About the Scorecard

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

The Founding Fathers gave us a government strong enough to preserve "the Blessings of Liberty", but not big enough to take it away. As historian Paul Johnson writes, "Fear of Big Government was further mitigated by a general assumption that, once the new Constitution was in force, Washington would again be summoned to duty and would prevent its power from being abused.

Two hundred years after Washington passed on, and after the abuses of the Clinton era, how much of the supreme law of the land endures? Check the Constitution Scorecard, which keeps track of how our leaders and opinion-makers are heeding the supreme law of the land. The Scorecard awards gold stars for keeping faith with the Constitution and black stars for contempt of Constitution.

Special Awards

***Three Gold Stars ***
The Benjamin Franklin Rising Sun Award for Constitutional Fidelity

The Ronald Reagan Award for Constitutional Excellence

***Three Black Stars ***
The Lord North Award for Supreme Contempt of the Constitution
This was formerly known as the Charles Townshend Award, then the Clinton Award, and latterly the Ted Kennedy Award.

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June 2011  | July 30, 2011  | November 26, 2011   |  January 14, 2012  |  June 14, 2014

The Constitution Scorecard

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In Federalist #68, Alexander Hamilton, deliberating on the proposed Constitution’s process for electing presidents of the United States, offered these words of advice from the English poet, Alexander Pope:

        “For forms of government let fools contest –

        “That which is best administered is best.”

As the critics of President-elect Trump continue their Alinsky-styled polarization tactics with, among other thing, TV ads and even death threats aimed at Trump’s presidential electors, two constitutional questions emerge:

1.   Should the candidate who receives the most popular votes always be elected president?

2.   Should the Electoral College reject the qualifications of the president-elect and choose someone else?

Let’s take these questions in order.

1.   No. Democratic elections for head of government in other countries also don’t require the winner to receive the most popular votes overall. In the British general election of 1951, Winston Churchill was elected prime minister despite the fact that the rival Labour party had more than 230,000 more votes than Churchill’s Conservative Party. The Conservatives, however, won a 20-seat majority in the House of Commons.

In the 1974 British general election, incumbent Prime Minister Edward Heath’s Conservative Party received 227,000 more votes than opposition leader Harold Wilson’s Labour Party, but Labour won a plurality of four seats in the House of Commons and Heath surrendered the his job to Wilson.

In 1979, Canadian Prime Minister Pierre Trudeau was unseated by Conservative Party challenger Joe Clark, although Trudeau’s Liberal Party beat the Conservatives by more than four percent of the national popular vote, a plurality of almost a half-million votes. But Clark gained a plurality in the Canadian House of Commons of 22 votes and Trudeau resigned.

In the ancient Roman republic, the people elected their chief magistrates, or consuls, by a vote of their tribes. Each tribe’s members would vote for their candidate of their choice and the candidates with the most votes would get one vote for every tribe carried. The candidates with the votes of the most tribes would win. There was no “popular vote” tally. This electoral system worked for almost half a millennia.

Democratic governments with checks and balances provide several mechanisms for reflecting the will of the people, instead of simple majority rule. As James Madison noted in Federalist #10, a majority faction can be tyrannical: “When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens.  To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed.”

In Federalist #39, Madison added that the delegates at the constitutional convention of 1787 opted for a new form of federalism: “The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both.”

Madison added that the delegates chose a presidential election system which is part of this “composition of both” federal and national elements:

“The executive power will be derived from a very compound source. The immediate election of the President is to be made by the States in their political characters. The votes allotted to them are in a compound ratio, which considers them partly as distinct and coequal societies, partly as unequal members of the same society.”

Thus, while Hillary Clinton apparently won the “popular vote,” it has been noted that her plurality was obtained solely through the size of her victory in one state: California. Meanwhile, Donald Trump carried 30 states, or 60% of the federal union.

Moreover, if the current scheme of using TV ads of celebrities urging Trump electors to break their pledges and vote for a third candidate should succeed, Mr. Trump is still likely to win. Denying him an Electoral College majority would send the election to the House of Representatives, where the Republicans control most delegations.

2.   It is argued by some of Mr. Trump’s critics that his electors should reject him as unqualified. The celebrity TV ads take care to argue that these Republican electors need not vote for Hillary Clinton, but for an unspecified third candidate. They don’t apply the same argument to Mrs. Clinton, who ought to be disqualified from holding any federal office, let alone the presidency, by her irresponsible use of confidential government information in her unsecured emails. It is that act, which was probably unlawful, which has led to allegations that the Russian government tampered with the American presidential election by hacking and leaking many of those emails.

“No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity,” wrote Madison in Federalist #10. As the anti-Trump celebrities are exposing their bias by asking Trump electors, but not Hillary electors, to reject their candidate as unqualified, they all receive one black star for Contempt of Constitution.

There is also the argument, however, that the electors should violate their pledges to vote for the nominee of their party because Alexander Hamilton said they should exercise independent judgment.

At issue are Hamilton’s words in Federalist #68: “the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice.”

Therefore, the argument goes, the electors can and should reject Donald Trump because he is not qualified.

This argument fails for several reasons.

For one thing, both Hamilton and Madison expected that the Electoral College would often fail to elect a president and the final choice would often fall to the House of Representatives.

Said Hamilton in Federalist #68: “But as a majority of the votes might not always happen to center in one man, and as it might be unsafe to permit less than a majority to be conclusive, it is provided that, in such a contingency, the House of Representatives shall select out of the candidates who shall have the five highest number of votes, the man who in their opinion may be best qualified for the office.” (NOTE: the 12th Amendment reduces to three the number of candidates from whom the House may choose for president.)

Madison indicated in Federalist #10 that he expected the House of Representatives to make the final election of the president: “The eventual election, again, is to be made by that branch of the legislature which consists of the national representatives; but in this particular act they are to be thrown into the form of individual delegations, from so many distinct and coequal bodies politic. From this aspect of the government it appears to be of a mixed character, presenting at least as many FEDERAL as NATIONAL features.”

Madison reasoned that, as the members of the Electoral College would deliberate within their own states, with little opportunity to communicate with electors from the other states, the process would usually fail to provide any candidate with a majority. So the House would ultimately judge the fitness of the nominees, not the electors.

A second argument against pressuring pledged electors to break their pledges is that this tactic defeats the purpose of the Electoral College, according to Alexander Hamilton. In Federalist #68, he argued: “It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the President of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief. The choice of SEVERAL, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements.”

In the Saul Alinsky-style of promoting polarization, however, the electors have received death threats, among other forms of intimidation. The anti-Trump cabal is in direct violation of Hamilton’s goal of a deliberative electoral system.

Finally, it is absurd for Mr. Trump’s critics to argue his electors should spurn him as unqualified. The electors knew of his qualifications when they pledged to vote for the nominee of their party. Mr. Trump campaigned for the presidency for 18 months.

Moreover, Mr. Trump may be one of the best qualified candidates for president ever. The president, according to Article II, Section One of the Constitution, IS the executive branch of the United States: “The executive Power shall be vested in a President of the United States of America.”

Mr. Trump, like Washington, Jackson, Grant, and Eisenhower is a man with limited conventional political experience, but a great deal of administrative experience. The president is called the head of the executive branch because the executive is meant to execute the will of the people, expressed through the rule of law as fashioned by the Constitution, the Congress, and the courts.

Mr. Trump is proving by his transition work to be an excellent administrator. His deliberative methods thus far have been admirable. He also has indicated he intends, unlike his immediate predecessor, to govern with the Congress and through constitutional rules. This will be a crucial change from Barack Obama, who has boasted about having a phone and a pen he can use to circumvent the Congress and the Constitution.

In the end, we are left with Alexander Pope’s poetic advice, “That [government] best administered is best.”

Mr. Trump deserves a constitutional gold star. Mr. Obama receives three black stars.