Tuesday , March 18, 2014 - 12:09 PM
"...it may be proved that no society can make a perpetual constitution, or even a perpetual law." Thomas Jefferson -- September 6, 1789
During this nation's colonial times individuals generally enjoyed as much liberty as their local or colonial government wanted to grant them. There were colonial laws regulating the personal lives of citizens, including gun use and who people could marry. Frequently those wanting more liberty moved west to escape the reach of government. The adoption of the Constitution did not change this since the Bill of Rights applied to and limited only the national government.
In the struggle to expand individual liberty very few have contributed as much as U.S. Supreme Court Chief Justice Earl Warren. During his tenure (1953-1969), individual liberty was repeatedly expanded at the expense of states rights as the court made provisions in the Bill of Rights applicable to the states. Significantly, Warren wrote in his memoirs that he regarded a 1962 case concerning voting rights (Baker versus Carr) as the most important decision of his tenure. Tennessee had apportioned its legislature so that a single vote in one county was worth 19 votes in another.
Warren realized that because the beneficiaries of this lopsided and unfair arrangement were reluctant to relinquish power there could be no legislative remedy. He concluded "the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise." Warren led the court to eventually require that one person get one vote in state elections.
The are parallels and similarities with Tennessee then and the electoral college(EC) today. Consider the way the EC operates today:
* Under the EC, the value of a vote depends on three things: 1. Location, 2. Location, 3. Location. In 1976, if Ford could have moved 10,000 votes to different locations he would have won. Moreover, there have been 21 similar elections where if a small number of votes were moved from a solid state to a swing state, a different outcome would have occurred.
* With the EC, black votes suffer dilution disproportionately and this debasement minimizes their impact. Jamin Raskin notes in the election of 2000 that over 90 percent of blacks voted for Gore. Yet 58 percent of them lived in states where 100 percent of the electoral votes went for W. Bush. Well over 20 million blacks lived in states where 100 percent of the EC votes went to Bush. Interestingly, the EC once served slave states by allowing them to count 100 slaves as 60 people when the electoral power of the state was calculated.
* The EC is utterly repugnant to our nation's highest ideals. The Declaration of Independence states that "all men are created equal" and that governments derive "their just power from the consent of the governed." The nation has had four elections where the Democratic candidate won the popular vote but lost the election. Our nation's most important election is the only one where all the participants' votes are not counted equally and where the will of the people is thwarted.
Prior to the Civil War, those wanting to retain slavery invoked the Constitution and states rights; today those wanting to retain the EC invoke the same.
Some rights we enjoy were granted by the founders, but certainly voting is not one of those. At the Constitutional Convention the lofty rhetoric of the Declaration was ignored to accommodate a wide variety of different voting qualifications from state to state. Some states allowed almost any male to vote regardless of their wealth. Other states required a voters to be wealthy; thus some men who had endured years of suffering and had lost limbs fighting for this nation's independence in the American Revolution were not allowed to vote. In 1829, a group of Virginians made a vain appeal for voting rights, noting how poorer people were used by privileged classes to defend the state: "If the landless citizens have been ignominiously driven from the polls, in time of peace, they have at least been generously summoned, in war, to the battlefield."
Since the essential thrust of the Constitution was to move toward a unified economy, and not to promote individual rights, voting was left to the states. At the convention, the idea of establishing a national voting standard never came up; it was understood that the Constitution would be more palatable and marketable to the local elites if it allowed them to retain their prerogatives.
To leave state power intact, the Constitution (Article 2, section 1) allowed each state to choose electors for presidential elections. Although the Constitution had been promulgated with "We the people," states had the prerogative to decide who "the people" were. Thus, voting was a privilege, not a right. The Warren Court undermined that notion in 1965 when they overturned a Texas law that prevented members of the U.S. military from establishing residency.
Jefferson noted that a man is not required to wear the same coat he wore as a boy.
We would honor his highest ideals if we had presidential elections where all votes were created equal.
Jones lives in West Haven.
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