As a result of having fewer popular votes than Hillary Clinton, as well as his controversial candidacy more generally, there’s some discussion whether Trump’s Electoral College electors could vote for someone else for president. Given that somewhere over 100 electors throughout U.S. history have voted for candidates other than those they were elected to vote for, it’s an interesting constitutional question even outside the contours of this particular election.
The main value of the Electoral College today is that it generates clear winners when the popular vote is unclear. One might fairly ask how the popular vote for president in 2016 was not clear – Hillary Clinton received over 500,000 more votes than Donald Trump in the most current count, after all. And that’s true enough. But majority rule is not about who gets the most votes, it’s about who receives a majority of the votes. And Hillary Clinton did not receive a majority of the popular vote.
Despite President Obama having the opportunity to remake the U.S. Supreme Court with one nominee, Donald Trump will need to wait for the same opportunity. Not because Congress will confirm Judge Garland, and not because Congress won’t confirm Trump’s nominee, but because of the ideological configuration of the Court, and where Justice Scalia fell in that current configuration in relation to the other justices.
Last week I discussed why bicameralism is not necessarily a status-quo preserving institution, at least in the sense that conventional wisdom suggests bicameral legislatures produce less legislation relative to analogously situated (however defined) unicameral legislatures.
Commentators often ignore that in “strong” bicameral systems, as exist in the U.S., “second” legislative chambers can initiate legislation itself as well as kill legislation approved by the other chamber. Depending on how much legislation each chamber initiates, and on cross-chamber kill rates, it’s entirely possible that a bicameral legislature will enact more legislation than a similarly-situated unicameral legislature.
To be sure, it is a bit of a bait-and-switch to purport to consider the impact of veto players on legislative production and then initially discuss an institution that can initiate legislation as well as stop legislation. So let’s now face the original question fairly: What about institutions that can only veto legislation without also having the power to initiate legislation? Think of judicial review.
Conventional wisdom is that separation-of-power political systems are inherently conservative in the sense of being a status-quo preserving institution. As one adds veto points to the legislative process, the thought goes, less legislation will be implemented relative to a system with fewer veto points.
Most people think of judicial review in the way that Justice Owen Roberts described it in a 1935 Supreme Court decision:
The Constitution is the supreme law of the land ordained and established by the people. All legislation must conform to the principles it lays down. When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate, the judicial branch of the Government has only one duty — to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former. All the court does, or can do, is to announce its considered judgment upon the question.
It seems straightforward. A judge takes a law, sets it next to the Constitution, and determines whether the “latter squares with the former.”
The argument in The Federalist that the Constitution seeks to control majoritarian excess is well known. It seeks to control the influence of state-level majoritarian factions by nationalizing some policy areas for national rather than state control. And it creates national-level checks and balances, not to be anti-democratic, as so many critics would have it, but as a political version of “count-to-ten-when-you’re-angry-before-saying-anything” strategy to avoid taking action in a fit of passion that we might regret later. So important are these topics that their consideration have tended to overshadow a subsidiary theme developed at length in The Federalist, that of acquiring…
Professor Buckley argues in “American Exceptionalism” that presidents cause countries with the office to realize less freedom on average than countries with prime ministers. Below I explain why neither Buckley’s theoretical claims nor the empirical evidence he provides persuades me that his conclusion is warranted. Before digging into his argument, however, I do want to appreciate Buckley’s approach to the topic: Answers to questions of constitutional and institutional design are more contingent than many commentators, let alone the public, often allow. I am second to none in my admiration for what the U.S. framers created. They nonetheless advanced contestable theoretical and…
In response to: A New Critique of American Exceptionalism
Progressive intellectual leaders warred with the U.S. Constitution at the turn of the 19th Century. While conceding that the Constitution was an advance on its alternatives in 1789, Progressives criticized the constitutional system for having too many checks and balances relative to the needs of the modern times of the late-19th and early-20th centuries. Bicameralism, judicial review, the powerful congressional committee system, Progressives argued that all of these had the effect of checking good laws as well as bad. Progressive Sen. George Norris of Nebraska frankly argued that the constitutional system resulted in the enactment of too-little legislation relative to public need.
While effective, amending the Constitution proved too difficult in practice to achieve many of the Progressives’ goals. One means to accomplish Progressive legislative goals without the difficulty of constitutional amendment was the Progressive legal argument that judges should reflexively defer to legislation enacted at both the state and the national level.