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.
***Three Gold Stars ***
Franklin Rising Sun Award for Constitutional Fidelity
The Ronald Reagan
Award for Constitutional Excellence
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
|Tom's radio interviews on WTJU, Charlottesville
|June 2011 | July 30, 2011 | November 26, 2011
| January 14, 2012
| June 14, 2014
| Care to comment on the Scorecard? Send e-mail to Tom Matthes
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
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
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
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
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
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
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
2. Limit the number of convention delegates to five or six
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
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
Here’s one constitutional gold star apiece for Brownstein and
Surowiecki. Too bad such humble perspective appears lacking among
America’s presidential final four.