The Birth of a Nation

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On a clear and cool November morning, while accompanying my dog on our daily circuit of his considerable territory in this southern California suburb, I passed a house that had a flag hung above the garage door. It was at an angle, so I couldn’t see it very well, but then I got it: the Bear Flag, the official flag of California, which features a golden grizzly bear walking toward the left and, below the bear, the words “California Republic.” While it’s not unusual in this neighborhood to see the occasional American flag on display, this was the first time I’d seen the state flag being flown from a private residence, and it seemed odd.

What, I thought, is up with that?

* * *

Nestled snugly in the heart of Europe is 999 square miles of tidy, prosperous greenery called the Grand Duchy of Luxembourg. Surrounded by France, Belgium, and Germany, Luxembourg is a member of the European Parliament, where it enjoys the benefits of what mathematicians call degressive proportionality.

When considering the prospect of joining the EU, Luxembourgers had to face the possibility that their happy little land might just be swallowed whole.

In practical terms, this means that Luxembourg’s 540,000 or so people get six seats in the European Parliament, while the 80,000,000 or so Germans get 96. To be clear, that is roughly one seat for every 90,000 Luxembourgers and one for every 830,000 Germans. That’s right, each Luxembourger counts as more than nine Germans.

Why do the Germans put up with this? The unsurprising answer is self-interest.

When considering the prospect of joining the European Union, Luxembourgers had to face the possibility that their happy little land might just be swallowed whole. After all, any country that joins the EU, no matter how large, surrenders a hefty portion of its sovereignty and, given the Union’s immigration policies, invites substantial changes to its national culture and identity. For a small country like Luxembourg, joining up could mean disappearing down the maw of a supra-national leviathan forever, to put it colorfully.

If there were a strictly proportional European Parliament of 1,000 members, Luxembourg would get only one voice in the massive hall. This nightmarish scenario is probably what prompted the Duchy to ask for a few extra seats before they joined.

Although being in the EU is not without its costs, on balance, Germany benefits. It enjoys a tariff-free, nearly frictionless market of more than half a billion souls eager to buy German goods, a leading role in an effective collective counterweight to the power wielded by Russia, China, and the United States, and, after centuries of war and strife, relative peace and interdependent prosperity for an entire continent. A little degressive proportionality in the allotment of seats in the European Parliament must have seemed a trifle to pay for these considerable benefits.

And so, the compromise was made. Today, with something like 0.1% of the European Union population, Luxembourg gets 0.8% of the members of the European Parliament. It’s a pretty good deal, for Germans and Luxembourgers alike.

This nightmarish scenario is probably what prompted the Duchy to ask for a few extra seats before they joined.

Had the large countries not agreed to the compromise, the smaller countries probably would have stayed out, and the European Union as we know it would never have even been born.

* * *

The United States had arrived at a similar end by different means. By 1786, it was generally agreed that the Articles of Confederation, which gave equal weight to each state regardless of population, were not working well, so a federal convention was called to consider changes. The opening gavel came down in 1787 and the meeting soon morphed into the Constitutional Convention. The single most divisive issue was how to apportion power among the states. Things got a little heated.

On June 30, 1787, Gunning Bedford Jr., representing Delaware, made it clear that the less populous states were not going to be bullied into accepting strictly proportional representation in the central government, saying,

Will it be said that an inequality of power will not result from an inequality of votes. Give the opportunity, and ambition will not fail to abuse it. The whole History of mankind proves it . . . The Large States dare not dissolve the Confederation. If they do the small ones will find some foreign ally of more honor and good faith, who will take them by the hand and do them justice.

When things cooled down a bit, Mr. Bedford clarified that he was not making a threat. In this context, the threat that he was not making might have been something like inviting, say, the redcoats to help Delaware defend itself against, say, Pennsylvania. The notes of the Convention for that day are here.

Mr. Bedford’s speech marked a turning point in the deliberations. The large states gave up the demand for strict proportionality and moved in the direction of a series of compromises that incorporated the views of the less populous states in the draft of the Constitution that was presented to the states for ratification.

* * *

Let us imagine two friends, John, from Delaware, and Paul, from Massachusetts, discussing these compromises in 1787.

John: I fear that Delaware’s interests would be brushed aside by the more populous States if it were to join this Union.

When things cooled down a bit, Mr. Gunning Bedford Jr. clarified that he was not making a threat.

Paul: There are provisions in the proposed Constitution that prevent the interests of the small States from being ignored or their powers from being unjustly encroached upon.

John: Such as?

Paul: To begin with, the legislature has been divided into two chambers: the House of Representatives, in which the States are allotted seats in proportion to their populations, and the Senate, in which each State is allotted two seats, regardless of population. Any law must be passed by a majority vote of both bodies, or, if the President refuses to sign, by a two-thirds vote of both bodies.

John: Are the two equal in other respects?

Paul: Not quite. Any proposal dealing with taxation and expenditures must originate in the House, though the Senate must still concur for it to become law. The Senate alone, however, votes to confirm the appointments that the President makes to the Supreme Court and, while the President may negotiate a treaty, two-thirds of the Senators must agree with it before it can be ratified.

John: These provisions certainly give the small States more say than their numbers alone would warrant, not only in the legislative branch, but also in the judicial branch, and in foreign affairs as well. The role of the President, however, seems crucial in this Constitution. Is the President to be elected by popular vote?

In all likelihood, if the large states had not agreed to these compromises, the small states would not have ratified the Constitution.

Paul: No. Each state is to choose Electors, equal in number to that of its Representatives and Senators combined. Those Electors will then meet in their respective States and vote for a President. The candidate who wins the majority of the Electors’ votes becomes the President.

John: So, because each state will be granted an Elector for each Senator, the less populous states will have a disproportionate say in who becomes the President?

Paul: Exactly.

John: All these provisions are reassuring, but what is to prevent the more populous States from simply changing the rules once this new government is formed?

Paul: The rules for amending the Constitution are a part of the document itself. There are two methods. Under the first, two-thirds of both the House and the Senate must agree to any proposed amendment; then, three-quarters of all the State legislatures must agree, by a majority vote in each, to that proposed amendment. Under the second method, Congress must call for an amending convention when asked to do so by two-thirds of the State legislatures. Then conventions in three-quarters of the States would have to agree to the proposed amendment for it to take effect. .

John: So, a significant number of the representatives of the less populous States would have to vote twice, using either method, to change the very rules that gave them a disproportionate say in the affairs of the country in the first place?

Paul: Just so.

John: Could the Supreme Court change these provisions and impose proportional representation?

Paul: Should Justices of the Supreme Court attempt such a direct misinterpretation of the proposed Constitution, they would certainly be impeached. The proposed Constitution stipulates that, in the event that a simple majority of the House votes for impeachment, the Senate can, with a two-thirds majority vote, remove a Supreme Court Justice from the bench. Besides, the Justices are to be appointed by the President and confirmed by the Senate, both of which would be selected under these very provisions. The likelihood that a majority of the justices so selected would share such a fundamental disagreement with these provisions is remote.

Each Wyomingite counts as more than three Californians, not only in the Congress, but in presidential elections as well.

John: I am persuaded. I shall support ratification. But I must ask: why would you want to ratify a Constitution that grants less power to Massachusetts than its relatively large population would otherwise seem to warrant?

Paul: Oh, I don’t know — to establish justice, I guess. To insure domestic tranquility and provide for the common defense, something like that. And being united would really promote the general welfare, don’t you think? And maybe even secure the blessings of liberty, that kind of thing.

John: All of which would benefit Delaware as well.

Paul: Indeed.

In all likelihood, if the large states had not agreed to these compromises, the small states would not have ratified the Constitution and the United States of America as we know it today would never have been born.

* * *

If you want to understand the modern consequences of the American version of degressive proportionality that Paul and John discussed, Wyoming is a good place to start. This large, landlocked rectangle perched on the arid high plains and mountains of the American West is sometimes called the Cowboy State. Its official sport is the rodeo.

Wyoming’s roughly 600,000 people have three members of Congress, one in the House and two in the Senate, while the 39,000,000 or so Californians have 55 members of Congress, 53 in the House and two in the Senate. So there is one member of Congress for every 200,000 Wyomingites, while there is one for every 700,000 Californians. Yes, each Wyomingite counts as more than three Californians, not only in the Congress, but in presidential elections as well. Remember those Electors?

Why do the Californians put up with this? Well, they may not.

* * *

It is often pointed out that in the presidential election of 2016, Hillary Clinton won the popular vote, while Donald Trump merely won the electoral vote and the presidency. While the results in overrepresented states such as Wyoming account for Trump’s electoral victory, to understand Clinton’s popular vote triumph you need only look at one state: California.

On December 8, the California Secretary of State reported that state’s votes as Clinton, 8,753,788, and Trump, 4,483,810, giving Clinton 4,269,978 more votes than Trump in California alone. Let me repeat that: alone.

If you leave California’s votes out of the tally, Trump won 1,436,758 more votes nationally than Clinton.

On December 16, 2016, CNN reported the national popular vote totals as Clinton, 65,788,583, and Trump, 62, 955,363, giving Clinton 2,833,220 more votes than Trump nationally.

According to these figures, Clinton won the popular vote in California by 1,436,758 more votes than those by which she won in the country as a whole. To put this in another way, if you leave California’s votes out of the tally, Trump won 1,436,758 more votes nationally than Clinton.

Yes, you read that right.

It may have been at the exact moment when these results were released that degressive proportionality became something up with which some Californians would no longer, to paraphrase Churchill, put. They realized for the first time that they did not really care for this Electoral College at all.

Which brings us back to the flag.

* * *

On June 14, 1846, a scruffy band of what might be called illegal American immigrants in Sonoma, California, then part of Mexico, frustrated by what they saw as unjust treatment at the hands California Governor José Castro, seized the commandante of the town, retired Mexican General Mariano Vallejo, and declared that California would henceforth be an independent country.

One of the rebels fashioned a primitive flag featuring a leftward walking bear, below which, in bold Roman letters, he wrote the name CALIFORNIA REPUBLIC. The banner was raised over the barracks in Sonoma, the makeshift headquarters of the Republic. And thus was brought forth upon this continent a new nation.

Yes California has expedited its efforts to make California independent again because the election of Mr. Trump has generated such enthusiasm for secession.

Less than a month later, the 150 or so men in the new country’s army were absorbed into the US Army, the Bear Flag was lowered, the Stars and Stripes were raised, and with that, the Bear Flag Revolt was over. Unbeknownst to the rebels, the United States had been at war with Mexico since May. At the war’s end, Mexico ceded California to the United States. A few years later, in 1850, without ever becoming a territory, California became a state.

* * *

On November 11, 2016, Marcus Evans, Vice President of the Yes California Independence Campaign, delivered a letter to the Office of the Attorney General of the State of California. The LA Times article about this is here. The letter asked that the appropriate preparations be made for an initiative that, if successful, would put before the voters a measure that, if successful, would begin the formal process of the secession of California from the United States of America. As the article makes clear, Yes California has expedited its efforts to make California independent again because the election of Mr. Trump has generated such enthusiasm for the project, which some are calling “Calexit,” after “Brexit.”

My flag-hoisting neighbor shares this enthusiasm.

If you’d like to help the Yes California Independence Campaign gather signatures to put their measure on the ballot, you can contact them here. Just remember that the last time there was a serious dispute over the prenuptial agreement called the constitution, it was South Carolina that began the divorce proceedings. It was settled out of court.

* * *

A parting thought. If we accept that our goal is not only to ensure that the “one person, one vote” rule is enforced but also to ensure that each vote is given equal weight, then we must also accept that there are more egregious violators of this rule than the European Union or the United States. Both those unions look like models of proportionality compared to the United Nations, where India is a back-bencher and France has the power to veto.

What to do?

First, propose to the General Assembly that the UN Charter be amended to ensure that representation in the UN is strictly proportional to population.

If the number is set at 10 million then Sweden, Austria, Switzerland, and Norway, among others, would have to do without a seat.

There are about 7.5 billion of us now, so 750 representatives in the hall would mean one for every 10 million or so citizens. So far, so good. Let’s see: China would get 138 seats; India, 132; the US, 32; Russia, 14; Germany, 8; the UK, 7; France, 6; Canada, 4; Australia, 2; Belgium, 1; Portugal, 1; and Sweden, 0.

Wait. If the number is set at 10 million then Sweden, Austria, Switzerland, and Norway, among others, would have to do without a seat. Just mill around at the back, I guess.

So, second, when the first proposal is rejected, the US Ambassador to the United Nations should submit a letter to the Secretary General of the United Nations asking him to make the necessary preparations for the United States of America to leave the United Nations, in the name of equity.

Can’t call it “Amexit” — sounds too much like a TV commercial. Mmmm. How about “Usexit?” No? What, then?




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Comments

Bob Straub

The Founders specified persons as electors. If Electors are bound to vote in accordance with "winner takes all," or even in proportion to the votes cast in their respective states (with or without degressive proportionality), there would be no need for them: simple arithmetic would always yield the result. But the Founders wanted persons, as long as none is a "Senator or Representative, or Person holding an Office of Trust or Profit under the United States." [COTUS, Article II, Section 1]. Why else, but to allow those persons the possibility of voting their consciences rather than as ordered?

Geezer

Why else, but to allow those persons the possibility of voting their consciences rather than as ordered?

Because the alternative to the vote by the Electors being a ceremonial ritual is my vote being a meaningless gesture.

S.H.Chambers

Thank you for your comment. At some point, the positions regarding "one person, one vote", uniform weighting of all votes, and even strict proportionality seem to become aesthetic questions or even fetishes. If everything were done exactly in accordance with some rigid and pristine standard of fairness and the result was a Hugo Chavez, what is gained? Surely, the point of the exercise is to select good leadership.

Luther Jett

The Electoral College works, whether one likes the outcome of any given national election or not. One cannot help but note that those who call for its abolishment following any presidential election tend to be those whose candidate lost.

Only three times in our nation's history has there been a near-Constitutional crisis directly related to the electoral outcome: in 1824, in 1876, and (I would argue) in 2000. In the first two instances, the electors could not agree and the issue was thrown to Congress, as our Constitution specifies. In 2000, the Democratic Party's candidate, unhappy with the outcome in Florida, sued for a recount, setting off a process the ended only when the Supreme Court ruled in favo/r of the Republican candidate. While the intervention of the Supreme Court was unusual, again our system of checks and balances worked to avert a far more serious crisis.

The most recent election gave rise to rather desperate attempts to undo the electoral majority garnered by the Republican candidate. These attempts had little chance of succeeding, and indeed, the electors gave that candidate a solid majority, despite the popular vote.

The problem, in fact, is not with the institution of the Electoral College itself, but with the laws enacted by a majority of states which bind the electors to the majority victor. Nothing in the US Constitution mandates this; indeed, the Framers envisioned otherwise.

We may well come to a Constitutional crisis within the next four years, given the character of the creature who stands to occupy the Oval Office whenever he deigns to visit Washington D.C. But it will not be a direct result of the Electoral College.

S.H.Chambers

Thank you for your comment. Why is it representation proportional to population important for the US but not for the UN? That is the question. Or a least, it is one question among many that is not often asked when this subject is discussed. And let's have a binding global referendum by popular vote on reparations for the damages caused by colonization. If one person, one vote is the gold standard, why not?

Geezer

The problem, in fact, is not with the institution of the Electoral College itself, but with the laws enacted by a majority of states which bind the electors to the majority victor. Nothing in the US Constitution mandates this; indeed, the Framers envisioned otherwise.

Mr. Jett is mistaken. Article II, Section 1, says: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors ...."

The names of candidates for presidential elector did not appear on my ballot; the names of candidates for president did. Was I wrong to infer from that that the Manner the Legislature of my state directed the Electors to be appointed would be those who promised to vote for the presidential candidate who won the majority vote in my state? Was I wrong to infer that electors who breached that promise would be guilty of fraud? A presidential elector who betrays the trust of the voters who chose him deserves – at a minimum – to be tarred and feathered.

Luther Jett

Well, in the first presidential election, only George Washington was on the ballot. Yet, he did not receive a unanimous vote in the Electoral College. One elector voted for John Adams, stating at the time (I paraphrase) that no man should ever be elected to such an office without opposition. As I stated in my original post -- That the electors would be bound by the majority vote in their states was not envisioned by the original framers. The Constitution itself does not constrain them from voting differently. Whether or not one has the right to expect that the electors would reflect the will of the majority is a different discussion. A valuable one, but different. As for the UN -- proportional representation aside, the General Assembly hardly qualifies as a democratic institution. 

S.H.Chambers

Good point. The Electoral College was intended to be one measure among many that would prevent mob rule. It was also intended to help the states retain a degree of their sovereignty. The changes made to it over time have eroded both of these purposes, the first more than the second. And sure, the UN is less democratic than the US, but one goal of the Constitution was to prevent direct democracy. Both the UN and the US succeed on that score, even today.

Geezer

That the electors would be bound by the majority vote in their states was not envisioned by the original framers. The Constitution itself does not constrain them from voting differently.

That is correct. What the Constitution itself does say is that the Legislatures of the several States get to decide how the Electors are appointed. You seem to disagree with the decisions of those Legislatures. But that, as you say, "is a different discussion."

Scott Robinson

Dear Mr. Chambers,

The first question people should ask is: If we're going to base the presidential election on the popular vote, then why have separate states? Regarding the electoral college, a good way to think of it is like a playoff series of seven games. To win the series, you must win four games. If we switch to popular vote based elections, this would be similar to basing the playoff series on the number of runs scored. That means that the whole series could be decided by just one game. Think of states as being the same as games. Just like a playoff series is decided by all of the games that compose it, our elections are decided by all of the states that compose our union of states. Yes, I realize that a difference is that our elections are composed of all of the games being played simultaneously compared to the playoff series where all the games are played separately. Still, just because you win one game 20-1, doesn't mean that the other games you lost 2-1 don't count. However, popular vote does mean exactly that. One good point you discus is the desire to keep the union of states together, and how long to you think the union (team) will stay together if they are subjugated to the will of just one member?

The separation of California would be interesting. I think that if it happens, the treaty for the Mexican American War no longer applies. As a result, California is returned to the Republica de Mexico. I wonder how the filthy rich yuppies of San Francisco would feel about that. Do you think that Mexico would provide them with a sanctuary?

Nice Article,
Scott

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