Balkinization  

Tuesday, October 23, 2012

Justice Jackson on the Electoral College

Gerard N. Magliocca

At a certain point, you feel like you've read every interesting Supreme Court opinion.  Until recently, though, I was unaware of Ray v. Blair, 343 U.S. 214 (1952), which is the Court's most detailed analysis of the Electoral College.

Prior to the 1952 Democratic presidential primary, the Alabama Democratic primary instituted a rule that every presidential elector candidate had to swear an oath pledging that he would support the man nominated by the Democratic National Convention.  In 1948, Alabama's Democratic electors voted for Strom Thurmond, and the Party was trying to prevent a similar revolt.  One candidate refused to take this oath and sued claiming that he had a right to vote for any qualified presidential candidate under the original understanding of the Electoral College and the Twelfth Amendment.

The Supreme Court, by a 5-2 vote, rejected this challenge.  Justice Reed's opinion rested on the grounds that:  (1) this was an internal party matter; and (2) the pledge to support the convention's nominee was not necessarily binding.  (In other words, the Court did not reach the question of whether a state could lawfully punish a "faithless elector.")

Justice Jackson (joined by Justice Douglas!) dissented and wrote a fascinating critique of the Electoral College.  After describing the original concept of the Electoral College, he explained that:

"Electors, although often personally eminent, independent, and respectable, official became voluntary party lackeys and intellectual nonentities to who whose memory we might justly paraphrase a tuneful satire:  'They always voted at their Party's call.  And never thought of thinking for themselves at all.'  As an institution the Electoral College suffered atrophy almost indistinguishable from rigor mortis."

Justice Jackson then continued with a call to abolish the Electoral College:

"The demise of the whole electoral system would not impress me as a disaster. At its best it is a mystifying and distorting factor in presidential elections which may resolve a popular defeat into an electoral victory. At its worst it is open to local corruption and manipulation, once so flagrant as to threaten the stability of the country. To abolish it and substitute direct election of the President, so that every vote wherever cast would have equal weight in calculating the result, would seem to me a gain for simplicity and integrity of our governmental processes.  But the Court's decision does not even move in that direction. What it is doing is to entrench the worst features of the system in constitutional law and to elevate the perversion of the forefathers' plan into a constitutional principle. This judicial overturn of the theory that has come down to us can not plead the excuse that it is a practical remedy for the evils or weaknesses of the system."

He ended on this note:  "In the interest of free government, we should foster the power and the will to be independent even on the part of those we may think to be independently wrong."

Great stuff, especially as on the eve of an election where the popular vote winner could lose.


Comments:

Douglas' 10A dissent in Maryland v. Wirtz was also interesting.

I read that some time back & it is well worth reading this time around. One interesting tidbit differentiated "hard wired" provisions like two senators (see Prof. Levinson's writings) and:

Usage may sometimes impart changed content to constitutional generalities, such as "due process of law," "equal protection," or "commerce among the states."

But,I think the majority had a good case (if debatable) that the text here didn't bar the rule applied. Still, just to note that Jackson should not be seen as some dye in the wool originalist here.
 

Gerard:

Did Jackson or Douglas ever have the opportunity to rule on jury nullification?

BTW, the popular vote in this election will not be close enough for an electoral colege win by the loser.
 

It could be, Bart; Romney may have really screwed himself with the treatment of Paul delegates at the convention, several of whom will be Romney electors in a few weeks. And that treatment was utterly gratuitous, Romney had the votes to prevail at the convention even with all the Paul delegates seated and treated fairly.
 

Brett:

There is a low grade civil war going on in the GOP between the establishment and the Tea Party insurgency, of which the Paul people are a large part. The establishment won a rules fight against the Tea Party in the convention, which perversely may benefit the Tea Party if one of their candidates win the next time around.

If Obama's socialist governance had not unified the center-right in 2010, Romney very well could have lost this election with a split party. There are some millions of conservative voters who are very unhappy with both the Democrats and GOP and who are only voting Romney to fire Obama.

Along the same lines, if Romney does not carry through with his various conservative campaign promises, there will be an open revolt in the party ranks by 2014.

I think the Tea Party needs to hold another 9/12-style get together of another million folks at the D.C. Mall on Tax Day next year to remind the new GOP government for whom they work. I have a strong feeling they may forget as they divvy up their new found power.
 

Romney also might have really screwed himself by not being a great candidate overall.

The treatment was crude and probably counterproductive overall but it wasn't really "utterly gratuitous" either. The party leadership in recent years had a thing about sticking together. Such an insurgency was troubling to leadership.
 

No, they've had a thing about everybody else sticking with them. If their favored guy doesn't win the primary, they've had no hesitation about not supporting the candidate the members chose.

It's a one way demand of loyalty, nothing more than insisting they get their way no matter what.
 

Is our yodeler with this:

"There is a low grade civil war going on in the GOP between the establishment and the Tea Party insurgency, ...."

factoring in his "goldilocks guru" Glen Beck's reaction to the third debate, with his "why vote?" tweet? Yes, it's truly low grade but not very civil. Is R-MONEY/R-AYN 2012 moderate or extremely conservative? It's a variation on Miller Lite: Less filling, Grates the taste.
 

First, I still think this focus on Romney's treatment of Paul delegates as what "really screwed" him is a bit solipsistic. It doesn't really seem to be the thing that will "screw" him this election cycle. Putting aside the party controlled that, not Romney alone.

Second, I don't really know what this tells me:

No, they've had a thing about everybody else sticking with them.

This is a re-phrase. The national Republican Party has set forth stricter party loyalty standards in recent years than the Dems. This requires sticking together. That is "them" -- the party.

If their favored guy doesn't win the primary, they've had no hesitation about not supporting the candidate the members chose.

No. Both parties want to support the ticket. Everyone doesn't but it's something of a big deal if someone significant doesn't, like Lieberman. They do "hesitate." Use of the rules to try to get more delegates than your popular primary vote would seem to warrant also is not something I'm aware that there was no "hesitance" to do. Paul gamed the system. It was all legal and all but he gamed the system. The party, following recent trends, didn't like it. If someone tried this to this extent in '08, they very well might have did the same thing.

It's a one way demand of loyalty, nothing more than insisting they get their way no matter what.

That's party unity for you. The party for years didn't let their members go off the reservation that much, even when their views would lead them to vote the other way. When Gary Johnson, who is like Ron Paul's BFF given how the first thing I hear on a website for GJ is him praising the guy, gets more than 1% of the vote or so, I'll see how pissed off they are.

Even there, if Romney wasn't such a bad candidate, the numbers would be better for him. The Ron Paul thing alone is not likely to be a significant factor in vote totals.
 

Interestingly, just a few years later, in 1960, Alabama's electoral votes split 6-5 between dixiecrat Robert Byrd and JFK. As detailed here, Alabama's kooky method of choosing electors that year (voters had to vote for each of the 11 electors individually) made counting the "popular vote" problematic, but using the most reasonable method actually leaves Nixon the winner of the national popular vote.
 

I must object to Mr. DePalma's Obama's socialist governance. This mischaracterization of the Obama administration may be rampant among those of his political ilk but it is certainly not accurate according to, say, the Merriam Webster online dictionary. They say:

Definition of SOCIALISM

1: any of various economic and political theories advocating collective or governmental ownership and administration of the means of production and distribution of goods

2
a : a system of society or group living in which there is no private property

b : a system or condition of society in which the means of production are owned and controlled by the state

Clearly Mr. DePalma is misusing this word for its pejorative value, or in some kind of shorthand. Accuracy in argument would do him more credit. I trust that his legal thought and work are not replete with this politicized misuse of our glorious English language.
 

This comment has been removed by the author.
 

Larry:

Starting with the Obama nationalization of Chrysler in 2009, I noted that the Obama administration was a departure from standard American progressivism into something new. Over the next two years, I researched and wrote my book Never Allow A Crisis To Go To Waste defining and describing the various flavors of socialism imposed by this administration.

I do not use the term socialism as a pejorative and dismantle such superficial conservative attacks in the forward of the book which is included in the Amazon book sample here. This topic is too important to use as a political throwaway line.

Most generic dictionary definitions of socialism are as much in error as the conservative pejoratives. Like other political economies, socialism has evolved over the years and comes in multiple flavors. All of those flavors share two necessary elements: the government directs the economy to redistribute wealth. The means used to accomplish these ends account for the varieties in socialism.

Americans are most familiar with the classical socialism they were taught in school where the government owns business in order to direct the economy and redistribute wealth. Mr. Obama employed classical socialism in his nationalization of Chrysler and GM, which was a nearly identical replay of the British Labour government's nationalization of British Leyland in 1975.

Outside of American socialists and the community organizing folks (which are often the same people), most Americans are unfamiliar with German Zwangswirtshaft socialism, where the government permits nominal private ownership of business, but uses its police, taxing and spending powers to direct the economy and redistribute wealth. Mr. Obama employed Zwangswirtshaft in his "clean energy economy" and Obamacare programs. Read Chapter 10 discussing Zwangswirtshaft here.

Mr. Obama has been a socialist since at least university and, given the politics of his family and friends, very likely before then. Once he obtained power, nearly all of his major programs and policies are either some variety of socialism or a hybrid of progressivism and socialism.

Please do no cite Mr. Obama's campaign rhetoric as a rebuttal. Obama is part of the movement led by Michael Harrington which encouraged socialists to campaign as mainstream Democrats to realign the Democratic Party into an EU-style social democratic party. Indeed, Obama began his political career running for the Illinois Senate under both the Democrat and socialist New Party banners. It was only when Obama ran for the U.S. Senate that he distanced himself from the Democratic Socialists of America, ACORN and various communist groups who sponsored him up to that point.

Yes Virginia, Mr. Obama is very much a socialist and many of his programs socialism.
 

Our yodeler suggests with this:

"Mr. Obama has been a socialist since at least university and, given the politics of his family and friends, very likely before then. Once he obtained power, nearly all of his major programs and policies are either some variety of socialism or a hybrid of progressivism and socialism."

his next work of FRICTION may be along the lines of the MANCHURIAN CANDIDATE. [NOTE: John McCain might have better fit this role, fictionally of course, with his POW status.]

With R-MONEY agreeing with Obama's foreign policy (to the chagrin of our yodeler's goldilocks guru Glen Beck), does The Mittster (aka TOMBSTONE, CHAMELEON) become a tad of socialist was well?
 

Don't worry, Baghdad, I'm sure Mittens will go back to warmongering if he is elected. He's just pretending to love everything Obama has done so he has a chance of winning.

By the way, if you have to lie as much as Mittens has been lying in order to get elected, you are going to be a miserable failure as president. I smell another W.
 

You must be new here Larry.
 

I'm sure it won't take Larry long to figure out that Baghdad Bart is nothing but a propaganda spewing troll.
 

Larry:

I neglected to note that, after I dismantled the conservative pejorative arguments in my Forward, I followed up by observing that the rebuttal arguments from the left were little more than hysterical rants of name calling.

As you can see from the past few posts, very little has changed.

I sometimes wonder whether it is even possible to have a sane discussion of a hot button issue any more.
 

come on guys, so who do you think will win in this tight race? - Mark Gates of www.bestproduct4u.com
 

I sometimes wonder whether it is even possible to have a sane discussion of a hot button issue any more.
# posted by Bart DePalma : 3:09 PM


Not with propaganda spewing trolls like you.
 

There is no one who gets his ass kicked more frequently than Baghdad Bart, but that does not stop him from declaring victory and bringing up the same debunked arguments over and over and over. Eventually all that is left to do is mock him.
 

Mark:

The race is not tight at all.

A combination of Romney's debate performance and the media polls discovering millions of GOP voters they somehow left out for the past several months translates into what is essentially a Romney lead of 50% to 46%.

The question is whether the remaining 4% undecided break for the challenger are they generally have done in the past, making this a 1988 level election, or split as they did in 2004, making this a 2004 level election.

Obama actually sent out a mass email yesterday beginning with: "I don’t want to lose this election."

So far, the Romney ground campaign has substantially boosted the GOP early voting over 2008, while Team Obama is well off their 2008 numbers for Dem voting. This does not count the Indis, who have pivoted roughly 16 points from an Obama 8% lead in 2008 to a Romney 8% (or higher) lead today.
 

Bart

"Americans are most familiar with the classical socialism they were taught in school where the government owns business in order to direct the economy and redistribute wealth"

"Most generic dictionary definitions of socialism are as much in error as the conservative pejoratives"

You're practically admitting here that you've come up with an idiosyncratic definition of socialism that few share. With few surprises that definition refers to the political figure you most dislike in the US today!

"German Zwangswirtshaft socialism, where the government permits nominal private ownership of business, but uses its police, taxing and spending powers to direct the economy and redistribute wealth"

Here what you've done is taken what is to most people the central element of socialism, government ownership, out. It's as if you said "the US is a Nazi state, but a version of Nazism with no focus on the racial superiorty of the Aryan."

"Mr. Obama employed classical socialism in his nationalization of Chrysler and GM"

The federal government owns about a quarter of GM's stock. This is hardly the nationalization of 'classical socialism.'

"the Obama administration was a departure from standard American progressivism into something new"

Yes, instead of his signature proposal being a huge, entirely government run program like the Social Security of FDR or the Medicare/aid of LBJ, he instituted a reworked AEI idea preserving a huge role for the private sector. That is quite a departure. Too bad it's in the opposite direction you are arguing...


 

This comment has been removed by the author.
 

Bart

"The race is not tight at all"

Rassmussen, which is traditionally not unkind to GOP candidates, has had only two days of Romney over Obama by 4%, and the margin of error is 3. That's potentially pretty tight.

Notice Rassmussen has the electoral map at 237 for Obama and 235 for Romney, with seven states as toss-ups. Of those the most recent Rassmussen polls show Nevada and Wisconsin for Obama (both by two), Colorado, New Hampshire and Virginia for Romney (by 4, 2 and 3, respectively), and Ohio and Iowa tied. If Nevada and Wisconsin go as Rassmussen has them and Obama wins Ohio, which is listed as tied, that's 271.

That's close.
 

BD: "Americans are most familiar with the classical socialism they were taught in school where the government owns business in order to direct the economy and redistribute wealth" "Most generic dictionary definitions of socialism are as much in error as the conservative pejoratives"

Mr. W: You're practically admitting here that you've come up with an idiosyncratic definition of socialism that few share.

Actually, this is more of an indictment of the average and even highly educated Americans' ignorance of socialism.

If you would like, email me with your address and I will send you a copy of my book. I did a great deal of research on this subject and define socialism and distinguish it from political economies like progressivism and the oxymoronic concept of state capitalism.

Mr. W: With few surprises that definition refers to the political figure you most dislike in the US today!

Mr. Obama has implemented variations of nearly every form of socialism apart from communism. My brief summary above did not get to economic democracy and others.

BD: "German Zwangswirtshaft socialism, where the government permits nominal private ownership of business, but uses its police, taxing and spending powers to direct the economy and redistribute wealth"

Mr. W: Here what you've done is taken what is to most people the central element of socialism, government ownership, out. It's as if you said "the US is a Nazi state, but a version of Nazism with no focus on the racial superiorty of the Aryan."

I did not create Zwangswirtshaft, a German industrialist by the name of Walther Rathenau did at the turn of the last century.

Ironically, after anti-semitic terrorists murdered Rathenau in the 1920s, the Nazis adopted his version of socialism to take over the German economy and direct it to support its war machine.

Because the Nazis adopted Zwangswirtshaft, more than a few conservatives observing Obama's similar imposition of Zwangswirtshaft have mistakenly buttonholed Obama as a fascist.

In any case, after it became plain that the Soviet communist experiment was failing, the French and then the American left in the 1960s and 1970s adopted Zwangswirtshaft under a variety of different names. I trace it all the way to ACORN and the community organizing community by the 1980s. One of Obama's advisors from the Democratic Socialists of America was an early proponent of this approach.

BD: "Mr. Obama employed classical socialism in his nationalization of Chrysler and GM"

Mr. W: The federal government owns about a quarter of GM's stock. This is hardly the nationalization of 'classical socialism.'

Mr. Obama strong armed the bankruptcy court into ordering the sale of every useful asset of GM and Chrysler to new government created corporations, illegally used TARP money to pay for it, illegally distributed some of those taxpayer owned equity shares to the UAW (a nod to economic democracy socialism), and then gave himself the power to appoint majorities of both boards and all of their officers. Obama and soon Romney retain that appointment power even though the government is now a junior shareholder in the companies. Nationalization.

Mr. W: "he instituted a reworked AEI idea preserving a huge role for the private sector."

What role for the private sector?

Under Obamacare, the government designs the policies private insurers may sell, effectively sets their price through a variety of regulatory carrots and sticks, determines what are allowable administrative costs and caps those costs, directs where insurers can sell their policies, directs how they can market the policies and then commands the rest of us to buy the government directed product.

A very faithful application of Zwangswirtshaft.
 

Bart

"this is more of an indictment of the average and even highly educated Americans' ignorance of socialism"

Bart, this is hardly a rebuttal to the charge that your definition of socialism is idiosyncratic. The fact that it seems to be so and that it also seems to fit the political figure you dislike so greatly are what makes it dubious to me.

As to GM, what kind of nationalization would involve the near immediate selling of over half the stock the government had?

"What role for the private sector?"

Without getting into the rather obvious distinction between single-payer systems and Obamacare (I mean, if Obamacare has no role for the private sector, then how can single-payer have less?) that upset this argument, let me point to just one, and it's critical given most people's understandings of socialism: what role for the private sector? Why, the private keeping of profits. That's an odd socialism there.


 

To get our yodeler into more of a pique, he might read:

At today's WaPo, E.J. Dionne's"How the right wing lost in 2012" and Fareed Zakaria's "The U.S. economy is recovery well."

At today's LATimes, Michael Kinsley's "Romney the peacenik."

Alas, the Tea Party is like a spent bullet. Even R-MONEY recognizes this, based upon his "endorsement" of Obama's foreign policy. R-MONEY is dumping Bush/Cheney and the Neocons (no, not a musical group like Gladys Kinght and the Pips), giving John Bolton fits and 'stach twists. So our yodeler echoes his own work of FRICTION in casting Obama as a socialists. While our yodeler pretends that he does not use the term as a pejorative, what other purpose in reality does it serve?

Note that our yodeler claims credentials in economics; now he looks back at Obama's childhood, his parents, his grandparents, his stepparents, to base his claim. Our yodeler is astounding with his claims, which reminds me of the 60 Minutes Report last Sunday on the Mile High City - those fumes must be drifting to our yodeler's hilltop idyllic community, thus explaining his BUI (Blogging Under the Influence).
 

Shag:

Both sides' punditry are in full campaign mode and I am largely restricting myself to the polling and voting numbers.

No president has won reelection with polling numbers this low and Obama is only a tick or two above where Carter was a couple weeks out from his landslide wipeout.

As to the subject matter of my book, I only dedicated a single chapter to Obama's history before being elected President. That field had been well plowed before. More importantly, as many old neocons should know from personal experience, folks can be socialists in their youth and grow up to become conservatives. I was far more interested in discussing what Obama was dong with his power.

 

Bart

Obama's numbers are historically low for an incumbent President, but at 47.7 (RCP average) they are about where W Bush was at this time in 2004 (48.8). As I argued previously given our electoral college system the real thing to watch is that map. I think Obama's road there, to keep what he has and take Wisconsin, Nevada and Ohio looks mighty probable.
 

Mr. W: That's close.

I suspect you did not read my links above for content.

Let me sum up:

1) Nearly every poll from left to right has Romney winning Independents by an average of around 8%, the margin Obama enjoyed in the 2008 election. Even if the Democrats enjoyed a 2008 enthusiasm advantage, there are not enough Dem voters to offset this shift in Indis.

2) This cycle, the GOP enjoys their greatest enthusiasm advantage since maybe 1984 in Gallup polling, higher than in both 2004 and 2010 when the GOP made up about 35% to 36% of the electorate and tied with Dems in the Edison exit poll notorious for missing GOP voters.

3) Voters who are undecided at this point in presidential reelection contests historically break to the challenger. This is why the CW says the president needs to be at 49% or above to win. Obama is closer to the 45% Jimmy Carter was at two weeks before Reagan wiped him out.

This is why the Democrat adjuncts at MSNBC were not celebrating their poll's 47% to 47% result as a close election. The NBC polling analyst, Chuck Todd, correctly and glumly observed that these are great numbers for a challenger and awful numbers for an incumbent because most of the 6% undecided are going to the challenger.

And all of this does not address the ridiculous overcounts of Dem and especially undercounts of GOP voters in half of these polls.

This race is not close.
 

While those are interesting points I'll point out again that all Obama need do is hold the states that Rassmussen says are solidly his and win Nevada, Wisconsin and Ohio where, according to Rassmussen he is ahead and at 50 (Nevada and Wisconsin) or tied and at 49 (Ohio). That strikes me as doable and hence a close race.
 

Jack Balkin with his link to his current Atlantic essay in his latest post serves up more piquing duck for our yodeler, who should get ready for his MIllion Tea Bagger march on Washington, DC IF R-MONEY is elected.

By the Bybee [expletives deleted], Jack's essay is well done, except that his treatment of Jimmy Carter may not be quite fair since his defeat was most likely attributable to the hostage taking in Iran.
 

Mr. W:

FWIW, Nevada is a fascinating place.

Harry Reid has a very effective political machine there.

But much of that machine are Mormons (a not insubstantial part of the Nevada population) and would not mind seeing the first Mormon president.
 

Shag:

As Jack correctly notes in his latest post, to conservatives, this election is first and foremost about firing Barack Obama and ending the disaster that is his administration (the last sentiment being ours and not Jack's).

Romney is a supposedly reformed RINO who won the nomination to be the Obama replacement because he campaigned to the right of all of his opponents and said all the right things.

Will he govern as the conservative he campaigned as or revert to being a RINO? Who knows?

From a conservative point of view, the best outcome is the Reagan case: Romney is actually a conservative, his experience as governor in a Democrat state is like Reagan in California, and once given a mandate for conservative change as president, he runs with it.

The next best outcome would be the Clinton case: Romney has no particular principles other than climbing the political ladder, determines the electoral winds are blowing right and signs off on most of what a conservative Congress sends him.

The worst outcome is the Bush 41 case: Romney is a RINO and reverts to kind in the White House, signing off on tax increases and new entitlements.

We shall see.
 

Our yodeler's "sentiment" is indeed colorful, as usual.
 

Our yodeler is a fucking lunatic.
 

Bart

Yes, many people overlook that Mormons are about 5-6% of the population of Nevada. I think though that for this election the more relevant number is the percent of the population that is Hispanic: 25+
 

Mr. W:

I am more concerned with various demographics as a percentage of the electorate, not of the population.

A large part of the Hispanic population are illegals or non-citizens who cannot legally vote. While some small percentage of illegals and non-citizens probably end up voting in states which do not check citizenship, it is probably not as large as Dems hope and Reps fear.
 

Bart

Even if a significant number of the 25% of Hispanics are illegals they would still dwarf the 5% of the population that is Mormon...
 

Mr. W:

I did not disagree with your original point about the comparative sizes of the two groups.

My original point was that a significant element of the Reid coalition which reelected him by a narrow margin in 2010 will likely bolt to Romney in two weeks.
 

Bart

Point taken, but consider that Hispanics are one of the groups that tend to turn out in greater numbers for presidential elections than for mid-terms. If I were a betting man, I'd bet that the higher turn-out among this Obama supporting group will outnumber the number of Mormon defectors.
 

Mr. W:

Hispanics have the lowest enthusiasm of any demographic group and, as you have seen in my prior posts, Romney has now split the Hispanic male vote with Obama.

This is why Obama is living on college campuses and doing very little campaigning among Hispanics.
 

If Obama is not campaigning among Hispanics I imagine it is because polls show him getting 61%-70% of their votes to Romney's 26-29%.

http://news.investors.com/special-report/508415-ibdtipp-poll.aspx

Further, more Hispanics are eligible to vote this election than in 2008 and Hispanic turnout, while lagging behind other demographic groups, has increased in recent elections. Perhaps this year the trend will not continue, but one can't conclude that now.

http://www.people-press.org/obama-romney-voter-preferences/#all-registered-voters

Of course, since Hispanics make up about a quarter of Nevadans and Mormons 5%, the eligibility, enthusiasm and turn out could all be lower than the above evidence indicates and it would still easily dwarf a strong turnout by Mormons.
 

Thanks for sharing this site, nice...said boxenschilder
Elmshorn Textildruck
 

HD kaliteli porno izle ve boşal.
Bayan porno izleme sitesi.
Bedava ve ücretsiz porno izle size gelsin.
Liseli kızların ve Türbanlı ateşli hatunların sikiş filmlerini izle.
Siyah karanlık odada porno yapan evli çift.
harika Duvar Kağıtları bunlar
tamamen ithal duvar kağıdı olanlar var
 

Post a Comment

Home