The Real History of the Electoral College

It would take an act of enormous historical illiteracy to end my blogging hiatus. Congratulations are thus in order to the New York Times for providing me with such an example. In an editorial Jay Caruso has accurately labeled “historically inaccurate garbage,” the Times has called for the abolition of the electoral college. In the process of doing so, the Times’ editors reveal an understanding of American history which calls into question whether they’ve even taken high school-level American history classes.

The Electoral College, which is written into the Constitution, is more than just a vestige of the founding era; it is a living symbol of America’s original sin. When slavery was the law of the land, a direct popular vote would have disadvantaged the Southern states, with their large disenfranchised populations. Counting those men and women as three-fifths of a white person, as the Constitution originally did, gave the slave states more electoral votes.

Let’s address the slavery as the reason behind the electoral college argument. The New York Times links to a Time magazine article written by Akhil Reed Amar in which Amar attributes the electoral college’s existence to the advocacy of the slave states. He begins:

Some claim that the founding fathers chose the Electoral College over direct election in order to balance the interests of high-population and low-population states. But the deepest political divisions in America have always run not between big and small states, but between the north and the south, and between the coasts and the interior.

Some “claim” this because, well, it happens to be true. The divide at the constitutional convention was not between slave states and non-slave states,* but rather between large and small states. Remember, the convention kicked off with a presentation of the Virginia plan. This plan, authored in large part by James Madison but presented by Edmund Randolph, set the framework for much of the debate at the convention. Among other things, the plan proposed a bicameral legislature with representation in both houses based on population. The smaller states objected to it, and put forward their own plan. The New Jersey plan called for each state to have an equal voice in the legislature, a la the Articles of Confederation.

* As Caruso correctly notes, at the time of the convention, only a handful of states had even partially abolished slavery, and only Massachusetts had totally abolished it. That’s not to say that New York and South Carolina were equally vested in the continued propagation of the institution, but in 1787 the north-south divide on this issue was not nearly as intense as it would become in future years.

When it came to the large-small divide, there was a mixture of states. The large states included Massachusetts, Virginia, and Pennsylvania – in other words a mix of predominant slaveholding states and anti-slavery states. The small states included Connecticut, Delaware, New Jersey and Georgia – again, a mix of states with different views on slavery. Thus feelings about slavery had little to do with these respective coalitions. So already Amar is off to a poor start in actually grasping the nuances in early American history. But he’s not done.

One Founding-era argument for the Electoral College stemmed from the fact that ordinary Americans across a vast continent would lack sufficient information to choose directly and intelligently among leading presidential candidates.

This objection rang true in the 1780s, when life was far more local. But the early emergence of national presidential parties rendered the objection obsolete by linking presidential candidates to slates of local candidates and national platforms, which explained to voters who stood for what.

Even if one objects to the notion that political parties made this argument obsolete (they didn’t), it’s a bit anachronism to bring this into the debate over the electoral college, since parties didn’t actually exist at the time of the convention, and several of the Framers had rather deeply set feelings against parties (even if they would eventually spearhead the formation of those parties). So dismissing this objection when the reason for its supposed nullification didn’t yet exist is non-sensical.

Although the Philadelphia framers did not anticipate the rise of a system of national presidential parties, the 12th Amendment—proposed in 1803 and ratified a year later— was framed with such a party system in mind, in the aftermath of the election of 1800-01. In that election, two rudimentary presidential parties—Federalists led by John Adams and Republicans led by Thomas Jefferson—took shape and squared off. Jefferson ultimately prevailed, but only after an extended crisis triggered by several glitches in the Framers’ electoral machinery. In particular, Republican electors had no formal way to designate that they wanted Jefferson for president and Aaron Burr for vice president rather than vice versa. Some politicians then tried to exploit the resulting confusion.

Enter the 12th Amendment, which allowed each party to designate one candidate for president and a separate candidate for vice president. The amendment’s modifications of the electoral process transformed the Framers’ framework, enabling future presidential elections to be openly populist and partisan affairs featuring two competing tickets. It is the 12th Amendment’s Electoral College system, not the Philadelphia Framers’, that remains in place today. If the general citizenry’s lack of knowledge had been the real reason for the Electoral College, this problem was largely solved by 1800. So why wasn’t the entire Electoral College contraption scrapped at that point?

The 12th Amendment merely more carefully delineated the presidential and vice presidential election process. It did not amend the electoral college, nor did it necesssarily eliminate the basic need for the electoral college. But Amar knows the real reason the college wasn’t changed: demon slavery.

Standard civics-class accounts of the Electoral College rarely mention the real demon dooming direct national election in 1787 and 1803: slavery.

This sneering dismissal is ironic, as, if anything, slavery’s role in the formation of the constitution is over-estimated. But don’t worry, Amar has a tool at his disposal that most mere mortals who only have taken standard civics classes don’t: google. So Amar no doubt entered into his search “constitutional convention electoral college slavery” and came back with literally the only result that would have populated – a speech given by James Madison in July of 1787 during the convention.

At the Philadelphia convention, the visionary Pennsylvanian James Wilson proposed direct national election of the president. But the savvy Virginian James Madison responded that such a system would prove unacceptable to the South: “The right of suffrage was much more diffusive [i.e., extensive] in the Northern than the Southern States; and the latter could have no influence in the election on the score of Negroes.” In other words, in a direct election system, the North would outnumber the South, whose many slaves (more than half a million in all) of course could not vote. But the Electoral College—a prototype of which Madison proposed in this same speech—instead let each southern state count its slaves, albeit with a two-fifths discount, in computing its share of the overall count.

As I said, this is literally the only time during the entire convention that slavery came up in the context of the election of the executive. Unfortunately for Amar, an actual reading of the entire convention debate outside of this one quote proves that his magic bullet is not so magical.

First of all, some context is in order. Throughout much of the early part of the convention it was assumed the executive would be chosen by the legislature. It wasn’t until about the second part of the convention that the debate really kicked in over the method of selecting an executive.

There were a couple of intertwined debates. Some argued that if the executive were to be selected by the legislature, then he should not be eligible to serve more than one term. If eligible to serve more than one term, then the executive would be beholden to the legislature, and would therefore not be an independent force.

Amar is correct in pointing out that Wilson advocated a popular selection of the president, and his fellow statesman Gouverneur Morris also advocated for a selection independent of the legislature. Many other delegates – both from small and large states, as well as anti-slavery and slaveholding states – scoffed at the idea of any popular participation in the selection of the executive. Elbridge Gerry of Massachusetts insisted on more than one occasion that the general mass of the population were ill-educated and would be easily duped, and as such should have no say in the selection of the executive.

As the debate continued over several days, it was clear that the dividing line was not between slave states and non-slave states, or even large and small states (though that certainly was a part of it), but rather between individuals who had a more populist bent and those whose inclinations were more, shall we say, aristocratic. The debate was in large part a reflection of the general feeling that the mass of citizens did not have the proper qualifications and knowledge to make such a crucial decision. Even those who did not think it proper for the legislature to choose the executive did not openly advocate a popular election.

Enter James Madison. It’s odd, though understandable, that Amar focuses on Madison, as at the time he delivered his speech at the convention cited here he was closer to Wilson than most of the other delegates. The bulk of his speech was actually dedicated to expressing his opposition to the legislative method of choosing the executive. In point of fact, Madison expressed his preference for a popular vote, a preference he repeated at another point in September when the convention made its final determinations. What Amar is quoting is a small section of Madison’s address where he concedes the potential drawbacks to a popular vote. Contrary to Amar’s implication, Madison’s concern was not with how the southern states would be disadvantaged by slavery, but rather the more restrictive franchise requirements that existed in the south. Madison’s argument was that more people would be eligible to vote in the north, irrespective of slavery, thus furthering the imbalance. Madison repeated this point in September, with absolutely no mention of slavery.

Therefore the one and only convention speech Amar points to as proof of his thesis actually contradicts it, at least when read in its entirety.

And that is the entirety of Amar’s argument – this one speech, and the fact that a whole bunch of Virginians were elected president. Nevermind that those Virginians included the man who led our country to independence, the author of the Declaration of Independence, and one of the primary authors of the Constitution and the Bill of Rights. No, it’s all about slavery.

There were literally dozens and dozens of speeches made at the constitutional convention regarding the election of the executive, and one of them contained a passing reference to slavery. Yet Amar, and in turn the New York Times, uses this as justification for contending that the electoral college is completely about defending slave interests. Even if one counters that the framers were too wily to openly state their true intentions, a careful reading of the entirety of the debates shows that the delegates were motivated by completely different factors.

And of course there is one of the most elegant defenses of the electoral college ever made – Federalist 68. In it the author celebrated the electoral college for giving the people a voice in the selection of the president while providing an intermediate body of electors whose judgement would presumably be more discerning. As the author states, it’s all about preserving an orderly process:

It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the President of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief. The choice of several, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements, than the choice of one who was himself to be the final object of the public wishes. And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place.

Now who was the author of this celebrated piece? Why, none other than the bastard, son of a whore and a Scotsman. Yes, the immigrant, New Yorker, and ardent slavery opponent Alexander Hamilton. Somehow I don’t think he viewed the electoral college as a vestige of slavery. But what did he know?

Amar tries to move the goalposts by arguing that even if the electoral college at inception wasn’t about slavery, later events (which, by the way, he completely exaggerates while relying on dubious methodolgies to determine who really should have won the election of 1800) made it about slavery. Now, it’s curious that the institution which made Abraham Lincoln’s ascendancy to the presidency possible should retroactively be seen as a gatekeeper for the peculiar institution, but so be it.

Now let’s get back to the Times. The editors throw in a whole bunch of other familiar arguments about the folly of the electoral college and its unfairness. Since this is strictly an historical post I won’t get into all that, so I’ll let you read the rest of Jay Caruso’s post. I’ll just note that throwing in the slavery non sequitur is nothing more than an attempt to gloss over the weakness of the Times’s overall argument. By continually parotting the historically inaccurate line that the electoral college is all about protecting slavery – an argument repeated by equally historical illiterate leftists on twitter and other platforms – we are supposed to throw away this “ancient” and “outdated” mode of election. Unfortunately these arguments do nothing more than to reveal that those making them don’t even have the first clue about American history and the debates surrounding the constitution, thus making anything else they have to offer of dubious merit.

At the very least we can take confort in the knowledge that people like Akhil Reed Amar have little influence outside the barely-read pages of Time.

Akhil Reed Amar teaches constitutional law at Yale University. This essay borrows from his recently published book, The Constitution Today.

 To quote Dr. Hibbert, upon learning that Homer is working at a nuclear power plant: Oh Good Lord. Although this picture might be more appropriate.

The American Project

Really good read over at NRO from last week by Peter Lawler on teaching American government. I was particularly taken by the way he explained the divergence between two very different strains of American political thought.

There were the original settlements — one in Virginia and one in New England. And ever since that time, you’ve had two conflicting impulses in American political life. The Virginians are all about liberty, as in Mr. Jefferson’s Declaration of Independence. And the New Englanders — the Puritans or the Pilgrims — are all about participatory civic equality through the interdependence of the spirit of religion and the spirit of liberty.

. . . The Puritans, in general, tend to be too moralistically intrusive, to turn every sin into a crime. They’re an important source of our history of taking sexual morality very seriously, and for believing that American liberty depends on Americans sharing a common religious morality. They’re also the source of some of our most ridiculous and meddlesome legislation, such as prohibition (and, in some indirect way, Mayor Bloomberg’s legal assault on our liberty to drink giant sodas in movie theaters).

On the other hand, the individualism of American liberty sometimes morphs in the direction of cold indifference to the struggles of our fellow citizens. Mr. Jefferson spoke nobly against the injustice of slavery as a violation of our rights as free men and women. But he wasn’t ever moved to do much about it. And today members of our “cognitive elite” are amazingly out of touch with those not of their kind, living in a complacent bubble.

Forrest McDonald writes about this Virginia-New England divide in Novus Ordo Seclourum, and it’s as good a way to frame the ideological divide in our early republic as any.

I also link to it because it is the perfect way for me to finally segue into the series I have hoped to begin ever since I restarted this blog.

What shattered my complete apathy over American politics, other than the musical Hamilton, was the realization that this American project  was too important to just give up on. While there were any dozens of different directions I could have gone in, my main desire was to not just explain but defend the ideals of our founding, of the constitution, and of American conservatism.

Too often it seems we’re content to vaguely state how a certain policy, way of thinking, etc. is against the ideals of our founding. We talk about defending our constitution without explaining why the constitution is worth defending. The mere fact of its long existence does not suffice as a justification for its merits as a governing document.

So for the next months most of my posts will be on this American Project series (until I come up with a better name for it). Said posts will have the American Project tag. I might blog about other issues as they come up, but that will be the main focus.

It might seem like a fruitless endeavor, and I may very well be whistling pass the graveyard. But I’m not going to throw away my shot to help salvage what is left of American constitutional conservatism, in the hopes that there is still enough of a movement to preserve it and our republic.

American Conservatism, Part Four

While on vacation, I’m reposting a series on American conservatism I wrote a while back. Here is part four.

I am sure I have linked to this piece by Jonah Goldberg before, but it serves as an excellent companion to this series of posts.  And as we move onto the main topic at hand, that is, what is American conservatism, the following paragraph is a useful jumping off point.

As I’ve written many times here, part of the problem is that a conservative in America is a liberal in the classical sense — because the institutions conservatives seek to preserve are liberal institutions. This is why Hayek explicitly exempted American conservatism from his essay “Why I am Not a Conservative.” The conservatives he disliked were mostly continental thinkers who liked the marriage of Church and State, hereditary aristocracies, overly clever cheese, and the rest. The conservatives he liked were Burke, the American founders, Locke et al.

Context is everything, and if we are ever to achieve anything resembling a clear definition of American conservatism, we must first come to a deeper appreciation of the historical American conservatism.
In the previous post I discussed France and its own unique cultural heritage.  In a sense, both the American conservative and the French conservative are seeking to preserve the legacy of a late 18th century “revolution.”  But the French conservative seeks to preserve the legacy of an étatist, interventionist tradition born in a true social revolution.  The American conservative, on the other hand, hopes to maintain the inheritance of what was a less obvious social revolution.  In fact, the American revolutionaries were quite distinct in their own respect.  They did not seek to upend the social order, as did the Jacobins and their friends.  Rather they sought to preserve the long-established rights of Englishmen that dated back to the Magna Carta.  It was a true conservative revolution – a revolution fought to preserve.

Of course we are in danger of going too far with this analogy.  It is not without reason that Forrest McDonald wrote a tome titled Novus Ordo Seclorum.  The American revolutionaries were radicals in their own regard, and they created a truly unique form of government.  And yet they were guided by what most today would recognize as a conservative understanding of government and its potential.  They produced a Constitution that, while groundbreaking in its democratic features, was a model of restraint.

Certain critics of the constitutional interpretation known as originalism contend that is nothing more than a naked attempt to achieve conservative political ends.  This contention is not without merit for, as Russell Kirk rightly stated decades ago, the Constitution is a conservative document.  Any reading of the Federalist papers, the constitutional debates, or the document itself demonstrates the truth of this statement.

Our nation was born in fear.  The anti-Federalist feared an active government, and that is why they opposed the Constitution.  The Federalists feared both government and the masses, and that is why they constructed a Constitution that tempered both.  Order was needed, and the Federalists felt the need to revise the Articles of Confederation to shore up the powers of the national government so as to institute this new order.  Though they recognized the need to maintain democratic institutions, and though they were no fans of unlimited governmental authority, government placed squarely in the hands of the people was a fundamental threat to civic order.

In the 51st Federalist paper, Madison wrote: In all very numerous assemblies, of whatever characters composed, passion never fails to wrest the scepter from reason.  Had every Athenian citizen been a Socrates; every Athenian assembly would still have been a mob. This demonstrates that the Framers (well, at least Madison) realized that even the most enlightened citizenry could turn into a dangerous mob with the potential to tyrannize the rights of the minority.  Passions of the moment had to be quelled, and the framers were intent on devising a system that as much as possible protected liberty, allowed for some deal of sovereignty in the hands of the people, and produced order.

The Antifederalists feared government, while the Federalists feared the people.
This is perhaps a broad generalization, but it succinctly summarizes the fundamental difference between the two factions fighting for the heart of the American republic in the 1780’s.  Both sides, motivated by fear of tyranny of one sort or the other, argued that the other party’s political theory would result in turmoil, chaos, and ultimately degradation.  Each side wrote invectives against the other, warning the masses that their liberty was at stake in this political fight.  The Antifederalists believed that the Federalists were plotting to consolidate the Union, eliminating states’ rights, and thereby threatening the very liberty that the patriots of 1776 had valiantly fought to secure.  The Federalists, on the other hand, saw a nation imperiled by a weak system of government under the Articles of Confederation, and predicted the demise of the union unless the national government was strengthened.  The Antifederalists worried that government under Federalist control would be too strong, while the Federalists were concerned that a tyranny of the masses was developing, casting a shadow of anarchy over the United States.

Our Conservative Constitution     
Madison was especially concerned about faction, and the best answer to faction was an extended republic which contained a multiplicity of interests.  A pure democracy, on the other hand, cannot answer this challenge, because in a pure democracy factions will control.  “A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert results from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party.”  Such a state of affairs was “incompatible with personal security.”  But in an extended republic, the people will be guarded by the filter of the natural aristocracy.  Wiser and more judicious representatives will emerge from the great mass of people.  Because there will be many more electors in such a republic, it will be more likely that abler representatives will take the lead, and as such they will temper the passions of the moment.  Enlightened statesmen will not always be at the helm, but at least there will be enough of a number of them to create some sense of balance.

This extraconstitutional method was one way of curing the ills of faction.  But the government itself had to be set up in such a way as to ensure that the branches of government would not be driven by faction, and the answer to this was bicameralism, separation of powers, and checks and balances.  Federalist 51, also written by Madison, is a part two of sorts to Federalist 10.  Here, it is the competing interests of society that will mitigate the deleterious effects of faction.  “Ambition must be made to counteract ambition.”  The members of the various branches should be independent of one another, thereby eliminating the chance of centralization of powers.

What is curious about this document is that Madison takes the notion of the self-interested nature of man and turns it on his head.  Instead of having a harmful influence, man’s self-interested nature will be used to limit government’s ability to usurp individual rights.  The multiplicity of interests will keep a majority faction from forming.  Madison writes that this is merely a reflection of reality, and that this system will be the best way to ensure domestic tranquility

But what is government itself but the greatest of all reflections on human nature?  If men were angels, no government would be necessary.  If angels were to govern men, neither external nor internal controls on government would be necessary.  In framing a government which is to be administered by men over men, the great difficulty lies in this:  You must first enable the government to controul the governed; and in the next place, oblige it to controul itself.  A dependence on the people is no doubt the primary controul on government, but experience has taught mankind the necessity of auxiliary precautions.

This is a profound statement that demonstrates much about Federalist thought.  Man is imperfect; we are not angels.  As such it is necessary to form a government based on this reality.  It must be a government carefully balanced, one with great limits.  The people are to be a check on the government, but government, too, must be a check on both itself and the governed.  In short, all parts of society must be on guard against one another, and because man is primarily concerned about his own concerns, he will zealously guard his liberty and his rights and make sure that none usurps those rights.  Action will thus be limited because it will be greatly difficult to form majorities in so extended a republic.
The argument for simple, small republics has thus been refuted by Madison.  They, not large, extended republics, are a greater threat to liberty, for it will be much easier for factions to form in small territories.  America, as a compound republic, then provides a double guarantee of liberty.  “Hence a double security arises to the rights of the people.  The different governments will controul each other; at the same time that each will be controuled by itself.”  It is clear from such language that the framers were almost agonizingly cautious, and fervently wished to create a system that had a variety of breaks to halt the potential avalanche of legislation that could only make our rights less tenable.
Madison and his fellow Federalists are quite suspicious of the masses, and took great pains to allow for as little popular control as possible.  Though they would agree that the consent of the people was ultimately necessary to assure legitimacy of the polity, and that institutions such as hereditary monarchy were a great potential source of despotism, they were also weary of leaving power completely in the hands of the people. Liberty is threatened by a democratic legislature, “where a multitude of people exercise in person the legislative functions, and are continually exposed by their incapacity for regular deliberation and concerted measures, to the ambitious intrigues of their executive magistrates.”

Even the legislative branch itself must be separated as a further guarantor of liberty.  The legislative branch of government could easily be swept up by the passions of the day and thereby pass laws that usurp individual rights.  But the Senate, as a second part of the legislature, divided power with the House of Representatives, and “must be in all cases a salutary check on government.  It doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation and perfidy, where the ambition or corruption of one, would otherwise be sufficient.”  Power has been broken up to an even greater degree than before, and another barrier has been erected to guard against despotism.

Interestingly, the Senate, because of its aristocratic tendencies, will be a champion of liberty, a complete refutation of Antifederalist thought.  It is a necessary check on the passions of the people, a more efficient check on the popularly elected House of Representatives.  “The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions.”  The Senate, as a independent and firm body, will be a more temperate institution guided by sincere deliberation and dispassionate discourse.

The Electoral College was another development created to some extent by fear.  It was designed so as to avoid “tumult and disorder.” Hamilton writes in Federalist 68 that the “choice of several to form an intermediate body of electors, will be much less apt to convulse the community, with any extraordinary or violent movements, than the choice of one who has himself to be the final object of the public wishes.”  Thus there is to be a sense of detachment in the election of the chief executive.  This unique body, the Electoral College, would be a barrier between the people and the president.  It is a design to ensure that a demagogue or potential tyrant will not emerge and capture the presidency.  The enlightened Electoral College will guard against this potentiality.  Once again the possibility that the passions of the people will cause tumult has been thwarted.

These are just some features of our conservative constitution.  But these are just the thoughts of stiff-necked reactionaries.  What would they know that Howard Dean or Nancy Pelosi have failed to discover about human nature?

Revamping the Court

Once again a tweet has inspired a blog post. This time it’s Andrew McCarthy:

SupCt argument for #Trump not doing it for me anymore. SupCt a super-legislature & conservatives should work to undo its role in our system.

— Andrew C. McCarthy (@AndrewCMcCarthy) July 24, 2016

McCarthy is spot on. Even assuming we can trust Donald Trump to appoint originalists to the bench – and I for one have strong doubts –  the entire judiciary is too far gone for those appointments to mean much of anything.

One of our major failings in looking at the political landscape is we tend to only think of the big ticket items. In other words, we spend a lot of time discussing the presidency (and I’m no less guilty) but not much on the tons of other elected positions in this country. Similarly, when we think of the courts, we only think of the Supreme Court. But there are a number of inferior federal courts, and presidents have to make numerous appointments, not just one or two Supreme Court appointments.

These inferior courts can and usually do act like super legislatures as much, if not more than the Supreme Court (think the Ninth Circus, err, Circuit). Considering how few cases the Supreme Court takes each year, these courts regularly make decisions that are as impactful as any the Supremes hand down.

Daniel Horowitz has written about this in his book Stolen Sovereignty: How to Stop Unelected Judges from Transforming America. Horowitz’s main subject is illegal immigration, and he goes over in painstaking detail the numerous court decisions – primarily at the lower level – that have disregarded both the legislative will and the plain meaning of the constitution in order to give rights to illegal immigrants and to prevent methods of deporting or punishing them.

This applies to all subject matters, however, and Horowitz believes that we have reached a point where we can no longer think that appointing the right judges will fix anything. He notes the number of Reagan, Bush I, and Bush II appointments who have been just as eager as any Carter, Clinton, or Obama appointment to ignore the plain meaning of the constitution in order to promote their own policy preferences. Even setting these aside, President Obama has appointed roughly one-third of sitting circuit and appellate judges, and it will take years to unseat these.

He digs through history and chronicles the slow evolution of how the courts have undermined our nation’s sovereignty through these decisions, slowly transforming our country in the process. The judiciary has well exceeded its constitutional mandate, basically making a fool of Alexander Hamilton and his boast that it would be the least dangerous branch.

Horowitz does not mince words, and he calls for a strict curtailment of the subject matter over which the judiciary has oversight. Essentially it would be stripped of much of its jurisdiction and could only rule over a narrow set of issues. Alternatively, the courts could be required to have super-majorities in order to declare state or federal acts unconstitutional.

This will no doubt be seen as a bridge too far by some, but I think Horowitz has provided some interesting fodder for discussion. It is an unavoidable fact that the federal judiciary has become a monster, and in effect has become a super-legislature. This is well beyond what the Framers intended, and frankly all chips must be on the table in considering what the remedies are.

Getting back to McCarthy’s tweet, some of the comments are quite revealing. This is all a pipe dream, according to many. Perhaps. But that’s beside the point – or rather, it IS the point. We can’t continue on this path where we pretend getting to nominate a few judges is going to make a difference. The problem is much more endemic, and if we lack the will to address this runaway judiciary, then everything else we discuss is what’s beside the point.