The E.U. on Negotiating Britain’s Secession: Traumatized Officials

As the war between the U.S.A. and C.S.A. (1861-1865) attests, the secession of a state from a political union in which governmental sovereignty is “dual” (i.e., both the union and the states are vested with it, such that it is divided, albeit not evenly) can be arduous. Although a “velvet” secession sans warfare, the secession of the state of Britain (UK) from the E.U. required lengthy and painstaking negotiations. In the case of a union of states, something more than integration occurs not only economically, but also politically. Anti-federalist rhetoric, such as in referring to the E.U. (or U.S.) as a “bloc” with “members,” and even with potential “associate members,” does absolutely nothing to counter the political reality of federalism wherein governmental sovereignty resides both with the union itself and the state governments. Officials in the E.U.’s Commission were prudent, therefore, in being hesitant regarding the possible re-accession of Britain as an E.U. state as talk on that possibility swirled in Britain in 2026 just after Andy Burnham became the prime minister and suggested that he would be open to a referendum. This occurred exactly a decade after the referendum on “Brexit” had passed and only six years after the actual secession. Between 2016 and the end of January, 2020, E.U. and British officials—federal and state, respectively—engaged in painstaking, even traumatic, negotiations. That this harsh characterization came from the E.U. side is consistent with my thesis that the vote in Britain to secede, or “exit,” from the E.U. was based on a rejection of the governmental sovereignty held by the E.U. rather than its states. E.U. officials would not have taken kindly to even the subtle suggestion that the E.U.’s portion of sovereignty did not really exist.

Speaking at a meeting with Britain’s Defence Secretary Wes Streeting ahead of the more formal meeting slated for November 20, 2026, the E.U.’s foreign minister, Kaja Kallas, said that some E.U. officials were still traumatized by what the media outlet Euronews characterizes as “the difficult and often bitter negotiations that followed” Britain’s referendum in 2016.[1] Reading between the lines, I suspect that Kallas meant that the British negotiators had behaved rudely and perhaps even in a hostile manner—essentially burning their bridges and thus making it more difficult for the E.U. to welcome the British back should they once again seek to become a state in the Union. Hence, while Kallas was meeting with her counterpart, Wes Streeting, her message was for the British to ”focus on participating in the EU’s existing defence frameworks in the short term rather than opening talks” on possible accession. The old adage, what goes around comes around, may apply here. There’s “a lot of traumatized people in Brussels over Brexit,” she said at the time.[2]

Just one year prior, in 2025, Britain had opted out of the E.U.’s €150 billion Security Action for Europe (SAFE) defense loan arrangement because the UK government had concluded that the estimated €4 billion to €6 billion entry fee “didn’t represent value for money.”[3] Besides the fact that the refusal is not in line with Kallas’s suggest that both sides prioritize “practical areas of cooperation before considering more ambitious steps,”[4] the transactional approach excludes the broad political judgment that would be necessary for the British to treat accession as a political rather than merely a transactional or even financial decision. Put another way, the financial cost/benefit analysis does not include the political judgment of whether to become a semi-sovereign state in a union that is as much political as it is economic and social.

In fact, the British treating relations with the E.U. as primarily or exclusively financial may itself be residue from the category mistake in having incorrectly viewed the E.U. as an economic network rather than a political, semi-sovereign union when the UK was a semi-sovereign E.U. state, and thus subject to federal law, directives, regulations, and ECJ rulings. Former UK Prime Minister David Cameron’s statement while in office that the E.U. was just one of the international networks to which Britain belonged demonstrates just how mistaken the “Brexit” faction in the UK was regarding categorizing the European Union. Were the E.U. merely a network, then of course it would be a mistake for the E.U. to claim or have any governmental sovereignty, and it was precisely this perceived mistake that was being the vote to secede from the Union. That E.U. officials knew otherwise—that the shared and exclusive competencies (i.e., domains of governmental sovereignty) of the European Union were valid and lawful under E.U. Basic Law—may account for why at least some of those officials felt traumatized by the mistaken British negotiators who were ideologically beholden to E.U. being instead in the “network” category. Such a cutting category mistake based in ideological denialism doubtlessly would not have gone down well even if only subtly as subterranean inuendo during the secession negotiations.

Accession should only proceed if enough of the British as well as their Parliament accept the validity of the E.U.’s shared and exclusive competencies as enumerated domains of governmental sovereignty, and thus that the E.U. is indeed an empire-scale federal Union of semi-sovereign states rather than sovereign countries. This is the bottom line for accession. If this stipulation is not met, the E.U. would be stronger without the British, and they in turn would be better off staying out of the European Union rather than going back to being serial objectors within the Union. In other words, the ideological fault line that prompted the secession must be dealt with in the UK before any accession-proposals are made. To be sure, going historically from being the host kingdom of an empire to a state in a federal empire-scale union is a difficult pill to swallow; it could be decades from 2026 before the British are psychologically ready for accession, even though Britain as a host kingdom (with the king rather than Parliament having the imperial power) and a semi-sovereign state (with the E.U. having the imperial role) bears a certain equivalence rather than being so much a step down.[5]  

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1. Shona Murray, “Brussels Still ‘Traumatised’ by Brexit, EU Foreign Policy Chief Warns,” Euronews.com, 2 November 2026.
2. Ibid.

3. Ibid.

4. Ibid.

5. See Skip Worden, British Colonies Forge an American Empire, available at Amazon.

E.U. Statehood for Sovereign Countries

Even as the E.U. struggled to come up with foreign policies on Gaza, Ukraine, and Iran in March, 2026, the union must have been cogent enough then for the Icelandic government to set a date at the end of the summer to have a referendum on whether to seek statehood. The term for this is accession, not merger, for an empire-scale union such as the U.S. or E.U. contains semi-sovereign states rather than co-scale and co-equal “partners.” By implication, to liken a state in one such union to another entire union is to make a category mistake that can be thought of in historical terms as making the claim that a kingdom is equivalent to an empire (of kingdoms). Both the E.U. and U.S. are federations composed of early-modern scale kingdoms and republics.[1] This is not so in the cases of Mexico and Canada. In fact, the U.S. has an open invitation for Canada’s accession (rather than merger).[2] People who presume that it was arrogant for the U.S. founders to invite Canada to accede as a state forget that the U.S. was formed by sovereign countries that became semi-sovereign states.

As the E.U. expands, it too draws on sovereign countries to become states through the process of accession (rather than merger). The planned referendum in Iceland was not on a merger of two countries. Iceland had submitted to the European Commission, the E.U.’s executive branch, an application for accession in 2009, but then unilaterally halted the process in 2015 even though 11 of the 33 “chapters” had been completed. As a sovereign nation, Iceland could indeed unilaterally stop the process, and when the Icelandic government announced the date for the upcoming referendum, the Commission could at most welcome the announcement. In doing so, a spokesman for the Commission said, “Iceland is a close and valued partner of the E.U. . . . Our cooperation is already strong and wide-ranging and we look forward to continuing and further strengthening our close cooperation with the Icelandic authorities.”[3] The word partner connotes distance as in the sense that Iceland is a sovereign country rather than an E.U. state. The word is problematic, however, in that it implies an equivalency. Even just in Iceland having submitted an application, a lack of equivalency is inherent to the relationship. Moreover, accession itself lacks equivalency because Iceland could become a state in the E.U., and no state is an equal partner with the union in which the state is a part, for a part and a whole cannot be equivalent.

The same held in the case of the U.S., which was formed first as a military alliance and then as a confederation of sovereign countries, and only on March 4, 1789 as a modern (i.e., dual sovereignty) federation of semi-sovereign states and semi-sovereign federal governmental institutions. In other words, the Articles of Confederation, which was ratified in 1781, was for a union of sovereign countries. Therefore, just as the U.S. was formed in 1776 (and continuing under the Articles) by sovereign countries, so too was the E.U. formed by sovereign countries. In both cases, sovereign countries, such as Iceland in 2026, because semi-sovereign states and thus parts of political unions. Accession itself is a distinctly political process.

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1. See Skip Worden, British Colonies Forge an American Empire: A Basis for Trans-Atlantic Comparisons (Seattle: Amazon, 2017)
2. Because Canada has expanded West since the 18^th century, Canada would most likely accede as three or four U.S. states rather than just one.
3. Gregoire Lory, “Iceland Plans August Referendum on Resuming EU Membership Negotiations,” Euronews.com, 3 March, 2026.

The European Commission: An Aggregate of the States?

The European Union’s governmental institutions are not limited to the European Council and the Council of Ministers, both of which represent the state governments directly at the federal level. Nor, moreover, is the E.U. an aggregation of its states. In foreign affairs, for example, the E.U.’s foreign minister, Kaja Kallas, can speak and take decisions on the basis of consensus rather than the unanimous consent of state-level officials being required. Therefore, the Von der Leyen administration did not overreach in taking the “decision to send the Commissioner for the Mediterranean, Dubravka Suica, as an observer to the first former gathering of the United States President Donald Trump’s Board of Peace” on 19 February, 2026.[1] That Suica was merely an observer suggests that the objecting state officials were overreacting as well as misconstruing the E.U. as a confederation of sovereign states.

The Board of Peace originated at the very least in part to guide the real-estate redevelopment in Gaza. Accordingly, a spokesperson at the Commission explained the E.U.’s interest as follows: “Our participation is really to be seen in the context of our long-standing commitment to the implementation of the ceasefire in Gaza, as well as our commitment to take part in international efforts when it comes to the recovery and reconstruction of Gaza. We do believe that we need to be at the table, otherwise we will simply be a payer and not a player.”[2] E.U. was at the time “the biggest donor of humanitarian aid to the Palestinian people, with a total contribution of €1.65 billion to the territories” since Israel’s genocide began.[3] Also, as many as 14 of the E.U.’s 27 states sent their own representatives to the meeting. Therefore, objections by a handful of states to the E.U.’s observer can be relegated as overblown and unjustified, and likely fueled in actuality by ideological objections to the U.S. federal president. That most of the state representatives at the meeting were diplomats or civil servants whereas the E.U. observer was a “political representative” is a petty objection, and thus likely a political subterfuge overlaying anti-American or anti-Trump resentment or jealousy. That the same people who objected to the “political representative” would likely insist that the E.U. was not a political union also points to a hidden agenda.

Regarding the E.U.’s executive branch itself, the European Commission, a state official of France, Jean-Noel Barrot, erroneously claimed that the approval of the E.U.’s state governments was required for the Commission to speak out or act in foreign policy. Slovenia’s Tanja Fajon even insisted that unanimous approval was necessary.[4] Such a view essentially places the Commission as subordinate to the Council of Ministers and ignores any lawful influence that the European Parliament might have with the Commission. The stances of the two state officials treat the E.U. as if it were a confederation—a mere aggregation of fully-sovereign states—rather than a modern federation wherein governmental sovereignty is “dual” rather than unitary.

To be sure, the European Council and the Council of the E.U. play a role in the setting of the E.U.’s foreign policy, and in those councils the principle of unanimity applies, but those two councils are not the exclusive setters of such policy; any executive branch has some leeway, and sending an observer to a meeting is hardly a substantive foreign policy, especially given the E.U.’s direct involvement in Gaza. Sending an observer can hardly be interpreted as an overreach in need of a unanimous decision by the Council of Ministers.

That some state officials were so interested in subordinating the E.U.’s executive branch to the Councils, while leaving the European Parliament out completely as if E.U. citizens had not voted for distinctly federal lawmakers suggests that the state governments have too much power (given their sense of entitlement) at the federal level. Switching foreign policy to qualified-majority voting in the Councils would be more in line with the fact that the E.U.’s foreign minister can indeed speak and act on the basis of consensus and with a nod to the distinctive foreign interests of the European Union, which the Councils cannot protect because they represent the state governments, which have their own interests. In short, neither the Commission nor the E.U. itself is a mere aggregate of the policies and interests of the state governments. Retaining the principle of unanimity in the Councils invites that mistaken view and thus qualified-majority voting is more consistent with the E.U. overall. For neither the Commission nor the Parliament is subordinate to either or both of the Councils as if the E.U. were a confederation of sovereign states.

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1. Mared G. Jones, “France Says Commission Lacks ‘Mandate’ to Join Board of Peace Meeting as Brussels Remains Defiant,” Euronews.com, 19 February 2026.
2. Ibid.
3. Ibid.
4. Ibid.

Is Europe in Civilizational Decline?

Does the E.U. itself instantiate a decline in European civilization? So says a National Security Strategy for the United States released by the Trump administration in December, 2025. That report also claims that migration to Europe was in the process of causing European nations to face “civilizational erasure.” That is to say, the European nation-state was by the end of 2025 facing existential threats due to the E.U. and migration. The report also highlights the loss of democracy in Europe, due both to the E.U. usurping the governmental sovereignty of the states and the clamping down on voices on the right in Europe. I contend that the report contains a sufficient number of fallacies that it can reasonably be dismissed as bias ideology under the subterfuge of national security.

The report “proposes to ‘cultivate resistance to Europe’s current trajectory within European nations.’”[1] This can be interpreted as an intent to aid Orbán’s anti-E.U. strategy in Hungary and to encourage other governors of E.U. states to resist the E.U.’s exercise of even its existing exclusive competencies, or enumerated powers (i.e., as per the dual-sovereignty feature of that federal system). To hamstring President Von der Leyen’s efforts to aid Ukraine, for example, “kills two birds with one stone,” as the saying goes, because in keeping the E.U. from strengthening, Ukraine’s strength against Russia is also held back.

The report finds “subversion of democratic processes” in Europe, and claims that the E.U. undermines “political liberty and sovereignty.”[2] This would be news to the European Parliament, whose representatives, like those in the U.S. House of Representatives, are elected directly by citizens and thus represent them, rather than even their respective states (the European Council and the Council of Ministers do the latter, as the U.S. Senate does in the U.S.). So, the E.U.’s bicameralism, if anti-democratic, means that the U.S. Congress also suffers a democracy deficit such that most Congressional powers should be returned to the American member states.

Whereas in confederal systems of public governance, democracy is only at the state level, which by the way is fine because the states retain all governmental sovereignty, federal systems characterized by dual sovereignty (i.e., governmental sovereignty being split or divided between the federal and state levels, or subsystems) should have democracy at both levels, rather than just at the state level. This is true of the E.U. grace á the European Parliament, even though its powers could stand to be augmented and those of the European Council lessened so as to enhance the democratic legitimacy of the E.U. even more.

Aside from the erroneous perspective that the E.U. is itself a reduction in European democracy, Trump’s claim that European migration policies had been “transforming the continent and creating strife, censorship of free speech and suppression of political opposition, cratering birthrates, and loss of national identities and self-confidence” also warrants critique.[3] Does the administration mean to claim that migration policies have been causing birthrates to drop? The application of reason alone can easily dispel such a claim. The same goes for self-confidence, though there may be more to the claim that mass migration dilutes national identities if enough of the new arrivals refuse to integrate culturally. Furthermore, such a dilution is qualitatively different than any from a new-found sense of identifying as Europeans, which, although coming along slowly, is facilitated by the very existence of the European Union. That is to say, even if cultural diversity within a member state is not desirable, identifying increasingly as European rather than merely by member state has the advantage of making war within at least Western Europe less likely in the future. Additionally, identifying culturally as a European can aid indirectly in efforts to enhance the E.U.’s foreign policy and defense competencies, given Russia’s invasion of Ukraine. Surely Europeans in some of the E.U.’s eastern states would not lament feeling more European and less exclusively of their respective states if that meant that the united action of the E.U. would be more likely to be augmented to include defense without state veto-power standing in the way at the federal level. In short, criticism of migration and the E.U. should not be conflated.

As for free speech, in 2025 it came under threat arguably more as anti-genocide protesters were being arrested as if they were promoting violence rather than protesting against Israel ironically for having been so violent, and with impunity internationally. That the Trump administration had been enabling Israel’s genocide and perhaps holocaust explains why the report ignores the arrests, especially in Germany and Britain, of human-rights protestors while complaining as if Orban has been made into a scapegoat in the European Union even though he has serially violated E.U. law. His support of Russia and criticism of Ukraine, no doubt related to Hungary’s reliance on Russian energy, may have something to do with the report’s “finding” that free speech in Europe has been compromised by forces on the political left rather than the pro-Zionist right. Recently, I encountered such denialism in a coffee shop from a native South African man, whose daughter attends Columbia University. The man insisted that all of the images of destruction in Gaza have been created by AI, and that in actuality, the residents there have been eating well. Regardless of our political disagreement regarding enabling a genocide, I was stunned that his perspective was so divorced from even credible media reports. A European reading Trump’s National Security report might have the same reaction, especially concerning migration causing a drop in birthrates. Such denialism, from ideology, with even credible, mainstream journalism being relegated as illusionary, may be the real sign of a civilizational decline.

Given the impotence of the United Nations to combat the militaristic aggressiveness of Israel and Russia, the collective action that is possible by means of the E.U. can be regarded as a good thing, even though the member-states, or “nations,” would need to give over more governmental sovereignty. Due to the existence of the European Parliament, a democratic legislative chamber, a transfer of additional governmental sovereignty from the states to the Union would not mean that Europe is less democratic. In fact, adding the Parliament to state legislatures means more democracy, with democracy being able to exercise more of a check on itself (i.e., the Parliament on the state legislatures).  Of course, no political union is perfect, or ever can be, and the Parliament could stand to be given more authority in the making of law, so to strengthen the democratic institution at the federal level. Were the Trump administration really for democracy in Europe, the report would include this proposal rather than go with the erroneous claim that democracy only exists, or should only exist, at the state level. Moreover, were the Trump administration to avoid making political category mistakes, the report would compare the E.U. with the U.S., and thus be able to make helpful proposals to strengthen both unions of states. Even though Europeans may bristle at this axis of comparison, my motive in writing is to make such proposals for the good both of Europeans and Americans, for we are more alike in what we value than we sometimes realize.

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1. Andrew Naughtie, “Trump Administration Warns Europe of ‘Civilisational Decline’ in New National Security Strategy,” Euronews.com, 5 December 2025.
2. Ibid.
3. Ibid.

Pulling the Curtain Back on President Biden’s Retirement Address

There is an expression in politics referring to how legislation is made; it is likened to the making of sausage, the public display of which is not generally desired. Furthermore, it is unrealistic and even counter-productive for the American electorate to know the intricate mechanisms by which a bill makes its way through Congress before being signed by the president to become a law. Nevertheless, the strategic and self-interested manipulation of public perception by elected representatives in order that the electorate will have an overstated positive view of its representatives, who can have more discretion and thus power with the vote of confidence, is counter to an effective democratic republic, which after all is distinct from direct democracy. I contend that the desire to falsely manipulate popular opinion went into President Biden’s address on his decision to serve only one term, as well as in the comments of high ranking members of his party in support of his decision not to run for reelection. That there might be more political capital, not to mention a better legacy, in being straight with the American people is a possibility that seems to elude American politicians.

American political philosophy posits unintentional beneficial consequences from the pursuit of self-interest, which springs from self-oriented love, as does Adam Smith’s price-oriented theory of competitive markets. That such benefits are possible does not mean that a self-centric pursuit of one’s interest is itself normatively good, and thus laudatory. Indeed, Smith is careful to condition even the unintended beneficial economic consequence of the individual’s pursuit of one’s interest on the presence of competition wherein no individual seller, or oligopolistic group thereof, can sent a price by fiat. Smith even enveloped his economic theory on his other major work, The Theory of Moral Sentiments, the title of which speaks for itself even if such sentiments are in practice hardly strong enough against the love of greed even in a competitive market. Translated into political terms, the check-and-balance vital function in the separation of powers, or branches, of the U.S. Government, and even between the governments of the member states and that of the union, is an institutional means by which the ambition of individual representatives and even governmental bodies can be held back from overreaching at the expense of the liberty of the people. It is vital that the self-interest qua political ambition of elected representatives (as well as their respective appointees) be held in check not only by criminal law, but also by the very arrangement of political institutions within a government, and even between governments in a federal system. 

Of course, in addition to institutional checks and balances, elections should have consequences. An officeholder who deftly trades monetary favors (aka campaign contributions) for support on legislation favorable to the private interest (and thus the officeholder’s own interest in gaining more power) but unfavorable to the public interest or at least the interests of the electorate can be voted out of office at the next election. However, the stealth that the elected representatives usually use to enact such private trades render the electorate’s judgment and thus decision suboptimal. In short, a lot goes on behind the scenes that is pertinent to an electorate’s ability to exercise effective judgment in holding officeholders accountable from the standpoint of the electorate’s interests. It is in the political interest of elected representatives to create and sustain the impression publicly of being worthy of the public trust, so more is needed to counter this natural inclination among the powerful in line with the central principle of a republic that the electorate—the popular sovereign—is superior to its elected representatives—the governmental sovereign. For an agent to willfully mislead a principal, taking advantage of there being too much “daylight” existing between an elected representative and the electorate, is essentially to turn a republic upside down.

Speaking from the Oval Office on television on his decision not to run for reelection, U.S. President Joe Biden said that “saving our democracy” is “more important than any title.”[1] Actually, former U.S. presidents were in the practice of retaining the title. At the time, President Carter, President Bush, President Clinton, and President Obama were still alive. So, President Biden could expect to continue to be referred to as such after his term as president. It was power that he was giving up by not running for reelection. Although he casted his decision as one of voluntarily putting the interests of his party and country above his political ambition, the fact what that his two top advisors had just days earlier explained to him why it was virtually impossible for him to win reelection. Additionally, according to CNN, “Former House Speaker Nancy Pelosi privately told President Joe Biden . . . that polling shows that the president cannot defeat Donald Trump and that Biden could destroy Democrats’ chances of winning the House in November.”[2] The press also reported that Pelosi also told the president that she would make the polling numbers public if he did not bow out on his own within in a week or so. Because the president took “the easy way” rather than “the hard way,” Sen. Chuck Schumer, the Democrats’ majority leader in the U.S. Senate, used a press conference to characterize Biden’s decision as selfless and patriotic, when it was actually a realistic assessment that he would lose power anyway by losing the election. Because Biden took Pelosi’s “easy way” to make the decision on his own, Schumer even said that he “deeply” loved the president. If it was love, it was a very conditional sort.

As if Schumer’s declaration of love were not over the top enough, Biden “presented himself as a truth-teller” during his address. He even said, “The truth is that the sacred cause of this nation is bigger than any one of us,” as if he had just selflessly given up power to save democracy in America from a tyranny under Don Trump rather than just been shown the exit by the other top leaders of the Democratic Party.[3] He made no reference to his elderly infirmities and how they could be expected to be worse during a second term, or the intractable electoral math, which in turn was due to the obvious display of the toll that age had already taken on his body during the presidential debate a month earlier.

In short, he was essentially pushed out by his own party because he refused to do the responsible (and selfless) thing by leveling with the American people that he should not serve a second term even if he could. His decision was not really voluntary, as if he was giving up something that he could otherwise have (a second term). His decision was neither selfless nor patriotic, for he had held on to his nomination even when it was clear that he would be too old to be president in a term that would not even begin for six months. He did not “fall on his sword.” Like Schumer’s false declaration of “deep love” for the president, Biden’s claim of giving up power for the good of his party and the nation was a lie, even as he had the audacity to say in his brief address, “When I was elected, I promised to always level with you, to tell you the truth.”[4]

My point is not to criticize Joe Biden or even other leaders of the Democratic Party. Decades earlier, when I was a student at Yale, I had been very impressed in a small-group setting—at what used to be called Master’s Teas at Yale—listening to Sen. Biden discuss the federal deficits and debt and the implications for the international financial system. I raise the case of his public address on his retirement from politics to make a broader claim.

The president said in his address, “The great thing about America is here, kings and dictators do not rule. The people do. History is in your hands. The power is in your hands. The idea of America—lies in your hands.”[5] This case shows just how much the people’s elected representatives can mislead the people in civic matters. The reality behind President Biden’s decision not to run for reelection was much different, much less stellar, than what the president and many elected Democrats presented to the people. The upshot is that the elected representatives, including the president of the United States, are less saintly—less willing to be selflessly patriotic—than the electorate has been led to believe. The need to keep an eye on officials is greater than what is implied by Biden’s address. Government of the people, through elected representatives, is not at altruistic as the political elite, for selfish reasons, would like the people to believe. Rather than trying to save American democracy, Pelosi and Schumer did not want to see the president’s reelection campaign result in Republican control of both chambers of Congress. This issue here is thus not Joe Biden, or even the Democratic Party; rather, the problem is how little the American people actually see and know of the real motives and strategies of the political elite, which includes both parties.

Assessing candidates at election time is likely not as effective as the American electorate  believes on account of being subtly manipulated from afar; more is kept from the electorate than it realizes concerning the people running for public office. On Capitol Hill and in the West Wing, more effort than the American people realize is put into how things will be perceived by the people. For example, it is enough that the people perceive members of Congress being vocally critical of powerful CEOs, such as Lloyd Blankfein of Goldman Sachs in the wake of the 2008 financial crisis and Mark Zuckerberg of (formerly) Facebook during the user-data privacy scandal, who contribute lots of money to political campaigns (which generally is not well publicized), without actual legislation being enacted contrary to the financial interests of the CEOs or their companies. It is enough that the public sees angry elected representatives. The superficial implication is that they are protecting the public interest so the electorate can have confidence in its public officials rather than having to double the effort to disentangle big business from Congress and the White House.

To put a private, or partial, interest above the public good is to doom the later to interests that care little of the good of the whole relative to the welfare of the part. The good of a whole is never the same as that of one of its parts unless all of the parts are identical. The interests of the United States do not reduce to those of Texas any more that those of the European Union reduce to those of France. This is why the political dominance of a large state in either union at the federal level is problematic, such as was evinced by Germany in E.U. policy during the European debt crisis.

The private (including political) interests of an elected representative are, I submit, not generally speaking well known by voters, who in turn are tasked with assessing the qualities of candidates rather than merely voting on policy positions. Perhaps more of the latter could be decided by referendum, leaving to elections the primary matter of the sort of people who are to be elected to serve the public interest. Moreover, popular sovereignty could stand to be strengthened, given the distance between elected political elites and their electorates. Simply put, that distance should be reduced, and journalism can go only so far, especially with journalists relying of officeholders for interviews.

In the film, The Wizard of Oz, Dorothy’s dog Toto pulls open the curtain that had been hiding the actual Wizard from view. Pay no attention to the man behind the curtain! This is one of the all-time iconic lines in cinema. And Toto too! is not far behind. It is in the Wizard’s interest to keep his actual condition—that he is just a person rather than a giant head with raging flames on both sides—hidden from view so he can continue to exercise extraordinary power by instilling fear. It is interesting to ponder what this uncovering might look like writ-large in America’s representative democracy. I submit that pulling open the curtain that acts as a beltway around Washington D.C., formerly a swamp, is vitally needed to restore the proper relationship between popular and governmental sovereignty in the United States.

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1. Eli Stokols and Lauren Egan, “Biden Is Passing the Torch ‘to Unite Our Nation,” Politico, July 24, 2024.
2. M.J. Lee, Jamie Gangel, and Jeff Zeleny, “Pelosi Privately Told Biden Polls Show He Cannot Win and Will Take Dow the House; Biden Responded with Defensiveness,” CNN, July 18, 2024.
3. Eli Stokols and Lauren Egan, “Biden Is Passing the Torch ‘to Unite Our Nation,” Politico, July 24, 2024.
4. Ibid.
5. Ibid.

The Israeli Supreme Court’s Conflict of Interest as Unreasonable

Ironically, in making the ruling on New Year’s Day of 2024 striking down Prime Minister Netanyahu’s amendment to the country’s basic law that would have removed the judiciary’s authority of judicial review of laws based on their reasonableness, Israel’s Supreme Court too unreasonably exploited a conflict of interest. Basic Law, which is essentially constitutional law, includes the basic architecture of a government, such as how the executive, legislative, and judicial functions are related. Self-interest being a salient feature of human nature, we can assume that the governmental functionaries in each of those functions naturally seek to expand their respective jurisdictions relative to those of the other two. I contend that to give one or two of those areas the last word in altering the division of authority involves a conflict of interest. This applies to a constitutional court. Therefore, even though democracy is served by a judicial decision striking down an attempt by the executive and/or legislature to eviscerate the authority of the judiciary to act as a check, giving the latter the last word is fraught with entanglements. 

By eight to seven justices, the court ruled “that a government amendment to the so-called reasonableness law should not stand. The bill had stripped the Supreme Court of the power to declare government decisions unreasonable.”[1] That very officials who make government decisions in the Knesset passed the basic law can be seen as problematic. It was essentially a power-grab by the executive/legislative domains at the expense of the judiciary. Although the court “rejected the amendment because it would deal a ‘severe and unprecedented blow to the core characteristics of the State of Israel as a democratic state,’”[2] the naked power-grab could itself be viewed as unreasonable, even taking for granted the element of power-aggrandizing in governing. The court could also have ruled on the basis of there being an institutional and personal conflict of interest, but the court itself could be charged with the same offense in deciding the matter. It is just this conflict of interest that flew below the media’s radar (and got me to writing).

Even though the ruling did not expand the court’s authority, the decision arrested a decrease, and was thus in the personal and institutional interest of the judiciary in terms of power. Just as the majority in the Knesset had acted in its interests, the majority on the court did as well. The matter was thus a power struggle, and thus giving one side the final, definitive say is unfair. The ruling cites the importance of judicial review of laws passed by the Knesset as being in the broader interest of democracy in Israel, but the relatively narrow personal and institutional interests of the justices and their court could be expected to be exploited, and this may be the real reason for the ruling. To be sure, an independent judiciary is indispensable for the executive and legislative functionaries to be held accountable. Although they could argue that the voters could perform that function at election-time, elections do not include sending corrupt officials to jail, and the sitting Prime Minister was charged with corruption judicially at the time that he was steering the bill to passage (which counts as a personal conflict of interest). Even if the court’s democracy argument is solid, the personal and institutional conflicts of interest in the justices resisting a restriction on the purview of their judicial authority are inherently unethical and thus should be obviated if possible. 

The inherency is explained by just how inherent the self-interest to exploit a conflict of interest, whether personal or institutional, is in human nature.[3] Without doubt a conflict of interest that actually has been exploited is unethical because a private or relatively narrow benefit is put before a public or relatively broad benefit or duty.  

In judicial language, strict scrutiny should therefore be applied to unilateral decisions by legislative, executive, or judicial functionaries or “branches,” of government that self-aggrandize authority at the expense of one or two of the other “branches.” I recommend that such conflicts of interest be obviated by putting such matters to the electorate. So this is not merely a rubber-stamp of the majority parties, a 2/3 majority should be required to change Basic Law. Otherwise, we are left with the unsavory alternative of having the contending governmental interests play out their internecine power-struggles on the constitutional stage with one such interest having to have the final word, which is unfair to the other interests. In a democracy, after all, popular sovereignty is more fundamental than governmental sovereignty.

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1. Rob Picheta, Amir Tal, and Lauren Izso, “Israel’s Top Court Strikes Down Key Part of Judicial Overhaul, Reigniting Divisions as War Rages,” CNN.com, January 2, 2024.
2.  Ibid.

3. Skip Worden, Institutional Conflicts of Interest, available on Amazon.

The Electoral College: Beyond the Conventional Wisdom

The matter of how the U.S. President is to be selected was a tough nut for the delegates in the Constitutional Convention in 1787 to crack. Mason observed the following in convention, “In every Stage of the Question relative to the Executive, the difficulty of the subject and the diversity of the opinions concerning it have appeared.”[1] The alternative proposals centered around the Congress, State legislatures, the governors, the people, and electors designated for the specific purpose as the possible determiners. Although the delegates were men of considerable experience, their best judgments about how the alternatives would play out were subject to error as well as the confines of their times. In re-assessing the Electoral College, we could do worse than adjust those judgments and rid them of circumstances pertaining to them that no longer apply. For example, the Southern States no longer have slaves, so the question of whether those States would be disadvantaged by going with a popular vote no longer applies; the alternative of going with the popular vote nationwide no longer suffers from that once-intractable pickle. Yet lest we rush headlong into a popular vote without respect to the States, we are well advised not to dismiss the points made by the convention delegates, for we too are constrained by our times, and we may thus not be fully able to take into account points that have been forgotten. Before turning to the views expressed at the convention, I briefly touch on the Electoral College. I discuss the apparent dichotomy between the College and popular vote, after which I discuss the relevance of federalism.

 

American citizens vote for slates of electors by state, and those electors then meet, again by state, to cast votes for the U.S. President. Because the electors are elected by popular vote, the dichotomy between the Electoral College and the popular vote is misleading. The question regarding the false dichotomy is actually whether to go with the popular vote by state or nationally. To be sure, electors in four states do not have to vote according to the popular vote in the state, and electors in the other states can vote contrary to that vote in those respective states but must pay a fine. The point lost on most Americans by the twenty-first century is that one of the original selling points of the Electoral College was that the electors could be a check on the momentary passions of the masses precisely by being able to vote contrary to the popular vote in electors’ respective states. Should the U.S. be attacked and the citizens have an emotional reaction to go to war, electors could say, in effect, “well, I’m not so sure we should go with the war hawk.” In short, the Electoral College is geared to protecting the best interests of the people even if they are blinded to it.

 

The Electoral College also gives some heed to the sovereignty retained by the States as members of the U.S. The U.S. Senate is the federal institution that represents the republics. In the College, the number of electors a State has equals the number of its U.S. senators and House representatives. Because this number is not by population and each State has two federal senators, less populated States have disproportionately more electors than the big States do. Besides the fear at the convention that the “big” States might pick the president either by electors or if by a national-level popular vote, the sovereignty retained even by the “small” (i.e., less populous) States warrants some role in the selection of the executive of the Union. To dismiss this point is to ignore what the U.S. is as a Union composed of semi-sovereign States. What I’m getting at here is that to dismiss these ongoing reasons for the Electoral College is to forget what the U.S. is (or are). When you no longer know what you are, you can be in real trouble when you act. Hence, it behooves us to take seriously the various points (and alternatives) discussed and debated in the convention. The answer may not be the Electoral College. In this case, the status quo is broken. In fact, the Electoral College has never performed as intended—most significantly in this regard as a check on “excess democracy” that can come with direct democracy even at the voting booth. Yet this does not necessarily mean that shifting from state popular votes to a national popular vote is wise. Considering the points raised by delegates in the federal convention, hidden downsides to a national popular vote can be seen, and this in turn may precipitate new ideas that are optimal. I turn now to the delegates in hopes that their wisdom might inform our public discourse on the topic.

 

Franklin, being quite elderly by the time of the convention, could afford to sit back above the debate and see the “big picture” in terms of democratic theory. “It seems to have been imagined by some that the returning to the mass of the people was degrading the magistrate. This he thought contrary to republican principles. In free Governments the rulers are the servants, and the people their superiors & sovereigns.”[2] The question of whether or not the people have what it takes to select a capable person of good character and standing for the presidency was debated at several points during the Convention. Referring to the federal executive, Morris urge, “He ought to be elected by the people at large. If the people should elect, there will never fail to prefer some man of distinguished character, or services; some man, if he might so speak, of continental reputation.”[3] Similarly, Madison said: “The people at large was . . . as likely as any that could be devised to produce an Executive Magistrate of distinguished Character. The people generally could only know & vote for some Citizen whose merits had rendered him an object of general attention & esteem.”[4] Already, these delegates were anticipating the expansion westward of the then-Thirteen-State Union. Morris and Madison were assuming that anyone attracting enough votes across a continent to win must be renowned, and thus distinguished of character or significant accomplishment.

 

Yet given the vast number of voters spread over a vast territory, or country, the sheer distance between the electorate and the candidates would mean the former could not really size up the latter. Mason “conceived it would be as unnatural to refer the choice of a proper character for chief Magistrate to the people, as it would, to refer a trial of colours to a blind man. The extent of the Country renders it impossible that the people can have the requisite capacity to judge of the respective pretensions of the Candidates.”[5] Lest it contended that the modern media closes in the distance, the media companies and their journalists and commentators have their own agendas and ideological biases, and the concentration of the media has enabled “groupthink,” wherein the public “airwaves” are unanimous in a judgment, even if very wrong as in the prediction of a near-certain Clinton landslide in 2016. Democracy at the empire-scale is not at all optimal.

 

Unfortunately, a relatively few “designing” men—or associations thereof—could take advantage of the sub-optimality. Gerry suggested that private associations not confined by State could take advantage of the problem. “A popular election in this case is radically vicious. The ignorance of the people would put it in the power of some one set of men dispersed through the Union & acting in Concert to delude them into any appointment.”[6] Such a “set of men” might in modern terms be a large corporation, or even an oligarchy. That is to say, large concentrations of private wealth could profit politically from the electorate being so large and dispersed.

 

That the U.S. was and is an empire not only in scale, but also in that it is made up of (early modern) “kingdom-level” polities (i.e., States) that differ culturally, just as the E.U.’s States do, presents additional problems for the popular election of the federal president. Sherman got at this when he said that “the people at large . . . will never be sufficiently informed of characters, and besides will never give a majority of votes to any one man. They will generally vote for some man in their own State, and the largest State will have the best chance for the appointment.”[7] The people cannot really get a sense of a candidate’s real character through the media—and almost the entire electorate could not possibly meet the candidates in person. Furthermore, the expanse of territory and the difficult cultures mitigate against a candidate being of such a reputation as to be acceptable in all of the States. In fact, the largest States in population could dominate the elections. To wit, Williamson claimed, “The principal objection [against] an election by the people seemed to be, the disadvantage under which it would place the smaller States.”[8] Pinkney got at the both points—that such a large, extended electorate could be easily manipulated and the electorates in the large States could dominate.  “An Election by the people being liable to the most obvious & striking objections. They will be led by a few active & designing men. The most populous States by combining in favor of the same individual will be able to carry their points.”[9] Williamson combined the “large State” problem with the extent of territory mitigating the chances of there arising a reputation of sufficient reach. “There are at present distinguished characters, who are known perhaps to almost every man. This will not always be the case. The people will be sure to vote for some man in their own State, and the largest State will be sure to succeed.”[10] In modern America, candidates would need only campaign along the crowded Northeast coast, the Bay Area in California, Southern California, and Chicago to get a majority of the popular vote. People in the rest of the States would be left out except for cases in which the election is close.

Dickenson had an interesting idea. Although he “leaned towards an election by the people which he regarded as the best & purest source” he surmised the greatest difficulty was “the partiality of the States to their respective Citizens. But, might not this very partiality be turned to a useful purpose. Let the people of each State chuse its best Citizen. The people will know the most eminent characters of their own States, and the people of different States will feel an emulation in selecting those of which they will have the greatest reason to be proud. Out of the thirteen names thus selected, an Executive Magistrate may be chosen either by the [National] Legislature, or by Electors appointed by it.”[11] What would keep the candidates from the largest States from winning election after election? 

Of all of those objections, I submit that the sheer size of the voting electorate—around 120 million in 2016—is the largest drawback of popular election. The problem is reflected in the extraordinarily long “campaign seasons”—16 months in the case of the 2016 presidential election—as candidates must campaign in what in Europe would be “country after country.” Even so, so very few voters can possibly have first-hand knowledge of even just one of the candidates that the electorate as a whole is left at the mercy of the concentrated media and the marketing-driven campaigns. The electorate in 1920 did not knew that Warren Harding had been a patient in a mental hospital five times, and Richard Nixon’s rather severe pathology only came to light after the Watergate scandal. For all the electorate knows, a candidate could be acting—even, as in Ronald Reagan’s case, be a professional actor.

 

We can expect the inordinate, self-invested influence of giant corporations and, moreover, the infamous “1 percent” because they know how (and have the means) to use the media to “steer” the public discourse and finance the candidates launching empire-scale campaigns. That the concentrated media companies are also large corporations does not reduce the risk of the onslaught of plutocracy by taking advantage of what the delegates sometimes called “excess democracy.” That the electorate can be so easily manipulated gets scant attention.

 

Thomas Jefferson and John Adams agreed in retirement that an educated and virtuous citizenry is essential for an ongoing republic. We the American electorate better educated at the very least in civics, the people could better fend for themselves against designing corporations and demagogues. Hence, Gerry pointed to a real problem: “The people are uninformed, and would be misled by a few designing men.”[12] He felt the problem so grave that the “popular mode of electing the chief Magistrate would certainly be the worst of all.”[13] We are dependent on the media and the candidates’ marketing campaigns. By in large, we see what the candidates and journalists want us to see. Hence, Mason observed, “It has been proposed that the election should be made by the people at large; that is that an act which ought to be performed by those who know most of Eminent characters, & qualifications, should be performed by those who know least.”[14] Mercer insisted that the “people can not [sic] know & judge of the characters of Candidates. The worst possible choice will be made.”[15] Doubtless this opinion would resonate with a considerable number of the electorate in 2016 of both parties.

 

Unfortunately, rarely do advocates of a nationwide popular vote take into account how grave those concerns were in the convention, and thus how many (but not all!) of the delegates felt about an empire-wide popular vote. It’s much more convenient to feel a sense of entitlement that throws caution to the wind. Hence the shared advice from Jefferson and Adams. So I think Morris got it backwards in saying, “It is said the people will be led by a few designed men. This might happen in a small district. It can never happen throughout the continent.”[16] In a small district (i.e., a small electorate), a larger proportional of the electorate have direct knowledge of the candidates, and so can dodge the “designing” ones. It follows that the relatively small number of electors in the Electoral College is within range of being able to “meet and greet” the candidates and their close friends (and detractors). Yet this assumes that the electors are independent not only of the majority of voters in the respective States, but also the political parties, and this has not been so since the College’s first day on the job.

 

The delegates at the convention considered other ways in which a relatively small number of people could select the federal president. Certainly having the Congress select would eliminate the problem of the selectors not being able to know (or get to know) the candidates. Additionally, the members of Congress could see to it that the candidate selected can execute the laws that the Congress legislates. After all, the delegates understood the purpose of the U.S. president to be “to carry into execution the [national] laws.”[17] According to Pinkney, “The Nat’l Legislature being most immediately interested in the laws made by themselves, will be most attentive to the choice of a fit man to carry them properly into execution.”[18] This could mean, however, that the legislature would be able to exercise control over the executive.

Hence Morris warned the other delegates, “If the Executive be chosen by the Nat’l Legislature, he will not be independent [of] it; and if not independent, usurpation & tyranny on the part of the Legislature will be the consequence.”[19] The check and balance that the separation of powers affords would be lost. As Morris explained, “the checking branch must have a personal interest in checking the other branch, one interest must be opposed to another interest. Vices as they exist, must be turned [against] each other.”[20] Hoping to be re-elected, or having to honor deals made with particular members of Congress in order to get elected in the first place, the president would not have a personal interest in checking the federal legislature even were it to over-reach at the expense of the liberties of the people. Hence, “A particular objection with [Wilson] against an absolute election by the [legislature] was that the [executive] in that case would be too dependent to stand the mediator between the intrigues & sinister views of the Representatives and the general liberties & interests of the people.”[21] Maintaining the liberties is of course the aim of the checks and balances in the separation of powers. Madison put the matter well. “If it be essential to the preservation of liberty that the [Legislative, Executive and] Judiciary powers be separate, it is essential to a maintenance of the separation, that they should be independent of each other. The Executive could not be independent of the Legislature, if dependent on the pleasure of that branch for a reappointment . . . a dependence of the Executive on the Legislature, would rending it the Executor as well as the maker of laws . . . then according to the observation of Montesquieu, tyrannical laws may be made that they may be executed in a tyrannical manner.”[22]

A second major problem with having Congress select the federal executive is that the choice could invite corruption. Morris predicted, “If the Legislature [i.e., the Congress] elect, it will be the work of intrigue, of cabal, and of faction; it will be like the election of a pope by a conclave of cardinals; real merit will rarely be the title to the appointment.”[23] According to Madison, “the candidate would intrigue with the Legislature, would derive his appointment from the predominant faction, and be apt to render his administration subservient to its views.”[24] Ingenuously, Morris flipped the argument back to the people deciding:  “The people of [the most populous] States cannot combine. If their [sic] be any combination it must be among their representatives in the Legislature.”[25]  Furthermore, “It is said the multitude will be uninformed. It is true they would be uninformed of what passed in the Legislative Conclave, if the election were to be made there; but they will not be uninformed of those great & illustrious characters which have merited their esteem & confidence.”[26] Morris could be right about a legislative conclave and yet wrong on the popular election if he did not take into account the future westward expansion of the Union across (and beyond!) the continent.

A third problem with having Congress select the president can be labeled an opportunity cost. Simply put, all the divisiveness of the contest for the high office could compromise the ability of legislators to work together on legislation. Of the “insuperable objections” to the Chief Magistrate being elected by the National Legislature,” Madison claimed that “the election of the Chief Magistrate would agitate & divide the legislature so much that the public interest would materially suffer by it. Public bodies are always apt to be thrown into contentions, but into more violent ones by such occasions than by any others.”[27] Just imagine the 2016 general election campaigns of Hillary Clinton and Donald Trump infecting Congress—what that would have done to the members of that institution!

 

Besides the popular vote and Congress, the delegates also debated whether state legislatures or governors should select the federal president. Such an approach enjoys the support of federal theory, especially as it was known at the time of the convention when federalism applied to international alliances such as the Netherlands, Switzerland, and Germany, which were had been considered empires in the Middle Ages. By the time of the convention, those polities had become nation-states equivalent to the Early Modern kingdoms such as the UK and France, and this might have been why the delegates believed putting a national government at the federal level would be workable.

 

Yet federal theory still maintained that the first level of polities in a federation selects the officials at the federal level. In the case of the U.S., this would mean that the State legislatures or executives would select the federal president, whereas the people would of course elect the State-level officials. So democracy itself would be maintained; elected State officials would select the federal president. Bringing in the bit about smaller electorates being closer to candidates for public office (i.e., at the local and State levels), the federal theory’s rationale can be understood to be the following: The people are more likely to get good people into the State-level offices, so the people can have confidence in those officials as selectors of the federal president. That the number of state officials—especially governors—is much less than the American electorate as a whole means that the problem of the large electorate is also avoided. To continue to have a federal system yet dismiss federal theory is like a person who acts as if she no longer knows who she is. Such a person is likely to get into trouble.

 

To be sure, leaving the decision to State legislatures or governors is not without pitfalls. Also, complicating the traditional federal theory is the delegates’ decision to add a directly-elected body of representatives to the federal level: The U.S. House of Representatives. The federal government would represent the people and the States—the latter being the members of the U.S. Senate, a body founded on international-law principles. As Elseworth explained, “We were partly national; partly federal. The proportional representation in the [U.S. House of Representatives] was conformable to the national principle & would secure the large States [against] the small. An equality of voices [in the U.S. Senate] was conformable to the federal principle and was necessary to secure the Small States [against] the large.”[28] By “federal” here is meant international. Hence, the equality of votes for each State in the U.S. Senate comes out of international law (e.g., alliances, and international organizations including the United Nations). This “partly national; partly federal” applied to the federal level is how the convention advanced federal theory. This advancement complicated matters in the convention. A State’s number of electors voting in the Electoral College, for example, equals the number of U.S. House representatives whose districts are within the State plus the number of federal senators, so the Electoral College was designed to take into account both bases of the federal legislature: the people and the States—or, in other words, the “partly national, partly federal” nature of the U.S. Government. Reducing the Electoral College to the nationwide popular vote would ignore the ongoing federal element. This could certainly happen if few voters are aware of the international component of the U.S. Government (e.g., a Union of semi-sovereign republics), and, moreover, of the balance therein.

 

Regarding the appointment of the National Executive by the States’ legislatures, Madison believed this option to be objectionable. “The Legislatures of the States had betrayed a strong propensity to a variety of pernicious measures. One object of the [National Legislature] was to [control] this propensity. One object of the [National] Executive, so far as it would have a negative on the laws, was to [control] the [National] Legislature, so far as it might be infected with a similar propensity. Refer the [appointment] of the [National] Executive to the State Legislatures, and this [controlling] purpose may be defeated. The Legislatures can & will act with some kind of regular plan, and will promote the [appointment] of a man who will not oppose himself to a favorite object. Should a majority of the Legislatures at the time of election have the same object, or different objects of the same kind, [the national] Executive would be rendered subservient to them.”[29] In hindsight, considering the extent of consolidation of power at the federal level, perhaps had the State legislatures selected the president the federal system itself would be more balanced today. Also, the State legislatures would not have been so left out—whereas in the E.U. they play a direct role at the federal level.

 

In the convention, Gerry “moved that the [federal] Executive be appointed by the Governours & Presidents of the States.”[30] What we moderns know as a governor is essentially a president at the State level. At the time of the convention, New Hampshire had a president. Gerry’s rationale is symmetrical, and thus interesting. “He urged the expediency of an appointment of the [federal] Executive by Electors to be chosen by the State Executives. The people of the States will then choose the 1^st branch [i.e., the U.S. House of Representatives]: The legislatures of the States the 2^nd branch of the National Legislature [i.e., the U.S. Senate, the senators of which were selected by the State legislatures until 1913], and the Executives of the States, the National Executive. This he thought would form a strong [attachment] in the States to the National System. The popular mode of electing the chief Magistrate would certainly be the worst of all.”[31] It might be added: from this perspective, having the people vote for the federal president does not make sense because it is out of step with the symmetry. The U.S. House of Representatives was intended to be the place for representative democracy at the federal level—like the European Parliament in the E.U. The U.S. Senate, like the European Council (and the Council of Ministers) was to represent the state governments, so they could protect their retained sovereign powers. It made sense to Gerry that the State executives would select the federal executive. But why through electors?

 

Madison provides the rationale: “An appointment by the State Executives, was liable among other objections to this insuperable one, that being standing bodies, they could & would be courted, and intrigued with by the Candidates, by their partizans, and by the Ministers of foreign powers.”[32] When Barak Obama resigned as a U.S Senator of Illinois to become the U.S. President, the governor of Illinois tried to sell the empty senate seat to the highest bidder. Gerry was doubtless worried that governors would sell their vote to the highest bidding candidate for president. Electors would provide some insulation, yet they too could be swayed.

 

We can see this from Williamson’s view on electors being chosen by state legislatures. “He had no great confidence in the Electors to be chosen for the special purpose. They would not be the most respectable citizens; but persons not occupied in the high offices of Govt. They would be liable to undue influence, which might the more readily be practised as some of them will probably be in appointment 6 or 8 months before the object of it comes on.”[33] Butler, on the other hand, thought “the Govt should not be made so complex & unwieldy as to disgust the States. This would be the case, if the election [should] be referred to the people. He liked best an election by Electors chosen by the Legislatures of the States.”[34] But it seems to me that the addition of electors only to elect the federal president makes the system more complex and unwieldly. The experience of the Electoral College quickly showed how easy it was for the major political parties to dominate the slates of electors per candidate; it isn’t even a question of corruption, and there is little chance that said electors could provide a check on the passions of the people.  

 

Hence Madison preferred popular election (i.e., nationwide popular vote). “The option before us then lay between an appointment by Electors chosen by the people—and an immediate appointment by the people. He thought the former mode free from many of the objections which had been urged [against] it, and greatly preferable to an appointment by the [national] Legislature. As the electors would be chosen for the occasion, would meet at once, & proceed immediately to an appointment, there would be very little opportunity for cabal, or corruption. . . . The remaining mode was an election by the people. . . With all its imperfections he liked this best.”[35] There being no political parties by the time of the convention in the U.S., Madison could not have foretold the fate of the electors at the hands of the parties, and yet he preferred election by the people anyway. Two difficulties he thought had weight. “The first arose from the disposition in the people to prefer a Citizen of their own State, and the disadvantage this [would] throw on the smaller States.”[36] The second difficulty “arose from the disproportion of qualified voters in the N. & S. States, and the disadvantages which this mode would throw on the latter.”[37] Only the first objection still exists, as candidates needing only a majority of the nationwide vote could treat many of the less-populated States as fly-over territory devoid of merit politically speaking. That those States, including their respective citizens, are also part of the Union—and more specifically part of the federal system—should give us pause as to the implications of Madison’s preference. Madison “thought too much stress was laid on the rank of the States as political societies.”[38]

 

Some delegates viewed the existing States as artificial political societies, and thus as unnecessary obstacles. Morris insisted that “State attachments, and State importance have been the bane of this Country.”[39] It is as if the States existed solely because their respective government officials did not want to lose their power. “Can we forget for whom we are forming a Government?” Wilson asked. “Is it for men, or for the imaginary beings called States?”[40] The States then existed, so in what sense would they have been imaginary? Furthermore, having territory even just on the scale of the thirteen States at the time, and more definitely across a continent, the United States must naturally contain much diversity in going from place to place. Madison pointed out that “the States were divided into different interests not by their difference in size, but by other circumstances.”[41] He points to climate, but we can add religion, political ideology, and industry as differing across large expanses of territory. It is natural, therefore, that political societies would emerge. Were there no such polities, the United States with only “one size fits all” centralized laws would suffer increasing political pressure building up from the unexpressed diversity that cannot but exist at such a scale as across (and beyond) a continent. In other words, one size does not fit all where the size of the polity is so large that there must be significant ideological/cultural differences from region to region.

 

One of the main benefits of a federal system is in fact that it enables the political expression of the diversity that is necessary in an empire-scale country or alliance. The delegates viewed the U.S. in itself as an empire. Morris referred to “the dignity and splendor of the American Empire” and even insisted that any person deserving the presidency must be such that his character is “proclaimed by fame throughout the Empire.”[42] Ghorum, too, referred to the U.S. as “the Empire.”[43] At the time, empires were known to consist of kingdoms; hence an empire is inherently diverse (i.e., the kingdoms differing from each other).  Hence the fit of federalism especially for empires.

 

Because of the diversity from “kingdom” to “kingdom,” it follows that political dynamics must exist at the empire-level government that do not exist at the State level. Reducing the selection of the federal president to nationwide popular vote effectively ignores this distinction and treats the office as if it were on the State level. To treat the U.S. itself as if it were like one of its States is to commit a category mistake in logic. Williamson insisted, for example, that “the case is different here from what it is in England; where there is a sameness of interests throughout the Kingdom.”[44] A kingdom may be homogenous, whereas an empire is of such size that internal heterogeneity exists geographically and must be accommodated. Otherwise, political pressure naturally builds up and the empire eventually splits apart.  So the injustice that some delegates, including Madison, saw in conciliating the smaller States and therefore a minority of the U.S. population by not going with the nationwide popular vote can be understood and even justified by reference to the U.S. as an empire necessarily composed of different States, each of which needed to retain some sovereignty to accommodate its distinctive features.[45] As Mason put it, “The United States will have a qualified sovereignty only. The individual States will retain a part of the Sovereignty.”[46] The Electoral College was meant in part to reflect this point, which is in turn based on the belief that the U.S. even then constituted an empire. Just because the College never worked as intended or designed does not mean the fundamentals on which it is based are faulty—that is, what the United States are (or is). To wit, Elseworth noted, “the U.S. are sovereign on their side of the line dividing the jurisdictions—the States on the other—each ought to have power to defend their respective Sovereignties.”[47] Consolidate the sovereignties at the federal level and the empire has lost its way of accommodating political pressure naturally coming from within any empire.

 

I wish to make three points in conclusion. First, the matter of whether to retain the Electoral College, which reflects popular vote at the State level, or go with a nationwide popular vote is complex. Adding to the difficulty is this very dichotomy, which is false both in the sense that popular vote and the Electoral College are mutually exclusive and that no viable alternatives exist. The debates in the Constitutional Convention attest that alternatives do exist, and that some of them may fit better the nature of a federal system than either a nationwide popular vote or the Electoral College.

 

To be sure, the debates also tell us that no alternative is salvific. Alternatives beyond those debated in 1787 may be needed. In fact, this essay is geared to fostering such creativity, which the debates can enrich and keep grounded. Perhaps one possible useful alternative—one not considered by the delegates—is the way Germany selects its federal president. All representatives in the federal Budestag are joined for the purpose by an equal number of delegates chosen by the regional governments. In this way, both the regional governments and the federal legislature have a say. Such balance is good for a federal system. This method could be adjusted, such as by having a majority of the governors of the American States and a majority of representatives of the U.S. House of Representatives both agree on a person.

 

Finally, the experience of the Electoral College tells us that compromise is not always the best option; the College never worked as intended—as a check on the passions of the people. Even just having electors specifically for the purpose of elected the federal president adds complexity that may be unnecessary. Rather than proceeding from a political compromise (or, even worse, a partisan desire for nationwide popular vote or a desire for tradition for its own sake), distinct alternatives can be formulated and debated without losing the arguments made in the Constitutional Convention. Both as regards the length of the presidential campaign “season” and the lack of a sustained focus on public policies even in the so-called “debates,” the process is clearly broken. When the nationwide popular vote favors one of the candidates and the Electoral College favors the other, the vulnerability of the method becomes particularly transparent. Once the status quo has been found to be broken, the question becomes one of which alternative should be selected. I submit that considerable attention should be placed on the formulation of such alternatives, taking account of the delegates’ respective arguments—some of which have turned out to be more valid than others—rather than dismissing them in favor of a media-driven (and constrained) public discourse that is unrooted and without (historical) context.   

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1 James Madison, Notes of Debates in the Federal Convention of 1787 Reported by James Madison (New York: W. W. Norton, 1966): 370.

2. Ibid., p. 371.

3. Ibid., p. 306.

4. Ibid., p. 327.

5. Ibid., p. 308-9.

6. Ibid., p. 368.

7. Ibid., p. 306.

8. Ibid., p. 368.

9. Ibid., p. 307.

10. Ibid., p. 309.

11. Ibid., p. 368-69.

12. Ibid., p. 327.

13. Ibid., p. 327.

14. Ibid., p. 370.

15. Ibid., p. 405.

16. Ibid., p. 307-8.

17. Ibid., p. 310.

18. Ibid., p. 307.

19. Ibid., p. 308.

20. Ibid., p. 233.

21. Ibid., p. 307.

22. Ibid., p. 311.

23. Ibid., p. 306.

24. Ibid, p. 364.

25. Ibid., p. 307-8.

26. Ibid., p. 308.

27. Ibid., p. 363.

28. Ibid., p. 218.

29. Ibid., p. 364.

30. Ibid., p. 363.

31. Ibid., p. 327.

32. Ibid., p. 364-65.

33. Ibid., p. 329.

34. Ibid., p. 366.

35. Ibid., p. 365.

36. Ibid.

37. Ibid.

38. Ibid., p. 213.

39. Ibid., p. 241.

40. Ibid., p. 221.

41. Ibid., p. 224.

42. Ibid., p. 255, 324.

43. Ibid., p. 321.

44. Ibid., p. 357.

45. Ibid., p. 239.

46. Ibid., p. 491.

47. Ibid., p. 493.