren Court replaced the actual requirements of the Constitution with an egalitarian doctrine derived from an imaginative interpretation of the Fourteen Amendment.

Justice John Marshall Harlan II’s dissent in Reynolds is a memorable denunciation of the Warren Court majority’s usurpation of authority that the Constitution never contemplated for the Supreme Court, given that nothing in the Constitution (and certainly not in the Fourteenth Amendment) gives the federal government any role in determining legislative districts. As in so many other issues during the 1960s and ’70s, the Supreme Court’s claim to near-dictatorial power (“the pervasive overlordship of the federal judiciary,” as Harlan called it) helped inspire the rise of the conservative movement as a means of limiting this kind of judicial tyranny. The mischievous activity of the Warren Court, which Chris Hayes argues is more relevant than the Constitution itself, tended toward a manifestly un-democratic system — centralized government by an elite that recognized no limitations to its power to interfere with the lives of citizens in ways that would have shocked the Founders.

The fact that Chris Hayes and other Democrats are now arguing for the abolition of the Electoral College is yet another reason to re-elect Trump in 2020, just in case you needed another reason.



 

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