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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Donald Trump thinks the establishment is trying to steal from him the Republican Party nomination for president. It appears the establishment only disputes his use of the word “steal.”

Kenneth Vogel reports at Politico.com: “Anti-Trump billionaires are funding ground operations in an increasing number of states to try to ensure the selection of national convention delegates who oppose Trump. The strategy is being executed by the anti-Trump Our Principles PAC, which has a stated goal of blocking the bombastic billionaire from clinching the GOP presidential nomination before the party’s convention in July.”

Vogel also reports that one of the anti-Trump billionaires is Stan Hubbard, a media executive from Minnesota, who rejects Trump’s complaints about the fairness of selecting anti-Trump delegates in states where Trump won the primary:

“There’s nothing unfair about it. He or she who can marshal the most forces and do the best job, will get the nomination,”

Saul Alinsky must be proud.

Friends of the Constitution should take note. This is a matter of deep concern. This concern is not about whether or not Trump wins. It’s about an increasingly dysfunctional political system.

These are the relevant points:

1. The presidential election system remains federal.
2. The presidential election system is not yet for monarchs.
3. The presidential election system is broken (whether or not it is corrupt).

Point One: the rules for electing presidents via an electoral college have not changed since the 12th Amendment was ratified. Wrote James Madison in Federalist Paper 39: “The immediate election of the President is to be made by the States in their political characters…it appears to be of a mixed character, presenting at least as many federal as national features.”

There are no rules in the Constitution for how to nominate presidential candidates. Before 1832, nominations were usually made by a congressional caucus or by a state legislature. Since 1832, most nominations have been through a national party convention. The selection of delegates is made by the state parties through state laws.

All of these nomination systems are consistent with the traditional deliberative nature of American politics.

The popularity of presidential primary elections has grown tremendously ever since the 1952 Eisenhower campaign and the 1960 Kennedy campaign used that era’s limited number of primary states to persuade the majority of convention delegates of the nationwide popularity of these two charismatic men.

In 2016, however, Donald Trump charges the Republican establishment of rigging the nominating system against him. “This is a crooked system, folks,” he charges.

Former Republican maverick presidential candidate Patrick Buchanan agrees with Trump:  “Over the weekend, Colorado awarded all 34 delegates to Ted Cruz. The fix had been in since August, when party officials, alarmed at Trump's popularity, decided it would be best if Colorado Republicans were not allowed to vote on the party's nominee…

“In South Carolina, where Trump swept the primary, a plot is afoot for a mass desertion of Trump delegates after the first ballot."
“The Republican Party in Georgia, another state Trump won, is also talking up delegate defections."
“In state after state, when Trump wins, and moves on, the apparatchiks arrive — to thieve delegates for [Ted] Cruz.”

Meanwhile, Bernie Sanders has a similar complaint. He has a remarkable string of primary victories, but his chance of winning the Democratic Party nomination is close to zero. That’s because the party leadership, after the 1972 George McGovern insurgency led to a landslide victory for Richard Nixon, decided that hundreds of party leaders would be unelected “super delegates” to the national convention. Almost all of these super delegates are supporting Hillary Clinton. Understandably, Sanders would like to abolish the super delegate rule.

So Mr. Trump and Senator Sanders have strong arguments about a corrupt nominating system. But consider the second point.

Trump charges that, as he has won the lion’s share of presidential primaries, the effort to deny him the nomination violates American democracy.

Mr. Trump is a brilliant man, but a constitutional expert he is not. James Madison, in Federalist Paper 10, said the United States is not a democracy, but a republic. He had a stern warning against “pure democracy:” “such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.”

Madison preferred the deliberative nature of a republic:

“The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended. The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose.”

But modern national conventions have been ratification parties, rather than deliberative affairs, because the presidential primaries have produced the nominees exclusively since 1972.

This means that the democratic nature of the American republic is under a severe strain. Democracies can easily be turned into tyrannies, especially with a plebiscite presidency, as historian James Burnham warned:  “How can the general will, in its totality, find a political expression? None of the intermediary institutions – inevitably partial, distorted, fragmentary –can satisfy the democratist specifications. But Caesar, unique and integral, can become the summary mythic symbol for the entire nation, the general will incarnate…The intermediate institutions are abolished, rendered impotent, or harnessed to Caesar’s chariot.”

As Burnham warned, several modern presidents have increasingly become impatient with the republican checks and balances that ensure deliberation. Bill Clinton launched a war in Kosovo despite the expressed opposition of Congress. George W. Bush and his supporters in Congress won passage of an emergency Wall Street bailout, after the House of Representatives rejected it, by reintroducing the bill in the Senate in violation of the constitutional requirement that revenue bills must begin in the House. Barack Obama is refusing to enforce immigration laws he dislikes, leading the border patrol agents’ union to endorse Trump for president.

The “final four” of the 2016 presidential race also seem impatient with federal checks and balances. Sanders promises free public college education, universal health care, and a $15 an hour minimum wage – none of which is likely to win approval from Congress. Trump has promised to execute criminals who murder police officers, although such cases are under the jurisdiction of state laws and no president can order judges to impose the death penalty. Hillary Clinton promises to go even further than Obama in unilaterally reworking immigration laws. Cruz promises a flat tax, although Republicans in Congress have a variety of competing tax reform plans.

Thus, the American presidency is moving closer to being a monarchy, something Antifederalists like George Mason and Patrick Henry warned about in 1787.

In fairness to the Republican and Democratic establishments of 2016, it must be frustrating for them to see outsiders like Trump and Sanders (Trump is a recent convert to the Republican cause and Sanders has always run for office in the past as an independent socialist) attempt what can be compared to hostile takeovers of the major parties. Gaming the convention system to thwart such interlopers must feel right to these traditional politicians – provided they ignore their own voters.

A return to presidential nominations by deliberative conventions could reverse this movement toward an American presidential monarchy. But this will not happen without substantial reforms in the convention system, because of the third point.

The presidential election system is broken. There are several reasons why, but the biggest one is that the Democratic and Republican national conventions are far too big to be deliberative.

Madison wrote in Federalist 55 that a deliberative body can be both too small and too big:

“Sixty or seventy men may be more properly trusted with a given degree of power than six or seven. But it does not follow that six or seven hundred would be proportionably a better depositary. And if we carry on the supposition to six or seven thousand, the whole reasoning ought to be reversed. The truth is, that in all cases a certain number at least seems to be necessary to secure the benefits of free consultation and discussion, and to guard against too easy a combination for improper purposes; as, on the other hand, the number ought at most to be kept within a certain limit, in order to avoid the confusion and intemperance of a multitude. In all very numerous assemblies, of whatever character composed, passion never fails to wrest the sceptre from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.”

Here is a useful comparison:

The 1860 Republican National Convention that nominated Abraham Lincoln had a total of 465 delegates, only slightly larger than the modern limit of 435 for the US House of Representatives.  The 2016 Republican convention will have a total 2472 delegates and the 2016 Democratic convention will have 4765 delegates.

Madison would call these assemblies “mobs” rather than ones able to “secure the benefits of free consultation and discussion.”

Moreover, the ridiculous length of modern nominating contests produces candidates with ambitions that must border on fanaticism.

This was noted by David Broder, the late dean of American political columnists, four decades ago. He wrote about the problem after Senator Walter Mondale, considered a frontrunner for the 1976 Democratic nomination, declared in late 1974 he would not run for president because, in Mondale’s words, he did not wish to spend two years living out of Holiday Inn motel rooms. Even then, running for president was considered a task requiring two years of extraordinary time commitments, not to mention massive fundraising. Broder argued that Mondale’s reasoning demonstrated that the only people willing to run for president should not be trusted with the job. The chief executive of a republic, like George Washington (and his ancient Roman model Cincinnatus), must be able to contain his cravings for power.

Sad to say, the craving for conflict in the national news media has produced a miasma of televised sound bite “debates” (joint news conferences in reality) that produce little useful discussion of the great national issues.

In short, critics of Donald Trump who claim that the massive effort to deny him a majority of delegates on the first ballot, thus producing an open or contested convention, cannot claim that this will produce a deliberative contest. Conventions with two or four thousand delegates will be, in Madison’s words, unable to prevent “the confusion and intemperance of a multitude” in which “passion never fails to wrest the sceptre from reason.”

So what is to be done?

It is likely that Mr. Trump or Senator Cruz will, in Trump’s phrase, master the art of the deal and win the GOP nomination. Unless Senator Sanders shames the bosses of the Democratic Party into cancelling the credentials of the super delegates, his campaign is living on borrowed time.

If either party wants to settle their nomination contests by deliberation, they should immediately start encouraging state and regional caucuses to discuss the virtues and flaws of their candidates, as well as debating their platform planks.

In the future, as the modern US House of Representatives has a ratio of one representative for about 750,000 citizens, the only future for representative and deliberative government is to decentralize – devolve most federal powers from the dysfunctional center in DC back to the state and local levels.

That will take time, but the national committees of the major political parties could substantially reform the presidential election system before 2020:

1.   In the era of space stations, satellite communications and the Internet, the formal presidential race could – and should - be completed in four months. The parties should refuse to seat any nominating convention delegates chosen before July 1 of the election year.

2.   Limit the number of convention delegates to five or six hundred.

3.   Encourage state and local political party branches to emphasize their independence of the national party committees (something that is common in Canada).

4.   Have state party branches hold platform caucuses from January through June of election years.

5.   Encourage candidates to hold one-on-one debates, instead of the current joint news conferences.

6.   Accept the need to decentralize most federal powers, so that federal officials can focus on their core responsibilities of national defense, regulating interstate commerce, and managing relations between the states.

Such reforms would restore the deliberative process to presidential elections and also to Congress.

Finally, several recent authors have noted that political leaders need more humility. One of them, University of Baltimore professor emeritus Barry Brownstein, wrote an online article entitled “The Last Thing We Need Is a Brilliant President: Markets, Not Experts, Are the Best Decision-makers.”

He cites several writers, including a journalist:   “In his book The Wisdom of Crowds, journalist James Surowiecki explains that intelligence is not fungible: ‘there’s no real evidence that one can become expert in something as broad as “decision making” or “policy.”’ Surowiecki has counterintuitive conclusions for those who believe in decision making by elite experts: ‘If you can assemble a diverse group of people who possess varying degrees of knowledge and insight, you’re better off entrusting it with major decisions rather than leaving them in the hands of one or two people, no matter how smart these people are.’”

Here’s one constitutional gold star apiece for Brownstein and Surowiecki. Too bad such humble perspective appears lacking among America’s presidential final four.