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On the structure of our government - part 2

Part two of this series of posts presents my understanding of the role of the Presidency, as it's defined by our Constitution. As in some of my other posts, I will be including quotes from the Constitution and its amendments, as well as other references. When I do, I may emphasize a point or two in the quotes. That emphasis is not in the original documents, I've added it to illustrate my points.

I'm well aware that I am not a legal expert. Even so, I believe that the plain words of the Constitution are meant to give the common man a clear understanding of what the founders intended when they established our republic. I personally believe that the government established by the founders is the best system of government that the world has ever seen. Yes, it has flaws, but the founders were careful to establish a government that provides liberty to the greatest number of people and protects our interests as a nation.

The Executive branch of our government is established in Article II of the Constitution. There have been several amendments to this part of the Constitution, and we'll probably have to discuss them as well.

The Executive Power

Article II begins by declaring that the executive Power belongs to the President alone, and establishes the President's and Vice President's terms at four years. It then proceeds to define the process by which the President and the Vice President are elected, and the qualifications required by the office.

Before we get into too much detail about the election process, let's look at the first part of Article II.

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

The Constitution does not grant the executive power to the Legislature or the Courts. It is granted specifically to the President, and only to the President. I think this is rather important. I'm sure the founders did too.

So, what exactly is the executive Power? Well, according to Dictionary.com, we find that executive, when used as an adjective means:

4. of, pertaining to, or suited for carrying out plans, duties, etc.: executive ability.

5. pertaining to or charged with the execution of laws and policies or the administration of public affairs: executive appointments; executive committees.

According to Merriam Webster's Dictionary of Law, also found at Dictionary.com, we also find this definition:

1 : of or relating to the execution or carrying out of laws <serving a warrant is an executive function> especially : belonging to the branch of government that is charged with such powers as diplomatic representation, overseeing the execution of laws, and appointment of officials —see also ADMINISTRATIVE Article II of the CONSTITUTION in the back matter —compare JUDICIAL, LEGISLATIVE

So the President has the power to execute the laws and policies of the United States, and to administer public affairs, and to represent the U.S. in diplomatic affairs. The Constitution enumerates specific powers of the President in Article II, Section 2. We'll come back to them in a bit.

What I want to emphasize here is that the Executive Branch of the government executes the laws and speaks for the United States. No other branch of the government is given that power.

Recently we have seen Senators and Representatives attempt to usurp that power. Speaker Pelosi's delegation to Syria comes to mind quite readily. Many people have defended this by saying that the United States needs a new direction in its foreign policy. Some on the left have even gone so far as to say that President Bush (in some cases, a more disparaging epithet was used) does not speak for America. I refer those people to the previous discussion, and I would like to remind those people that the Constitution provides a mechanism by which that new direction can be taken.

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

and

Section. 4.

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

In other words, if you don't agree with the foreign policy of the government, as executed by the Executive branch of the government you have two options: Wait for the President's term to expire and elect a different President; or Impeach the President and allow the Constitution's mechanism Presidential succession to give you a different President.

Clearly the actions of those Senators and Representatives that disagree with the administration's foreign policy and take matters into their own hands to negotiate or conduct diplomacy with foreign governments are usurping Presidential power and violating the Constitution.  This is a blatant violation of their own oath of office.

Presidential Elections

Just as with the Senate, the founding fathers did not intend for the President or the Vice President to be elected by the people of the United States. Instead, the original intent was for the various state legislatures to choose electors, in whatever manner they saw fit. Each state legislature was instructed by the Constitution to choose a number of electors equal to the whole number of Senators and Representatives. No Representative, Senator, or person holding an Office of Trust or Profit could be an elector.

Those electors would vote, casting a vote for two people, one of whom was not a resident of the same state as the elector. The ballots were to be tabulated, the list signed and certified, and sent to the President of the Senate. The person receiving the most votes was then declared the President, and the person receiving the next most votes was declared the Vice President.

This process was modified by the 12th amendment. The principal change provided by the 12th amendment was that now the electors would vote for a President and they would vote for a Vice President.

Before and after the 12th amendment, it required a majority of the votes of the electors to select a President. A plurality wasn't enough. So, if three people are candidates for the office and none of them receives a majority of the votes of the electors chosen, then the selection of the President fell to the House of Representatives.

The 12th amendment changed the actual mechanism here as well. Before the 12th amendment, if there was a TIE between two individuals, the House would vote to choose which of the two would be President. The other person would become the Vice President; Otherwise, the House would vote to choose the President and the from the top five contenders, with the most votes determining the President, and the next most votes determining the Vice President, unless there was a tie for Vice President, in which case the Senate would choose the Vice President.

With the 12th amendment, when the House selects a President they choose from the top three contenders. If no Vice Presidential candidate wins a majority then the Senate selects a Vice President from the top two contenders.

The House of Representatives doesn't get to choose a President and the Senate doesn't get to choose a Vice President very often. Only when nobody receives a majority of electoral votes do they get that privilege. When the House of Representatives does select the President, each state gets one vote. When the Senate selects the Vice President, every Senator gets a vote.

In any case, selection of a President and Vice President has nothing whatsoever to do with a vote of the people. No amendment to the Constitution changes this. The electors today are still chosen and appointed in the manner directed by the state legislatures.

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

No amendment has changed this. Not even the 24th amendment changes it. The 24th amendment discusses the right to vote for electors, but it doesn't change the fact that the state legislatures direct the manner of the appointment of electors.

AMENDMENT XXIV

Passed by Congress August 27, 1962. Ratified January 23, 1964.

Section 1.
The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax.

Section 2.
The Congress shall have power to enforce this article by appropriate legislation.

As I understand it, this amendment means that if the state legislature determines that a vote by the people of that state should be used to appoint electors that no citizens' right to vote can be denied or abridged for failure to pay taxes.

[Update: I've thought about this a little more, and I suppose that the argument could be made that when the 14th amendment was passed that it was assumed that the people would vote for the electors. Section 2 of the 14th amendment modifies how the number of Representatives for each state would be chosen. The basic intent here was that since slavery was abolished by the 13th amendment that the concept of a slave being a "partial" person was wrong.

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

This seems to imply that the 14th amendment grants the people the right to choose the electors. It's a bit of a tricky issue though, since it does not explicitly alter the power of the state legislatures to direct the manner of the choosing of the electors.

It certainly encourages the state legislatures to have the people vote for the electors though. This is because the percentage of male citizens 21  (18 after the 26th amendment) years of age in the state that have the right to vote for Presidential and Vice Presidential electors directly determines how well represented the state will be in the federal House of Representatives.]

Plainly put, the President of the United States is elected by special representatives of the states (the electors), NOT by the people. The founders never intended for the selection of the national executive to be a popularity contest.

The fact is, of course, that the people vote for the electors. Every state legislature has directed that the electors should be chosen by a vote of the people. They still retain the right to change that directive, and to specify some other method of choosing electors, even random chance. [Update: Of course, the 14th amendment discourages making such other choices.]

So what does that all mean? Well, first of all, the nation-wide popular vote for President means diddly-squat! The President is not elected by the people. The President is elected by a majority of the electors chosen by the states.

Complaints from the left that President Bush isn't a legitimate President because he didn't win the popular vote in 2000 are therefore based on willful ignorance of the Constitution. He did win the popular vote in 2004, but that's not how he was elected. He was elected in both cases by a majority of the electors chosen by the states.

In both 2000 and 2004 President Bush was elected by a majority of the electors chosen by the states. In both cases, he was legitimately elected, and chosen to be the President of the United States in the manner specified in the Constitution.

I submit therefore that President Bush does indeed legitimately speak for the United States, all claims to the contrary by the left not withstanding. The power to execute our laws, and to conduct diplomacy with other nations, and to exercise all of the other powers granted to the President by the Constitution rightfully belong to President Bush. They do not belong to the Speaker of the House or to any other Representative or Senator.

So what about the 2000 election? Some on the left like to say that President Bush was selected, not elected. They like to point out that five justices determined who would be President in 2000. Does the Constitution grant the courts any role in choosing the President?

Technically the answer to that question is No. Practically however the Constitution does grant to the supreme Court the appellate jurisdiction over all cases in Law and Equity, both as to Law and Fact. When Al Gore decided to bring the election results in the State of Florida to court, he did so under Florida law. And it was Al Gore that first decided to litigate the election results.

Florida's laws allowed for election challenges in the courts, so Al Gore was fully within his rights to take the course of action he chose. And, of course, George Bush was fully within his rights to counter-sue to ensure that if any ballots were to be re-tabulated, they all should be.

When the case finally ended up before the supreme Court, the decision made by the court wasn't who should be President. The Constitution didn't give the courts that authority. Instead the court decided that to be fair, all of the ballots should be tabulated, that picking and choosing among specific counties or precincts violated the equal protection clause of the 14th amendment.

The end result was, since there was insufficient time remaining to conduct a full recount, the results certified by the Florida Secretary of State were sent to the President of the Senate, as provided for in the Constitution. The Florida legislature had the option of voting for the electors representing Florida themselves, but chose not to take it.

The House of Representatives had the option of not accepting the certification of Florida's Secretary of State, or so we were told by the media. Strange, but I don't find any such statement in the Constitution, or in any amendment to the Constitution. In any case, the House did not reject the certification and ultimately the electors chosen by the states in the manner directed by their legislatures chose the President in 2000. The President was elected, not selected.

What about abolishing the Electoral College? That's been proposed several times. It requires a Constitutional amendment to accomplish though, and so far none has succeeded. As I mentioned in the previous post in this series, there's a move afoot to do an end-run around the electoral process by having each state apportion its electors according to the national popular vote.

I think this is a horrible idea. The Constitution does not forbid it though, so it could happen. I think it's a bad idea for essentially the same reason I think the 17th amendment was a bad idea.

The President was not intended to be answerable to the people. The President was intended to be answerable to the states. This is why the founders came up with such an elaborate mechanism for electing a President, and it's also why only the Senate can actually remove the President from office.

Also as I mentioned in the previous post, the founders intended the federal government to govern and defend the states, and the state governments to govern the people. The 17th amendment resulted in a fundamental shift of power away from the states to the federal government. Today's federal government takes upon itself powers that were never granted by the Constitution, and diminishes the powers of the state governments.

This has resulted in a tendency of our government to move further and further away from its republican form and closer and closer to a socialist form of government. Changing how the President is elected and making the President answerable to the people will accelerate that trend. Do we really want to continue to allow the erosion of our liberties?

This post is getting a little long, so I'm going to break it off here. I'll continue discussing the Presidency in part 3.

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