The Framers Never Intended to Bind Us Forever to 1789

The essence of the doctrine of originalism is that the only proper way to interpret the Constitution is to determine the original intent of the Framers. Our conservative Supreme Court is in thrall to this doctrine, despite the reluctance of the Justices honestly and consistently to apply originalism. They know that a strict application of originalism would lead to absurd, politically disastrous results that would further undermine the legitimacy of the Court. But what if the original intent of the Framers was actually that the Constitution should live and breathe in each period of our history and not be limited to what it meant in 1789? There is considerable reason to believe that this is exactly what the Framers intended.

The first point to make is that the Constitution itself contains no rules or guidelines for its own interpretation. The Framers started with a clean slate and their task was to devise a plan for a radically new form of government that existed nowhere else in the world at the time. But they gave us virtually no instructions or guidance on how we were to interpret the Constitution’s meaning. What’s more, our founding document does not even give the Supreme Court the authority to rule on whether federal or state legislation complies with the Constitution. That power was simply declared to belong to the Supreme Court in 1803 by the Court itself. It is pure nonsense to say that the Framers intended the Constitution to be forever interpreted according to its meaning in 1789 or for us to be locked into any other interpretive theory. There is just no evidence for it. Accordingly, the doctrine of originalism cannot be supported by applying originalist principles.

While we know the arguments and positions on key issues taken by the delegates to the Convention, the actual words of the Constitution were drafted by a Committee of Detail that was appointed midway through the summer of 1789. The Committee’s task was to take the various agreements in principle that had been reached by delegates and commit them to writing. The Committee of Detail consisted of five members – not including James Madison — and was chaired by Virginian James Randolph. The first draft of the Constitution was in Randolph’s hand and contains two rules he followed in the drafting task. They were:

to insert essential principles only, lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events, and

to use simple and precise language, and general propositions, according to the example of constitutions of the several states. (For the construction of a constitution of necessarily [sic] differs from that of law.)

It would be a mistake to view Randolph’s second rule as committing the delegates to textual precision so that the Constitution’s meaning would be fixed. That is completely clear from the repeated use of terms and concepts that invited interpretation. Here are just a few.

  • Congress shall have the power to provide for the “general welfare” of the United States – Art. I, Sec. 8, Clause 1.
  • Congress shall have the power to make all laws which shall be “necessary and proper” to carry into execution any of the enumerated powers and all other powers vested by the Constitution – Art. I, Sec. 8, Clause 18.
  • Congress shall have the power to make all “needful rules and regulations” respecting the territory or other property of the United States – Art. IV, Sec. 3, Clause 2.
  • No person shall be deprived of life, liberty or property without “due” process of law – Amend V and Amend XIV.

What could the Framers have been thinking when they used these open-ended and malleable concepts? Surely they understood that they were leaving to us the job of providing meaning.

There is no question that among the Framers were many men of political genius. They were well-versed in the history and weaknesses of various forms of government, including republics. Yet originalists argue that these men bequeathed to us a brittle, inflexible Constitution that with each passing year becomes more difficult to fit to contemporary issues. Could the Framers have been so vain and unable to see the danger of this approach? Unlikely. Without a supple Constitution, that very document risks creating the conditions for its own replacement, and how that happens may not be pretty.

Jefferson was not at the Constitutional Convention in 1787-89, having been sent by Congress on a diplomatic mission to France. But his views were broadly known through his correspondence with delegates. He was certainly one of the most agile and far-reaching thinkers of his age. He wrote later in his life that

Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, suppose what they did to be beyond amendment. . . .  But I know, also that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.

Our Constitution, interpreted through the lens of originalism, cannot keep pace with the times. When the Supreme Court makes that policy choice — because originalism is not required by the Constitution or any law — they render us painfully, dangerously stuck in the past. I feel fairly certain that if somehow we could explain to the Framers what this originalism is all about, they would laugh at us for being so foolish.

Our Supreme Court in the Grip of Originalism

Legal doctrines don’t usually make the news, and rarely have a direct effect on anyone beyond the participants in a particular case. But our Supreme Court is in the grip of a doctrine that is having a profound, pernicious effect on the whole country and there is no end in sight. That doctrine is originalism. Originalism was the doctrine relied upon by the Supreme Court to find a Second Amendment right for individuals to own and carry guns and for overturning Roe v. Wade.  What I hope to show is that originalism is not an effective or even honest means of interpreting the Constitution. Rather, it is a tool employed to reach results satisfactory to the political right.

Most originalists assert that the only proper way to interpret the Constitution is by determining the original intent of the Framers concerning the language at issue. One scholar has called this a severe case of ancestor worship. Because of fatal defects in this approach, other originalists now claim to base Constitutional interpretation on the “original public understanding” of the words and phrases at issue. The two approaches differ slightly but both call on judges (or their 25-year-old law clerks) to be historians, which they are most certainly not qualified to be.

One unique aspect of the American legal system is that our Constitution is treated by courts as a legal document, not a political one. It is not interpreted in special constitutional courts, but rather in federal and state courts much the same way as any other law. When presented with a question requiring the interpretation of either a statute or the Constitution, judges normally consider the original meaning of the provision. But when interpreting the Constitution, they do so side by side with other factors such as how courts have previously interpreted the provision, the present meaning of the words, how the provision can be applied to situations unimaginable in 1787, and more.

But not originalist judges. They disregard all other interpretive factors entirely. They stop looking when they divine the original meaning. They do so ostensibly to prevent unelected judges from making up law as they go along, which they claim is legislating — a task reserved by the Constitution to Congress. In fact, however, originalist judges themselves make up law as they go along by their choice of one history over another, one Framer’s intent over another.

The Fool’s Errand of Originalism

The problem with tethering constitutional interpretation to original meaning is obvious. Some provisions of the Constitution are clear and need no interpretation. The provision that the President must be at least 35 years old is one of these. Other provisions are notoriously lacking in clear meaning — by design. For example, the provision that says Congress may make all laws “necessary and proper” for carrying out its enumerated powers.  It is these ambiguous provisions that require interpretation.  Judges start with the text but quickly realize that text consists of words that may have had different meaning in 1787. Just one example is the impeachment provision in Art. I, Sec. 3 disqualifying a convicted official from any “Office of honor, Trust or Profit under the United States.” What is an office of honor and how is it different than an office of trust?

Originalism not only depends on determining the 1787 meaning of words but, when that meaning is unclear, on determining the intent behind their use. How can we know this intent? Often this comes from the contemporaneous statements and writings of the delegates to the Constitutional Convention. What could possibly go wrong with that?

We all know that two observers of the same event will describe it differently. Which of the two understandings is correct? Only James Madison’s notes comprise a relatively thorough and consistent account of the Convention. But none of the Framers – especially Madison – was unbiased. Madison did not attempt to record speeches verbatim, and his notes tend to summarize fully arguments with which he agreed and to give short shrift to those he opposed. He could not speak and take notes at the same time so the “notes” from his own speeches are suspect. Furthermore, Madison repeatedly revised his notes during and after the Convention. This reliability problem is even worse when we use later expressions from the delegates. Can John Adams’ recollections of the events at the Constitutional Convention written thirty years later be relied upon for anything?

Then there is the problem of whose intent is conclusive. Altogether there were 55 delegates to the 1787 Convention, but only 39 signed the document. While each provision was adopted by a majority vote of those present, these majorities shifted by issue. Some delegates who voted on early provisions went home before the whole document was voted on. Some delegates were fiercely opposed to the adoption of certain provisions and would have refused to sign the whole document if to do so meant consent. A compromise was devised so that a delegate’s signature meant only that he had witnessed the unanimous action of the assembled states in adopting the draft.

Under these circumstances, how can a single original meaning for any of the document’s ambiguous provisions be distilled? The truth is that there were as many meanings, aspirations, and intentions as there were delegates. Picking one and declaring it to be the original meaning to the exclusion of competing ones is a results-oriented process that undermines public confidence in the Court.

How Originalism Could Change American Society

There is no reason to speculate about how life in American society could retreat if an originalist Supreme Court continues to have its way. A woman’s right to avoid compelled pregnancy, involuntary childbirth and forced parenthood – a right recognized in Roe v. Wade fifty years ago – was declared to be without support in the Constitution in the recent case of Dobbs v. Jackson Women’s Health Organization. There is no reason for an originalist Supreme Court to stop there. Indeed, Justice Thomas in his concurring opinion in Dobbs identified several established rights that are vulnerable, including the right to contraception and the right to same-sex marriage.

So where will this all go? I am not predicting any of the following. What I am doing is showing that honestly and consistently applied originalism can lead to absurd results, and that it is a threat to established legal and societal norms.

  1. Racial segregation of public schools. Segregation has been outlawed since Brown v. Board of Education in 1954. Under an originalist approach school segregation would be constitutional. Segregation was found unconstitutional in Brown under the Equal Protection Clause of the Fourteenth Amendment. But that was not the Amendment’s original meaning. When the Fourteenth Amendment was adopted after the Civil War it was not understood to forbid segregation in public schools. At that time even northern states segregated their schools. The very same Congress that proposed the Fourteenth Amendment passed a law segregating the schools in the District of Columbia. An intellectually honest and consistent originalist Supreme Court would have difficulty reaching the same result as the Brown Court did 68 years ago.
  2. Discrimination against women. The only thing in the Constitution specifically protecting women’s rights is the Nineteenth Amendment establishing a woman’s right to vote. The Equal Rights Amendment, which would have extended all rights to women on an equal basis with men, was not ratified. Since the 1970’s the Supreme Court has held that the Equal Protection Clause of the Fourteenth Amendment substantially limits legislative power to discriminate against women. But virtually no one in 1868 when that Amendment was adopted understood it to apply to women. At that time discrimination against women was widespread. Indeed, in 1872 the Supreme Court itself upheld an Illinois decision to deny a woman a law license on the basis of her sex. There is no way that an originalist today could argue that the original meaning of the Constitution prohibits the federal government or the states from discriminating against women.
  3. Application of the Bill of Rights to the States. The Bill of Rights was added to the Constitution to address concerns that individual rights and liberties were not clearly protected in the original document. But the Bill of Rights as written and originally understood restrained only the federal government. States were not prohibited from abridging religious freedom, the freedom of speech, conducting unreasonable searches and seizures, and so on. Since 1868, the 14th Amendment has been the vehicle for applying the Bill of Rights to the states. It prohibits states from denying “liberty” without “due process of law” and infringing the “privileges and immunities of citizens.” But the Amendment does not specifically apply the Bill of Rights to the states. To get there required interpretation by the Supreme Court in a series of cases in the 1960s that originalists today would reject. They argue that if Congress intended the full Bill of Rights to apply to the states it would have been easy to say so.

Despite all the rhetorical bluster from originalist Supreme Court Justices and conservative legal scholars, the worst of the foregoing parade of horrors is unlikely to happen. Why will the Supreme Court not undertake a wholesale originalist revision of our laws? The answer is that originalism is a political tool to be used to achieve political goals. It is merely dressed up as a serious doctrine of Constitutional interpretation. Our originalist Supreme Court Justices know that an honest and consistent application of originalism would not be politically possible. Instead, they have begun a process of altering only those rights fervently desired by, or specially despised by, the conservative fringe in America. And they do this simply because they can.

Can Trump Pardon Himself?

The stink from the pile of Trump’s pardons is palpable – it is the stink of corruption and abuse of power.  A high percentage of Trump’s pardons have gone to those with a personal or political connection to him.  Those receiving his favor include murderers, dishonest politicians, fraudsters, thieves, and liars. Still, it is widely believed that a president’s pardon power is unlimited, that he or she can pardon anyone for virtually any crime. The question of the moment, one that our nation has never had to answer, is whether a president can pardon himself.

The pardon power is a creature of the Constitution.  Article II, Section 2 states that the President “shall have power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” There is no limitation on self-pardons here. Yet the power to pardon has been exercised by presidents over 20,000 times and never once has anyone attempted to pardon himself.

Certainly, a self-pardon has been considered.  In August 1974 President Nixon met with senior staff to discuss options for concluding his presidency.  White House lawyers had prepared a memo in which they advocated the legality of a self-pardon and, according to Gerald Ford who was in the meeting, Nixon believed he had that power. Nevertheless, he resigned.

The strongest argument in favor of the power to self-pardon is the simple, textual one. The Constitution mentions pardons in only one place, where it seems to give a president plenary power to pardon.  In Schick v. Reed (1974), Chief Justice Burger wrote “we therefore hold that the pardoning power is an enumerated power of the Constitution and that its limitations, if any, must be found in the Constitution itself.”  It is noteworthy that the Court did not say “in the clause itself.”

There are only two limitations stated in the Pardon Clause – a president may not pardon in cases of impeachment or for state crimes.  This probably means that a president could not pardon himself for the crimes that are the basis of an impeachment proceeding against him.  Nothing elsewhere in the Constitution expressly forbids the power to self-pardon.  In such a case the rule of construction called expressio unius may apply. This rule holds that the expression of one limitation excludes any others not expressed.

But not so fast. The Schick case, still the leading case on the meaning of the pardon power, tells us that the pardon power is not quite complete and self-contained:

In light of the English common law from which such language was drawn the conclusion is inescapable that the pardoning power was intended to include the power to commute sentences on conditions which do not in themselves offend the Constitution . . . .

If we stop at a mere textual reading of the Pardon Clause, which the current Supreme Court might well do, we don’t reach the question of whether a self-pardon would offend the rest of the Constitution. That method of interpretation is called the structural approach.

Self-judging is a subset of self-dealing and the Constitution is full of limitations on self-dealing. Here are a few examples.  A member of Congress cannot simultaneously hold another federal office and cannot resign to take a job that was created, or the pay for which was increased, during that term of Congress. Congress cannot legislate a pay raise for itself that takes effect before the next congressional election. A president’s salary cannot be increased without an intervening presidential election.

Perhaps more to the point is the question of who presides at an impeachment trial.  When the president is tried in the Senate the chief justice presides, not the vice president who is obviously self-interested.  On the one hand he has been elected on the same ticket as the president and might wish the president to be acquitted for that reason.  On the other hand, the vice president would be elevated to president if the sitting president is convicted. The Constitution does not specify who would preside if the vice president were impeached but it certainly would not be the vice president himself.

But neither the textual nor the structural approach to interpreting the Pardon Clause can tell us whether there are inherent limitations in the term “pardon.” For that we have to adopt the approach called originalism, which looks at the how the Framers understood the term at the time it was used in the Constitution.

The Supreme Court has repeatedly stated that the primary source for interpreting the pardon power is the English common law known to the drafters at the time the Constitution was adopted. One should expect, then, that any limitations that existed at common law should be a part of the meaning of the term “pardon” and incorporated into the interpretation of the Pardon Clause, even though not expressed in the text of that clause.  This, indeed, has happened.

The president can issue a pardon at any time after a crime is committed, even before arrest or indictment. But no pardon can issue before a crime is committed. Otherwise, it would amount to an indulgence to commit the crime and be void. Another example is found in Burdick v. United States (1915), in which the Supreme Court ruled that a pardon is only valid if accepted by the defendant. Furthermore, acceptance of the pardon conveys acceptance of guilt, much as in the common practice of plea deals.  After Nixon’s resignation, President Ford gave him terms on which a pardon would be granted. One was an admission of guilt and a statement of contrition. Nixon finally said that he had been wrong in the handling of the Watergate scandal and that fair-minded people could consider his actions “intentionally self-serving and illegal.”

One common law pardon requirement has not yet been recognized by the Supreme Court, perhaps because it has never been properly raised — the requirement of specifying the crime being pardoned.  We know this requirement was part of the English common law just before the Revolution because it was clearly described in Blackstone’s Commentaries, the most influential treatise on law in the 18th Century.

In practice, the rule requiring specificity is followed to this day. For example, the Justice Department maintains on its website the details and actual text of each pardon Trump has granted.  Each one refers to specific crimes.  The Nixon pardon in 1974 is the one significant exception. It read that Nixon was being pardoned “for all offenses . . . which he . . . has committed or may have committed or taken part in” during the period of his presidency.  That pardon went unchallenged by Leon Jaworski, the Special Prosecutor at the time.

Now, imagine that Trump is about to pardon himself.  He is not likely to specify what crimes he is pardoning and certainly not inclined to admit that he has actually committed a crime.  Instead, he is most likely to use a self-pardon to insulate himself from further investigation and prosecution for obstruction of justice during the Mueller investigation and perhaps income tax crimes that may be revealed when his tax returns are disclosed.  Suppose he issues a general pardon of himself and his immediate family for “any and all federal offenses that are alleged to have been committed by him or them at any time preceding the date of the pardon.” Who can challenge the validity of that self-pardon, including its lack of specificity, in what context and to what effect?

The validity of a self-pardon cannot be tested unless Trump asserts it as a bar to prosecution for the crimes allegedly pardoned.  A political decision will have to be made by President Biden to commence a prosecution against his predecessor for federal crimes, perhaps committed while in office, and a legal decision will have to be made by the prosecutors that the arguments against the pardon are likely to prevail.  These are both substantial hurdles.

Much can be said against a sitting president pursuing a criminal case against his predecessor. The objective now should not be revenge, but rather to re-establish the guardrails and norms of democracy.  Our country is too polarized at this moment to absorb what would be interpreted by many as a political hit job.  If Trump is to be prosecuted, let it be by the New York authorities who apparently already have him in their sights.  His self-pardon would not block a state prosecution.

In England before the American Revolution there was never controversy over self-pardons because the king was thought to be above the law and incapable of violating it. But our Constitution rejected kings and kingly power.  It just seems wrong and contrary to our sense of justice for an elected official to be able to pardon himself. We often hear that no man is above the law, but if a president can pardon himself then he is the law.  The argument for commencing a prosecution against Trump, aside from bringing him to justice for his crimes, is to attack the idea of a presidential self-pardon at its first appearance so that the practice cannot take hold.

In summary, will Trump try to pardon himself?  I would bet on it. He has always been a norm-buster, particularly when it benefits him directly. Will he specify what crimes he has committed and what is being pardoned?  Unlikely. Will President Biden authorize a prosecution against Trump for federal crimes and attack the validity of the self-pardon?  I doubt it, but it depends on what evidence is developed and whether he receives a recommendation to do so from a special prosecutor.  What will the Supreme Court say about a self-pardon?  I am worried about the answer to that question, but it certainly would be an opportunity for the Court to establish once and for all that this is a country of laws and not strongmen.

Finding Where Your Rights End and Mine Begin

I get annoyed by inane government rules and being told what to do by officious clerks.  I have always had a small authority problem.  I’ll wager I am not alone in this, but a developmental task toward adulthood is recognizing this as a personal failing.  It is not evidence of some natural or constitutional right to be ornery.

Let me cut to the chase.  “Individual rights” extremists have distorted what it means to live within a society of other people. Yes, this is America, the land of liberty.  But an individual – even an American – has no constitutional right to live his or her life in such a way that it endangers or injures another person.  When we choose to live among other people, we surrender some of the liberty we would otherwise retain if we lived in the wilds of Idaho.

Take property rights, for example.  In Jefferson County, West Virginia, where I live one often hears that people have the right to use their own property the way they see fit.  This is as much wishful thinking as anything, but it is wrong.  It flies in the face of 500 years of Anglo-American legal history.  A person has the right to use his property as he sees fit only so long as it doesn’t destroy the quiet enjoyment of his neighbor’s property.

Most of us have a grip on this concept — not even the most ardent rights fanatic would claim a constitutional right to locate a nuclear waste dump on his property.  People who move to fancy subdivision communities with architectural restrictions know they can’t even paint their house the color they choose – but this is the price for living in that community.

Mandatory vaccination is another area where the community’s right overcomes even a sincerely held belief that vaccinations might be harmful to the individual.  Mandatory vaccination laws have been upheld against constitutional challenge since 1905, when the Supreme Court upheld a law requiring smallpox vaccination.  In Jacobson v. Massachusetts the Court said

[r]eal liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.

And how about highway speed limits?  Anyone who claims a constitutional right based in personal liberty to drive 110 miles per hour on the public highways would rightly be considered a dangerous crank.

An obvious current issue involving the clash of individual liberty with community safety is the requirement of wearing masks in public places during the pandemic.  This requirement exists in West Virginia by order of the Governor and in many other states and cities, but is routinely disregarded by people on personal liberty grounds.  While the Supreme Court has not dealt with the constitutionality of mask requirements, it did deny an injunction against a California rule limiting the number of people at public gatherings, including churches, during the pandemic.  The attack on this rule was based, in part, on the supposed right to liberty. But this right yielded to the state’s “police power” to ensure safety.  So, no, you do not have liberty to refuse a mask when doing so endangers my health.

I can safely say that there are no more important rights in the pantheon of American rights than those created by the First Amendment.  In the First Amendment, the Constitution explicitly says that the government shall not infringe the right of free speech.  The text sounds absolute but, in fact, free speech rights have always been regulated as to time, place and manner of exercise.  Furthermore, whole categories of speech have simply been declared “not protected” by the First Amendment.  Hate speech and obscenity are two examples.

The point is that a right to personal liberty, which is not explicitly created in the Bill of Rights and has no clear contours, is not absolute either.  It must be, and is, subject to limitations like all other constitutional rights.  The only mention of a right to liberty is in the Fifth and Fourteenth Amendments, which deal with how a person may be deprived of that right – by due process of law.  These Amendments don’t tell us where the right might actually apply.

This leads me to the subject of guns.  Gun ownership and display have been traditionally limited and controlled by the federal and state governments in the public interest.  An example is the 1938 National Firearms Act imposing a $200 tax and a registration requirement on machine gun ownership, which was upheld by the Supreme Court against a Second Amendment challenge.  The Amendment makes clear that the militia, and thus the gun ownership that supports it, are to be “well regulated.”  Gun rights fanatics like to ignore this first clause of the Amendment because it is inconvenient to their personal rights argument.

By a one-vote majority in The District of Columbia v. Heller (2008), the Supreme Court found an individual right to possess a firearm and to use it for traditionally lawful purposes, such as self-defense within the home.  This case invalidated gun control legislation for the first time in American history.

But if a right exists to parade around in public places openly carrying assault weapons, it is not a product of the Second Amendment.  And it is not supported by any constitutional right of personal liberty.  Even the West Virginia Bill of Rights provides no support.  It says only:

A person has the right to keep and bear arms for the defense of self, family, home and state, and for lawful hunting and recreational use.

So if you are a gun-packing Second Amendment enthusiast, we need to know where your rights end and mine begin. This language from the Heller opinion will help:

The Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose . . . . [This] opinion should not be taken to cast doubt on . . . laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

For the moment you have some cover from the West Virginia legislature. But do not think that your “liberty” to walk around intimidating people at polling places and government buildings with a military assault rifle over your shoulder is secure forever. Your snake flag won’t help you on this one.

The Electoral College: How it Works – and Doesn’t Work.

I apologize from the start. There is no way to make a discussion of the Electoral College short and snappy. The only way to do this topic justice is to cover it top to bottom. So that is what I have tried to do. Anyone hoping for a short read should quit now while they are ahead.

Let’s start with a simple proposition with which most everyone these days would agree – the President of the United States should be elected by a majority of voters. Over this nation’s more than 240-year history, our understanding of democracy has come to mean one person one vote, with each of those votes being equally valuable. Nowhere should that be more important than in the election of the President. But our Founders had a different notion of how the election of the President should work.

  1. Adoption of the Electoral College. 

During the constitutional convention in 1787, some delegates were in favor of direct election of the President. But the more influential of them, including James Madison, were not. There were several reasons for this. Some delegates felt that the country was too large for voters in one region to know the worth of candidates from another region. The party system, which allows factions to organize candidates into slates recognizable in all regions, did not yet exist.

But the most persuasive reasons were based in power politics. Direct election of the President would permit areas with the majority of voters to dominate this important choice. The delegates had already performed a complicated balancing act with respect to the legislative branch to ensure that small states did not get steamrolled by large ones – the Senate would consist of two Senators from each state regardless of size. A method was needed to permit majority selection of the President that still respected the new federal system. Just how to do this was a difficult decision that occupied most of the summer of 1787.

The Electoral College was a last-minute compromise that was no one’s first choice. Madison said that because the final adoption of it took place in the latter stage of the convention “it was not exempt from a degree of the hurrying influence produced by fatigue and impatience in all such Bodies.” We can all recognize this – they wanted to get out of town.

An uglier truth about this process is that slavery played a large part in the reluctance of southern states to support direct election of the President. The Virginia delegates feared that the North had a greater number of voters because slaves in the South obviously could not vote. Representation in the House of Representatives had presented a similar issue. The pernicious compromise reached was that when allocating seats in the House, which is based on population, slaves would count as 3/5 of a person. Wanting to have its cake and eat it too, the South ensured that this same fiction was utilized in the Electoral College mechanism.

  1. How the Electoral College Originally Worked.

The Electoral College provisions are found in Article II, §§ 2-4.  Sections 2 and 4 are in their original form.  Section 3 was amended by the Twelfth Amendment in 1804.

In essence, when voters cast their ballots for President they are actually voting for a slate of electors who will cast votes for President. A state has the same number of electors as it has Representatives and Senators. In this way, the fiction that slaves were 3/5 of a person when allocating Representatives sneaked into the voting procedure for President.

Each state decides how its electors are chosen – over time this has evolved from appointment by legislatures, to direct election of electors, to the system we have now where political parties propose a slate of electors pledged to that party’s candidate. The winning candidate’s electors are then “chosen” by the state. The names of electors don’t appear on the ballot at all. Nearly every state, including West Virginia, operates this way.

Originally, each elector voted for two candidates, with each vote having equal weight. The candidate with the most votes, so long as it was also a majority of all electoral votes, was the President and the candidate with the next highest number was the Vice President. This worked fine while there was general consensus on who should be President. It blew up in 1800 when the race between John Adams and Thomas Jefferson was hotly contested.

In 1800 Jefferson, a Republican, received 73 electoral votes (a majority of all votes) and Adams, a Federalist, received 65. But Jefferson’s electors around the country also cast their second 73 votes for Jefferson’s running mate Aaron Burr. Basically, someone forgot to ensure that Burr received one fewer vote than Jefferson. The Constitution required that this tie be sent to the House of Representatives for resolution. The procedure, which still exists, gives each state one single vote. Jefferson, Burr, and Adams were all possible choices. To make a long story short, Alexander Hamilton — a Federalist who loathed Burr — interceded on Jefferson’s behalf. But the system clearly needed fixing.

  1. The Twelfth Amendment.

The Twelfth Amendment, ratified in 1804, created what is called by scholars the “Jeffersonian Electoral College.” It dispensed with electors casting two votes for President and replaced that with electors casting one vote for President and one for Vice President on distinct ballots. In each state a list is to be kept of everyone receiving electoral votes for President and for Vice President. After the electoral votes are cast in each state, they are transmitted to the House of Representatives for counting. If there is a tie, or if no candidate for President receives a majority of electoral votes, then the House votes to resolve the situation, each state getting a single vote.

The essence of the Jeffersonian model is that no President should be elected without a majority of majorities.  That is, each state should choose electors in a way that reflects a majority of voters in that state. Then a majority of all electors so chosen would be required to elect the President. While there is no direct election of the President by the people, the theory is that this model both reflects a majoritarian choice and respects the importance of states in our federal system.

But this system too has broken down, primarily because now almost all states award their electoral votes to the candidate receiving the largest number of votes in the general election, whether or not that number is a majority. Where there are three or more candidates, this often amounts to a winner-take-all plurality system. While no President can be elected with less than a majority of electoral votes, any Electoral College majority can be made up of a number of states in which that candidate did not receive a majority of the popular vote.

The 2016 election is an example. Trump was unable to achieve the Jeffersonian majority of majorities because he received only 197 electoral votes (less than a 270-vote majority) from states in which he received a majority of the popular vote. Trump received all the electoral votes from seven states in which he won only a plurality of the popular vote. These states were North Carolina, Florida, Pennsylvania, Arizona, Michigan, Wisconsin and Utah.

This result was produced because third-party candidates Jill Stein and Gary Johnson also received a share of the popular vote in these seven states. It is not at all clear that Trump would have received a majority of the popular vote in these states if he and Clinton had been the only two candidates, or if there had been a runoff election between them. 

  1. A National Solution?

Of course, it is widely known that Trump also lost the overall popular vote in 2016 by some 3,000,000 votes. But this elides the fact that Clinton herself did not win a majority of the national popular vote – according to the Federal Election Commission she only won 48.18 percent of that vote. Under any democratic, majoritarian system she would not be entitled to the Presidency.

Much of the negative focus on the Electoral College comes from its failure to ensure that the winner of the popular vote is elected President, even though the Founders never intended for this to happen. One proposal for change is a Constitutional amendment eliminating the Electoral College in favor of the popular vote. This is a pipe dream in today’s political climate – no such amendment could command the necessary two-thirds majority in Congress and it is completely unrealistic to expect that the states which benefit from the current system would ratify such an amendment.

Another idea is the National Popular Vote Multistate Compact. This is a deal among participating states to award their electoral votes to the winner of the national popular vote, regardless of who wins the popular vote in that state. This doesn’t replace the Electoral College it simply produces a state’s electoral votes in a different manner than originally intended. The Compact wouldn’t be activated until enough states join to constitute the 270 electoral vote majority. At present ten states and the District of Columbia have joined representing 165 electoral votes.

This Compact idea has some problems. In the first place, who knows what the Supreme Court would do with a scheme that so obviously changes the connection between state voting and electoral votes without a constitutional amendment? Then as a practical matter, how would the Compact be enforceable against a state that backs out when its electoral votes would have to be cast for a candidate who didn’t win a majority of votes in that state? Finally, any interstate compact is required by Article I, § 10 to be approved by Congress. It is hard to conceive of this happening in the current political environment.

Here is the real problem with these proposed solutions. Because of the likelihood of third-party candidates in the future we may rarely have a majority winner of the national popular vote. Replacing the Electoral College by constitutional amendment or interstate compact with a strict popular vote system without a runoff feature will lead us repeatedly in the direction of national leadership that cannot command a majority of voters, a result no one wants.

  1. States to the Rescue? 

In his recent book Presidential Elections and Majority Rule, election law expert Edward Foley argues that individual states can solve the Electoral College problem by adopting legislation calling for a runoff election if no candidate achieves a majority on the first ballot. Those states would assure that the winner could not walk off with all the state’s electoral votes without being the state’s true majority choice. Although electors are required to be chosen on election day, Congress has provided this safety valve:

Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct. 3 USC §2.

An alternative to holding a runoff election after the nationwide general election day is to hold a first election around Labor Day and advance the two top candidates to the general election. This system is now in use in California and Washington.

But a two-election system, however constructed, would be costly for the state and the candidates.  Turnout would also suffer.  Foley suggests that a better solution might be the instant runoff election, a variant of ranked choice voting.

Voters would be asked to rank in order of preference all or a limited number of candidates for a particular office, say three. The candidate with the fewest first place votes is eliminated and then for all the voters who ranked the eliminated candidate first their votes would be recounted as if they voted for their second choice first. The process stops when a candidate accumulates a majority.

It would be possible for reforms like these to make a major difference nationally even if adopted only in a handful of states. For example, if Florida had used instant runoff voting in 2000, Ralph Nader would have been eliminated as a candidate before the final choice between George Bush and Al Gore. It would have meant that Gore, not Bush, would have been elected President.

  1. Conclusion. 

In Federalist No. 68, Alexander Hamilton said of the electoral college provision in the proposed 1787 Constitution that “if not perfect, it is at least excellent.”  How wrong this turned out to be. The Electoral College procedures have led us into contested elections and constitutional crises on several occasions, and often present us with non-majority Presidents.

While many people clamor for an amendment that would allow direct popular voting for President, this is probably an unrealistic hope. A constitutional amendment would have slim prospects. In any event, a national popular vote without a runoff feature would still be defective in those years when there were third party candidates because the candidate favored by most voters could still fail to attract a majority.

State legislative solutions to ensure that electors only go to the majority candidate are probably the better alternative because they can be quickly adopted and do not have to be universally adopted to render our quirky Electoral College truly democratic.

Regulating Hate Speech in Social Media

Recently, Facebook released an audit of its policies relating to hate speech and other troubling forms of speech. The audit blistered Facebook for being too slow and too tepid in its response. Facebook has traditionally been a proponent of “free expression” and its reluctance to regulate any kind of speech is laudable in many ways. But this is not a First Amendment issue. Facebook is a non-governmental actor not subject to the First Amendment. It can create whatever rules it wants for its platform. Facebook’s decisions on what speech to forbid or regulate are heavily influenced by the desires of its advertisers and other stakeholders – you and I. So what speech is permitted on Facebook is really the product of community self-regulation.

Whenever Americans talk about regulating speech it ought to make us uncomfortable. Facebook is correct that the default social and legal norm in this country is free speech. But even when a government actor is involved, free speech has well-defined limits consistent with the First Amendment. One of those limits is on hate speech.

Hate speech is speech or expressive conduct that conveys a viewpoint of hostility and hatred against another person or group. It is speech that does more than stimulate debate or discomfort. It attacks others on the basis of a characteristic or viewpoint in such a way as to threaten them. It is not speech directed at ideas, but at people, and often endangers peace and order.

The component of potential violence has always been the key. In Virginia and West Virginia “fighting words” statutes have existed for over 200 years forbidding face-to-face statements to another likely to result in violence. This concept forms the basis of many U.S. Supreme Court cases upholding statutory language that forbids speech likely to result in violence and rejecting statutory language regulating speech that merely creates controversy or discomfort.

But the devil is in the enforcement details. Facebook’s policy defines hate speech as a

direct attack on people based on protected characteristics – race, ethnicity, national origin, religious affiliation, sexual orientation, caste, sex, gender, gender identity and serious disease or disability. . . . We define attack as violent or dehumanizing speech, statements of inferiority, or calls for exclusion or segregation.

Deciding whether speech is or is not “dehumanizing” involves a lot of subjectivity. And there is considerable room for disagreement about whether a “statement of inferiority” promotes or risks violence. But remember, Facebook’s policy is not governed by the First Amendment and it can prohibit speech on its platform that could not be prohibited by a government.

The display of a noose is expressive speech that conveys a threat of violence played out over hundreds of years of experience. NASCAR acted swiftly and appropriately to investigate what was first reported to be a noose hung in a black driver’s garage stall. Can anyone doubt that if a Facebook user posted a page showing nothing more than a noose, it would send a palpable threatening message to a large community in America? The point is that some alleged hate speech can be the subject of debate. Some can’t.

Public mores about speech are in powerful flux. Take sexual matters for example. My parents told me that when they were growing up even mention of sexually transmitted diseases was socially inappropriate. That has certainly changed. So too, the kind of racist or homophobic comments and jokes that were common in “polite” society in the not-too-distant past now mark out the speaker as an ignorant buffoon, or worse.

In our daily lives we collectively exercise social disapproval and shame to prevent inappropriate or harmful speech. We decide what we will tolerate. And it is no different when it comes to Facebook’s grudging move toward more active policing of the speech on its platform. This was forced upon Facebook by the complaints of advertisers, employees and platform users. It was not the product of government regulation, but rather regulation by we the people. It is a good thing.

I am ready for the ration of grief I will get from my libertarian friends. They will say that my position invites the kind of hair-trigger political correctness so prevalent on today’s college campuses. First off, I will say that I was not aware offensive speech had its own political party. What we are talking about is not political correctness so much as social correctness. As far as excessive college speech codes go, the fault lies with the immature students and weak college administrators who permit the ”microaggression” and “safe space” nonsense. Yet the basic idea that speech can threaten and harm is still sound.

I am opposed to uninviting speakers because of their viewpoint, or shouting down unpopular ideas. But one argument in favor of college speech codes resonates in today’s environment. Free speech is important, but it is not the only civic and democratic value to consider. Fairness and inclusiveness are two others. When a public university issues a speech code, it must hew to the First Amendment. But when Facebook issues and enforces its hate speech policy, it can and should be more sensitive to the evolving public understanding of the harm that kind of speech does to our country.

Trump’s Obstruction of Congress: The Real Constitutional Threat

In the ongoing trial of Donald Trump, the House Managers have laid out a case on two articles of impeachment. Article I – abuse of Presidential power – received the most time and attention by the House Managers and the President’s defense team. However, Article II, charging the President with obstruction of Congress, describes conduct that will have more far reaching consequences for the nation. At the President’s direction, the White House and federal agencies have refused to produce a single document. He has also directed key federal employees to refuse to appear for testimony. If a President can unilaterally declare impeachment proceedings in the House to be invalid, and on that basis deprive those proceedings of crucial evidence, what is left of the impeachment power?

But unilaterally declaring the House impeachment proceedings invalid is exactly what the President, through his White House Counsel, did in an October 2019 letter. The letter asserted that the impeachment inquiry was invalid because the House failed to take a vote to authorize an impeachment inquiry before two of its committees began issuing subpoenas. The letter cited precedent from earlier impeachments. The real objection was that the House had not taken a preliminary vote making House members who supported it politically accountable. Therefore, according to White House Counsel Cipollone, “President Trump cannot permit his Administration to participate in this partisan inquiry.”

As we have heard, the Constitution bestows on the House of Representatives “the sole Power of Impeachment.” What does this really mean? It means that no other branch of government – neither the Senate, nor the courts nor the President — can decide what constitutes “Treason, Bribery or other high Crimes and Misdemeanors” for purposes of impeachment.

Furthermore, Article I, Sec. 5 of the Constitution gives the House, not the President, the power to determine the rules of its proceedings. No other branch of government can insist upon or determine the rules by which the House exercises its power of impeachment. Even if all prior impeachment inquiries started with a House vote, which is dubious, it is not for the President to decide that the House is bound by this precedent. There is nothing in the Constitution requiring such a vote.

The President’s defense team has argued that several privileges were involved in the President’s decision to defy subpoenas for witnesses.  Among these is executive privilege, which is the privilege of the President to maintain the confidentiality of communications between himself and other members of the executive branch, usually involving sensitive military or national security matters.  Executive privilege is rooted in the doctrine of separation of powers. But when President Nixon tried to shield the Watergate tapes by a blanket claim of executive privilege, the Supreme Court rejected the claim. As with any other claim of privilege against producing relevant evidence, the assertion of executive privilege must be specific.

The problem with executive privilege as an excuse for a blanket refusal to cooperate is that is has never been asserted either generally or specifically.  The White House Counsel’s letter referred to privileges the President could potentially invoke but did not actually assert executive privilege.  Even in the Senate trial so far, the President has not asserted executive privilege. To do so, the President would have had to identify the particular document or communication containing privileged material.

Even more fundamental, a privilege that has been waived cannot be asserted.  In the House Manager’s brief, they state

Regardless, executive privilege is inapplicable here, both because it may not be used to conceal wrongdoing – particularly in an impeachment inquiry – and because the President and his agents have already diminished any confidentiality interests by speaking about these events in every forum except Congress.

The President himself declassified the call record with President Zelensky.  He has asserted in public what he has and has not discussed with Ambassador Sondland, Chief of Staff Mulvaney and Ambassador Bolton about holding up security aid in exchange for investigations. This destroys privilege as to the subject matter of these communications.

If the House can be thwarted in its search for facts in an impeachment inquiry by the blanket refusal of the President Trump to cooperate, then the impeachment power will be neutered. There will be no sensitive matter on which a future President will not likewise make that same assertion.  The result will be that the power to check a reckless and lawless President will no longer exist. The power to subpoena material from the executive branch is essential for Congress to exercise the power of impeachment that it alone has.  As House Manager Schiff argued, without Article II (Obstruction of Congress) there can be no future Article I (Abuse of Power).

The first Article of Impeachment alleging abuse of power is serious.  It alleges a perversion of the power of the President into a tool for the President’s personal benefit at the expense of an ally. This seriousness of this conduct should not be minimized. But in terms of its long term damage to the Constitution, it pales before the second Article. We may finish the impeachment trial without a conviction on Article I, but if there is no conviction on Article II our constitutional power to check the executive will be in tatters.

What Are We Going To Do About It?

Even before the upcoming public impeachment hearings, we know the facts. Despite the blizzard of falsehoods issued by Presidential tweet to cover up the crime – it was a “perfect call”, there was no quid pro quo — all these have been discredited, one by one, then abandoned. Most recently, Ambassador Gordon Sondland changed his earlier testimony and now remembers that he did tell a Ukrainian diplomat that military aid would be withheld if there were no investigation of Hunter Biden’s company.

We know this: the President used our money, not his own, to squeeze a desperate country into providing political dirt on Joe Biden, Trump’s possible opponent in the 2020 election. This extortion was intended to benefit himself, not the country. The military assistance he withheld in this shakedown had been allocated by our representatives in Congress for the fight against Russia in eastern Ukraine. Trump’s July 25 call with Ukrainian President Zelensky was so improper – so illegal – that even White House staffers were shocked and attempted a cover up. So the question is not what happened. Rather, the question is what are we going to do about it?

Trump’s apologists are flailing. One assertion is that the whole impeachment inquiry is tainted because we do not know the identity of the original whistleblower, and that person might be hostile to Trump. But it is completely irrelevant how the inquiry began or the sentiments of the person who began it if the inquiry has produced the truth – and it has. All of the major allegations in the whistleblower complaint have been corroborated by actual witnesses to the call.

Another argument is the standard “whataboutism.” What about Joe Biden? Why didn’t “they” do something about Biden when he publicly threatened consequences for Ukraine if a corrupt prosecutor were not removed? But Trump is President and Biden never was. Biden never took action on any such threat, if one were actually made, while Trump did. Whataboutism is simply an attempt to deflect attention from the conduct of the President with an argumentative tactic used on elementary school playgrounds.

Trump’s enduring support among his partisan base suggests that many people may simply be rejecting the plain facts. After all, politics operates at an emotional level at least as much as an intellectual one. Some of Trump’s supporters will be loyal no matter what. He is the leader of their team, their tribe. This causes them to reject uncomfortable actual facts and accept “alternative” facts. It has been happening this way nearly every day during Trump’s Presidency.

There is another segment who are beginning finally to acknowledge the facts about what Trump did – they have little choice. But they argue that Trump has committed only a small “political” offense that should not result in his impeachment or removal from office. As a general matter, it is legitimate to debate the seriousness of an offense when determining the punishment. In this case, however, Trump’s offense is not trivial. It involves corruption and abuse of power.

But wait, there’s more. The nation has just come through a contentious debate over the Mueller Report on interference in the 2016 election. Part of what Mueller and his team investigated was whether the Trump campaign or individuals close to the President conspired with Russia to produce and use unfavorable information against his then opponent Hilary Clinton. On July 25 could there have been any doubt in Trump’s mind that soliciting a foreign government to interfere in our elections was a seriously wrong thing to do? Yet this is exactly what Trump did in his call with Ukrainian President Zelensky.

I have written earlier that a special circle in hell is reserved for Congressmen and Senators who are smart enough know the damage Trump is actually inflicting on our system, yet who spin the facts to defend him or remain silent. It is said that these people fear the political consequences if they honestly evaluate the facts and conclude that Trump crossed the line. They are calculating what they stand to lose from holding Trump accountable even if they believe the Constitution and the good of the nation requires it. This is corrupt in itself.

Those of us in this part of West Virginia are relying on three elected officials to make the right call on this important matter: Congressman Alex Mooney and Senators Shelly Moore Capito and Joe Manchin. It will probably be the most important vote they take in their political lives.

Expecting Congressman Mooney to be a fair judge of the facts is a fool’s errand. He has taken every opportunity to cling to Trump’s coattails. He recently barged into a secure hearing room to disrupt a deposition that was not open to the public. Mooney’s claim that the procedures were unfair is absurd since they were basically the same procedures used in previous impeachment inquiries and Republican committee members were participating in the deposition. So now I expect Congressman Mooney to produce some other equally shallow reason to oppose holding Trump accountable. He’s just waiting for someone in the Republican leadership to tell him what that is.

Despite Congressman Mooney’s antics, it seems likely that the House will vote to impeach the President. That means a trial will be held in the Senate, where both of our Senators – one Republican and one Democrat – will have a vote.

Writing in the Washington Post, Jennifer Rubin said:

When a politician demands a private benefit (opposition research for a politician’s private use) in exchange for performing public act (releasing aid), that is called soliciting a bribe. That sort of mixing private gain with public conduct is precisely the definition of corruption. It is this sort of corrupt dealing that the impeachment clause in the Constitution contemplated when it refers to “treason, bribery or other high crimes and misdemeanors.”

If these facts are confirmed in a Senate trial, the only way our Senators could spare Trump from removal is if they conclude that the offense is not serious enough to justify removing the President. This is essentially what happened when President Clinton was impeached for illegal conduct that did not amount to a breach of national trust.

At this present moment we have a different situation. If Trump is not removed he will be emboldened to do more of the same to preserve his power and future Presidents may be as well. We know the facts. They are bad. What are we going to do about it?

Reforming Corporate Behavior

We have heard for years that the sole purpose of a corporation is to make money for its shareholders, end of story. This notion gained ascendancy after a 1970 article published in the New York Times by economist Milton Friedman, who huffed that the idea that corporations have a broader responsibility to society is “pure and unadulterated socialism.”

Friedman’s article provided intellectual cover for the slash and burn corporate greed in the following two decades. But today Friedman’s article seems like an odd period piece and his ideas out of step. In fact, the Business Roundtable (BRT) recently repudiated Friedman’s view and announced henceforth that satisfying other corporate stakeholders, such as employees and customers, will be given equal importance to producing wealth for shareholders.

The Roundtable, formed in 1972, is a group of about 200 chief executive officers of America’s largest corporations. Chief executives are employees of the corporations they lead, although clearly the most important and influential of them. CEOs are hired by corporate boards of directors and these directors are elected by shareholders. So CEOs lack the power to declare unilaterally that the mission of their corporation will change. The recent statement of the BRT is not binding on anyone, but each CEO certainly sought the approval of his or her directors before signing on to it.

The BRT’s original leadership were bi-partisan business statesmen. But the BRT soon evolved into a forum for chief executives to attack labor unions and the taxation of business. These were the libertarian views of the infamous Koch brothers and their ilk, who spent millions of dollars promoting this “free market, shareholder primacy” concept using an army of captured think-tanks. And the BRT began functioning like a trade association for chief executives, lobbying for compensation tied to corporate share price.

Much blame for today’s lack of corporate social responsibility has been placed on using short term financial results and share price to determine executive compensation. Large, publicly-traded corporations must report quarterly to the Securities and Exchange Commission on their financial and business position. These reports often drive share price. Short-termism encourages a focus solely on the near term results of a particular activity or policy, instead of on the value that can be created by long-term investment in employees, customers and communities.

Writing in the Harvard Business Review, author Andrew Winston neatly sums up the problem this way.

The world faces enormous, thorny challenges that business is feeling: climate change, growing inequality (and awareness that these CEOs make hundreds of times more than their employees), water and resource scarcity, soil degradation and loss of biodiversity and more. These issues require systemic efforts, cooperation, and pricing of those “externalities” (like pollution and carbon emissions) that business has been able to push off on society. The current shareholder-obsessed system is not fit for this purpose.

It is probably most accurate to say that the BRT’s new policy statement is a recognition of the change that has already taken place in the business environment, rather than an exercise in leadership. As The Economist magazine put it, the CEOs “have either seen the light or caved in, depending on whom you ask.” As one example of the change around them, polling among millennials reveals that this important demographic does not want to work for, or patronize, businesses that do not share their more progressive viewpoint.

Of course there are skeptics and opponents of the new policy statement. Some ask how we could expect a corporation like ExxonMobil, which has spent decades questioning climate science and undermining global action, to act responsibly now merely because its CEO has signed the BRT statement. Not likely because the energy giant would have to rethink its entire business. Energy companies have billions of dollars worth of coal, oil and gas still underground. Corporate managers cannot by law intentionally erode the value of the investments of their shareholders, many of whom are retirees, widows and orphans.

Former Treasury Secretary Lawrence Summers notes that most of the Roundtable’s CEOs are sincere and want to do the right thing. “But in a world of fierce competition, good intentions are not enough.” He advocates a program of legislation and regulation to complement and implement the BRT statement. These would include raising the federal minimum wage and penalizing the transfer of jobs overseas.

Assuming that the CEOs have “seen the light,” it may be because important political figures are also calling for better controls on how corporations behave. Businesses have no “right” to operate as a corporation. Corporations are chartered by the states in which they are organized and must follow the legal rules of those states. Theoretically, nothing prevents the state of Delaware, where many large corporations are headquartered, from amending its law to require, say, a ceiling on the difference between a CEOs compensation and that of the average corporate employee in the state.

Massachusetts Senator Elizabeth Warren has a plan for that, as she does for most everything. Recall that the basis of the Citizens United case that opened the floodgates of corporate money into politics was that corporations are to be treated like people under the First Amendment. Warren’s plan turns the tables. If corporations are to have the rights of people, they should have the corresponding obligation to act like good citizens, not like sociopaths whose entire obligation is to make money.

Warren’s proposal is called the Accountable Capitalism Act. It would require any corporation with revenue over $1 billion to obtain a federal charter, which would obligate the corporation to consider the interests of all stakeholders in corporate decisions. Under the bill workers of the corporation would elect 40% of the directors, and corporate political activity would have to be authorized by 75% of the shareholders and 75% of the directors, many of whom would be workers.

Writing in the online journal Vox, Matthew Yglesias says that there is “no getting around the fact that Warren’s proposal would be bad – really bad – for rich people.” So you can expect them and their political allies to marshal every resource at their disposal to oppose it. Warren’s entire proposal might be difficult to enact even if Democrats sweep in 2020. But you can be sure that pressure on corporations to act in more socially responsible ways will be on the political agenda for years to come.

Donald Trump: Guilty of Obstruction of Justice

Special Counsel Robert Mueller has now delivered his final report on the investigation of Russian meddling in the 2016 election to the Justice Department. This investigation was broadened mid-stream to include potential obstruction of justice by the President through his interference with the Russia investigation. The final report consists of two volumes – the first devoted to Russian meddling and the second to the obstruction issue. The evidence of Russian meddling is stunning. The evidence of obstruction of justice is equally compelling, although the report was careful not to assert directly that the President committed a crime. Instead, it politely concludes that the evidence “does not exonerate” him.

In his May 29 public statement, Mueller referred to the Justice Department policy barring the indictment of a sitting President. Charging the President with a crime, he said, was “not an option we could consider.” It is important to understand that Mueller did not say the evidence was insufficient to make out a case of obstruction, only that Congress must decide this question in an impeachment proceeding. Mueller reiterated what he said earlier in his report — if his office had been confident that the President did not commit obstruction of justice, it would have said so. But “we are unable to reach that judgment.”

The rest of us are not constrained by the Justice Department policy. Anyone reading the Mueller Report with an ounce of objectivity will conclude that Trump actually did violate federal criminal law several times. That is also the conclusion of nearly 1000 former U.S. Attorneys and prosecutors who have signed an online letter concerning the report. They said:

Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.

What Constitutes Obstruction of Justice?

Several federal statutes prohibit obstruction of justice, but the proof elements necessary for a conviction are the same for each one. First, the defendant must have committed an “obstructive act.” Any act can be obstructive if it has the potential to block, render more difficult or hinder a proceeding.  An effort to influence a proceeding can be an obstructive act, even if done subtly, cleverly, or with “cloaking of purpose.” And an improper motive can render conduct criminal even when the conduct would otherwise be lawful and within the actor’s authority. A conviction for obstruction of justice does not depend on the success of the obstructive act.

Second, there must be a connection between the obstructive act and an official proceeding. One statute requires a connection to judicial or grand jury proceedings. Another requires a connection to a “pending” federal agency proceeding or congressional inquiry. Still another requires a connection to an official proceeding that need not be pending or about to be instituted at the time of the offense. The obstructive act must be objectively likely to obstruct the proceeding and the actor must subjectively contemplate a particular proceeding he hopes to influence.

Finally, the act must be done with corrupt intent, meaning “knowingly and dishonestly” or “with improper motive.” This element is satisfied when the actor had the intent to obtain an improper advantage for himself inconsistent with official duty and the rights of others.

Using this framework, the report analyzes ten categories of conduct by the President. I will focus on two of these.

The Termination of FBI Director James Comey.

Immediately after he took office, President Trump began an effort to influence and control FBI Director James Comey. On January 27, Trump invited Comey to dinner at the White House and asked him repeatedly whether he wanted to remain as Director. At the end of the dinner Trump told Comey “I need loyalty.” Then in February following Michael Flynn’s forced resignation, Trump spoke in private with Comey – but only after clearing the room of everyone else.  Trump said “I hope you can see your way clear to letting this go, to letting Flynn go. He’s a good guy.”

Twice in testimony before Congress – March 20, 2017 and May 3, 2017 – Comey declined to answer questions about whether the FBI investigators had ruled out anyone in the Trump Administration, including the President. Trump was furious.

Over the weekend of May 5, Trump decided to fire Comey and began the draft of a letter doing so. The draft specifically referred to the Russia investigation and that Trump was not a target. On May 8, Trump informed his staff, as well as Attorney General Sessions and Assistant Attorney General Rosenstein, that the decision had been made. Rosenstein offered to write a memo recommending that Comey be removed because of poor handling of the Clinton email issue, but the resulting memo did not mention the Russia investigation. Comey was fired on May 9, 2017.

Firing Comey was an obstructive act. It had the natural and probable effect of impeding the investigation by delay and disruption. It had the natural tendency to chill and discourage other investigators. Trump followed the firing with public statements that heaped scorn on the investigation, calling it a witch hunt, among other things. These actions had the potential to affect a successor director’s conduct. Firing Comey had the necessary connection to the FBI’s investigation of Russian meddling, which could have and did result in indictments. In addition, Trump knew that Flynn was under investigation and asked Comey to “let Flynn go.”

Finally, Trump’s firing of Comey was in response to Comey’s unwillingness to state publicly that Trump was not a target of the investigation. Substantial evidence indicates that the intent behind this was to protect Trump himself and the campaign from investigation. As soon as Flynn became a target, Trump asked for Comey’s loyalty. He was furious when Jeff Sessions recused himself. Trump knew that the investigation could uncover his dealings with the Russians concerning a Trump Tower in Moscow, which continued up until June 2016.

Trump dictated a press release about the firing that falsely said it was in response to a recommendation from Rosenstein. Press Secretary Sarah Sanders then falsely told reporters that Rosenstein “on his own” decided to come to the President about his concerns with Comey. But because of push-back from the Department of Justice that the firing was not Rosenstein’s idea, a new narrative was developed. During an interview with Lester Holt on NBC on May 11, Trump admitted that he had made the decision to fire Comey regardless of the recommendation from Rosenstein, saying “this Russia thing with Trump and Russia is a made up story.” The initial pretextual reason offered by Trump for the firing adds to the intent element because it shows he had concerns about the true reason.

Trump’s Efforts to Remove Mueller

It is hard to overstate the effect that the appointment of Special Counsel Mueller had on Trump. According to notes taken by a person present at the meeting where Trump was told of the appointment, the President said “Oh my God, This is terrible. This is the end of my Presidency. I’m fucked.” Trump berated Attorney General Session for leaving him exposed to a Special Counsel.

Trump immediately claimed that Mueller had conflicts of interest but Steve Bannon and others told him the alleged conflicts were “ridiculous and petty.” On June 14, 2017, The Washington Post reported that the Special Counsel was investigating whether the President had attempted to obstruct justice. The following morning Trump issues a tweet storm criticizing this new development, calling the investigation “the single greatest WITCH HUNT in American history – led by some very bad and conflicted people.”

On Saturday, June 17, 2017, Trump called White House Counsel at home Don McGahn and directed him to have Mueller removed. McGahn failed to carry out this instruction, so Trump called a second time.  In this call he said “Call Rod [Rosenstein], tell Rod that Mueller has conflicts and can’t be Special Counsel. Mueller has to go. Call me back when you do it.”  Instead of carrying out these instructions, McGahn was prepared to resign. Through the intervention of other White House staff, McGahn was convinced to stay and Mueller was not fired.

The Mueller Report makes quite clear that the attempt to remove the Special Counsel would be an obstructive act. Removal would delay further activity and chill the actions of any replacement Special Counsel. And, since Trump knew his actions were now under investigation by the Special Counsel, there is a connection to a potential judicial proceeding. Intent is shown by the sequence of events. On June 13, Rosenstein testified before Congress that there was no cause to remove Mueller and Trump dictated a press release that he had no intention of firing Mueller. The next day the media reported Trump was under investigation. Trump immediately began calling McGahn for the purpose of having Mueller removed.

Implications for an Impeachment Inquiry

Robert Mueller handed the issue of President Trump’s potential criminal liability to Congress for the only proceeding available to try a sitting President – impeachment. Impeachment is not a criminal trial, rather it is a political one. The Constitution says that a President may be impeached for “treason, bribery or other high crimes and misdemeanors.” To remove Trump, his conduct need not actually constitute a chargeable crime. Some acts, say a gross violation of the Emoluments Clause, are impeachable even though they are not crimes. And not every crime is a “high crime or misdemeanor” as we saw in the impeachment of Bill Clinton.

Scholars and constitutional lawyers agree that a “high crime or misdemeanor” is an abuse of power by a high official that constitutes an offense against the state or a violation of the public trust. In an impeachment proceeding, it should not matter whether we agree with Trump’s policies and decisions. The sole question should be whether he has inflicted a serious political injury to the country through an abuse of power enabled by his high office. Does removing one chief investigator inquiring into Trump’s own conduct, and threatening the removal of another, rise to that level? We may soon find out.