Larry Lessig, Geoff Stone, and other law professors have called for the electors on the Trump slate to abandon him and so throw the election into the House of Representatives. They argue that the electors have this constitutional right even in the face of state statutes that forbid them from doing so, because the Framers gave electors the power of discretionary selection. They are empowered to use their own judgement and are not tied to the views of those who selected them.
I agree that electors have the constitutional right to vote for whomever they choose for the reasons that my friend Robert Delahunty brilliantly provides in a recent essay. I do not agree, however, that it would be prudent to do so. Indeed, if the objective is to prevent a Trump presidency, the exercise is a pointless one. Republicans control 31 state delegations in the House and almost every Republican member from those states comes from a district Trump won. It is inconceivable that there would be a House majority for anyone else, particularly so late in the transition process. Indeed, a cynic might conclude that the objective of throwing it to the House is to draw out the acrimony over the election, make Trump less legitimate, and yoke House Republicans more closely to his presidency in case of its failure.
And, unlike Delahunty, those who are arguing for the discretion of electors are generally not originalists. And this raises questions about the consistency and neutrality of their jurisprudence. Living constitutional, historical practice, and pragmatic arguments all cut against permitting electors the discretion that the original meaning confers.
The Framers of the Constitution recognized that in a country as extensive as the United States, compromise between partisan groups was the price of Union. The zone of acceptable compromise had constantly to be calculated and reconsidered because Americans put the Constitution to practical use by using it as a partisan instrument to win substantive policy conflicts.
The public career of John Quincy Adams poses this paradox: he was the greatest ever Secretary of State but only a mediocre President. As Secretary of State, he concluded the Adams-Onis treaty with Spain and the 1818 convention with Great Britain. Both were diplomatic triumphs, gaining Florida for the United States and resolving border disputes with both nations. He was the architect of the Monroe doctrine, the cornerstone of American foreign policy in this hemisphere until the present day. He articulated more eloquently than any other Secretary of State a preference for America’s soft power over military deployment. The United States, he said, “goes not abroad in search of monsters to destroy. She is the well-wisher to the freedom and independence of all. She is the champion and vindicator only of her own. She will recommend the general cause, by the countenance of her voice, and the benignant sympathy of her example.”
John Quincy Adams’ presidency was a disappointment.
Angelo Codevilla comes to Liberty Law Talk to discuss his latest book To Make and Keep Peace Among Ourselves and with All Nations. Our conversation focuses on Codevilla’s main argument that American statesmen increasingly fail to understand the nature and purpose of statecraft: the achievement of peace. So what does it mean to achieve America’s peace? To do so, Codevilla insists, requires concrete evaluation of the means and ends necessary to protect American interests. This requires particular judgments about power, interests, and the practial reality we are confronted with. Our practice, for well nigh a century, has been to speak in…
Our Ruling class is at odds about how to respond to the Middle East warring factions’ threats and blandishments because it has forgotten US foreign policy’s basic principle – we are on America’s side – and never learned what justifies departure from that principle, namely war.
John Quincy Adams best stated the principle. America, he said, “is the well-wisher to the freedom and independence of all. She is the champion and vindicator only of her own. She will recommend the general cause, by the countenance of her voice, and the benignant sympathy of her example. She well knows that by once enlisting under other banners than her own, were they even the banners of foreign independence, she would involve herself, beyond the power of extrication, in all the wars of interest and intrigue, of individual avarice, envy, and ambition, which assume the colors and usurp the standard of freedom.” When foreigners war amongst themselves, we Americans must take neither side. If and when we do, we make their wars our own. Then we must deal with the consequences according to the logic of war.