I rise in reply to radio talkster Hugh Hewitt, an intellectually dishonest pseudo-intellectual, a besotted apologist for all things Trumpian, who decided to use his other (non-radio) platform, as a regular contributor to the Washington Post op-ed page, to stand up for two of the worst and most undemocratic provisions in the U.S. Constitution while attacking Gen. Colin Powell and, of course, defending President Donald Trump.
In his column, Hewitt decided to focus on a passing remark by Powell that Trump has “drifted away” from the Constitution. The full Powell quote in an interview on Jake Tapper’s “State of the Union” program on CNN:
We have a Constitution. And we have to follow that Constitution. And the president has drifted away from it.
Hewitt doesn’t bother trying to understand what Powell (the first African-American ever to hold any of three high government positions, chairman of the Joint Chiefs of Staff, national security adviser and secretary of state, appointed to all three positions by Republican presidents) may have meant about Trump’s “drift” away from the Constitution. As a Constitution nerd myself, I have a few theories.
Instead, Hewitt uses his space to call attention to two of his most beloved constitutional provisions, to which Powell made no reference, which turn out to be two of the least democratic aspects of the Constitution. Hewitt vaguely implies that this has something, anything to do with something, anything Powell said, and, more directly, implying that Democrats are trying to change these features (which, in my opinion, would be fine). Wrote Hewitt:
In truth, the Democrats have embraced a number of anti-constitutional positions. Many among them want to abolish the Electoral College, one of the two load-bearing walls on which the Constitution is built. The other — equal representation in the Senate of every state — is regularly assailed by the left, which dominates the Democratic Party.
This is classic. This is pitiful. This is beautiful. Hewitt identifies two of the most undemocratic features of the Constitution, specifies that in his view they are two of the most important and precious (or whatever “load-bearing” means) keys to our democracy, and derides the laudable desire of some on the left to occasionally seek to mitigate the damage those provisions do in the continuing pursuit of a more perfect union.
The Electoral College
Allow me to address each of them briefly. When the framers of the Constitution came up with the Electoral College system, there were no national parties, no national media, and the norms of the day prohibited anyone who wanted to be president from campaigning for the office. So how would the president be chosen?
Most Americans in 1787-89 knew almost nothing of potential presidents from outside their states (other than George Washington). The idea was that men (all men, of course) of more learning, who were trusted by the people of their states, would have sufficient knowledge of national figures to identify two people who might make a president (in the original Constitution, each elector voted for two men for president, with the requirement that at least one of them not be from the elector’s home state).
If anyone was named on a majority of the ballots (everyone knew the first one would be George Washington, but no one knew what would happen after he left the scene) that person would be president, and the runner-up (not his running-mate; there was no such thing at that time) would be vice president. The first vice president, John Adams, was not Washington’s running mate.
But, in the likely case that, after Washington, no one got a majority of the electoral votes, the names of the top five finishers in the electoral vote would be forwarded to the U.S. House, which would choose a president from among them. This was intended to give the states some input and prevent the House from making an entirely self-serving choice.
That was the plan. That was the hope. You can look it up. I suspect Hewitt knows this, but would rather have you believe that the system as evolved was the one intended by the framers. He would also, presumably, not like to mention that, after the invention of national campaigns, universal suffrage, etc., winning the electoral vote without winning the popular vote has become a Republican specialty, and the last two presidents who pulled it off, George W. Bush in 2000 and Donald Trump in 2016, were both Republicans, and that Trump’s only hope to get a second term depends heavily on again winning the electoral vote while losing the popular vote.
Five times in history, the loser of the popular vote has become president. This is the great “load-bearing” feature that Hewitt seeks to preserve.
Hewitt suggests that the Democratic schemes to which he vaguely alludes, for example the proposed interstate compact under which states would agree to cast their electoral votes in favor of the winner of the national popular vote (which I’ve written about before, for example, here), would allow enough states to comprise an Electoral College majority to agree in advance to appoint electors who supported the popular vote winner, from whichever party, thereby guaranteeing that the winner of the popular vote would become president.
I would favor this somewhat far-fetched sounding idea. I actually know of no very good arguments against it. It’s backed by a bipartisan group. But perhaps it really is the kind of evil Democratic plot to which Hewitt alludes to guarantee that whoever gets the most votes wins the election. Hewitt doesn’t say. He just identifies the current system, which allows the popular vote loser to win, as one of the two ”load-bearing” provisions of the Constitution that Democrats seek to undermine.
The two-senators-per-state provision
The other “load-bearing” wall that Hewitt attacks is the provision of the Constitution is the one that assures every state of two senators, irrespective of how large or small the state’s population.
Hewitt doesn’t waste any effort or words explaining why it is good or fair or democratic that California and Wyoming should have equal power in the Senate, despite the fact that California’s population is more than 60 times larger. It’s kind of a heavy lift to justify that logically or with any reference to such strange principles as one-person-one-vote.
Of course, Hewitt doesn’t suggest that Colin Powell referred to that in any way when Powell said, “We have a Constitution. And we have to follow that Constitution. And the president has drifted away from it.”
And that Constitution is so thoroughly and well-established – in fact it is roughly impossible to change – that although some people occasionally talk about it (Hewitt links to one such plan that would take you there), changing the Constitution would be a much, much bigger lift than even the National Popular Vote scheme, which would not require a constitutional amendment.
This feature (two senators per state) is clearly embedded in the Constitution; presumably, changing it would require a constitutional amendment, which would require a two-thirds vote in both houses of Congress and ratification by three-fourths of the states (including dozens of states that would be voluntarily reducing their power as result). But I’ll tell you one more, obscure but hilarious in my view, reason why it won’t happen. (This is one of the most amusing bits of my knowledge of obscure Constitutional trivia.)
The Constitution itself, in the very short Article V which lays out how to amend the Constitution — the very last words of the original document ratified in 1789 — says there is one feature of the Constitution that can never changed, even by amendment, It reads:
“No State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
It’s the only thing in the Constitution that the Constitution says can never be changed. I’m not kidding. Look it up. (But then come back to here to see why I bring it up.)
Yes, the provision is perhaps the least democratic provision in the whole Constitution, since it places just that one undemocratic provision beyond the reach of future generations to change. So why is it in there?
The framers knew that their draft Constitution was useless unless all the states joined. And the small-population states would have a strong incentive to spurn a system that would make it too easy for the big states to run roughshod over them.
The all-states-have-equal-power-in-the-Senate provision was the sop to overcome that fear. And it was apparently necessary to reassure those small states that it could never be changed (unless you can think of some reason why some state would voluntarily give up its equal vote in the Senate.) I almost guarantee you that if you use this as a trivia question — what’s the only provision in the Constitution that the Constitution specifies can’t be amended? — very few of your smarty pants friends will get it.
Hugh Hewitt didn’t mention it. He also didn’t pretend that Colin Powell (who gets lost in Hewitt’s piece pretty fast after the flashy top) favors screwing around with equal votes for all states in the Senate. But he somehow threw it in there as part of a flabby reference to the idea that “the left” which “dominates the Democratic Party,” “regularly assails” the sacred provision. It’s a pretty undemocratic provision. I wish it were more regularly assailed. But it’s both part of our national religion and the only constitutional provision that can never be amended.
I don’t know if Hugh Hewitt knows this trivia about the only provision that can’t be amended. He went to Harvard, has a law degree, and even holds a tenured faculty position as a Constitution expert at Chapman Law School. Maybe he’s enough of a geek (like me) to actually know that last bit of trivia. But mentioning it would have gotten in the way of his diatribe about the evil plot to undermine the two load-bearing features of the Constitution. Howl on, Hugh.