Now the losers of the 2016 election are turning their fire upon the Constitution
writes
John Yoo.
Clinton will win by a slight majority of the vote
nationwide, but will not take the oath in January because of the
Electoral College. Trump won a significant share of the electors, with
more than 300 votes of the 538 at stake.
As they did
after losing George W. Bush’s 2000 election by a majority of the
Electoral College but not the popular vote, Democrats attack the
Constitution’s method for selecting the president as fundamentally
undemocratic.
Former Obama Attorney General
Eric Holder
went on a talk show to demand that the United States elect the
president by simple nationwide majority vote, while failed 1988
Democratic candidate Mike Dukakis declared that the nation should have
thrown out the Electoral College “150 years ago.”
These
liberal officials have a point. The Electoral College is not democratic,
if by democratic they mean rule by simple majority.
… The Electoral College further encourages candidates to
campaign state by state, particularly in the large “battleground” states
that Clinton ultimately lost, such as Florida, Ohio, Pennsylvania,
Michigan, and Wisconsin. If Democrats had their way, candidates would
ignore the states and campaign solely in the population centers that
Clinton easily won, such as New York, Los Angeles, and Chicago.
But
the Electoral College’s exaggeration of the power of the states is not
some bizarre mistake or a constitutional version of the appendix.
The
Framers specifically designed the Electoral College to dilute democracy
and favor the states. Democrats who disagree are at war with the
federalism that the Framers hardwired throughout the Constitution
itself.
They forget that fundamental features of the Constitution are even more anti-democratic than the Electoral College.
… If Democrats oppose the undemocratic nature of the Electoral College, they should seek to uproot other restraints on democracy.
They should start with judicial review, which gives nine
federal judges, appointed for life, the power to strike down
legislation. They could continue with the Bill of Rights, which exists
solely to prevent the majority from infringing on the rights of
individuals, no matter how great the benefit to society. They could
finish with the administrative state, where unelected bureaucrats
exercise most nation regulatory power.
Liberals, of
course, would never oppose these undemocratic aspects of our government,
because they more often than not advance their agenda.
The Electoral College has other positive features, despite its complicated process.
… If Democrats oppose the Electoral College, it only is in
keeping with their broad hostility to the Constitution’s founding of a
republican government, not a democratic one.
They are
also only arguing to benefit themselves now, not to defend principle.
For if they were serious, they should argue that the United States adopt
a parliamentary democracy — indeed, the very goal of Woodrow Wilson,
the intellectual father of progressivism.
In most of our
democratic allies, such as Great Britain, Germany, and Japan, the
majority party in the legislature selects a prime minister, who becomes
head of the executive branch as well. But even under that system,
Hillary Clinton would still have lost, as Republicans have built a huge
majority in the House of Representatives over the last three elections.
Nothing
better shows how liberal attacks on the Electoral College amount to
nothing more than sour grapes and constitutional cherry-picking.
