Fool Me Twice (27 page)

They then suggested they were just being creative while pursuing a “thought experiment”:

Some will doubtless dismiss all this as mere academic daydreaming, but the daydreams are useful in illustrating how much constitutional creativity is possible within the existing constitutional framework, short of formal amendment.

It appears that Akhil Amar had been working out his national direct vote theories in articles he wrote well before Election 2000. Professor Bennett cited two separate articles Amar wrote in 1994 and 1995.
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Amar had suggested that a majority of American voters could now require Congress to convene a constitutional convention by submitting a petition to that effect “and that an amendment could be lawfully ratified by a simple majority of the American electorate.”
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Bennett countered that Amar's argument, though skillful, could not be supported by the Constitution. He wrote:

But there is not a word in the Constitution that would support such a procedure. As suggested in the text, moreover, such a procedure is thoroughly at odds with the most fundamental assumptions of our constitutional order, including importantly the role of the states. For instance, qualification to vote in federal elections was originally and remains to a degree within the discretion of the states.

Bennett included Amendment XVII of the Constitution, “so that there are not even uniform national qualifications that would seem necessary to give coherence to the notion of a ‘simple' national majority.”

In 2000, Akhil Amar noted that just because “the dreaded specter of a clear popular loser becoming the Electoral College winner” had not happened yet, it did not mean “we should wait to fix the system.”
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Three years prior, in 1997, Amar had testified before a House subcommittee studying the issue of Electoral College reform. Amar told the subcommittee:

A car with a defective airbag might seem to run quite well until there's a collision … If “we the people” would want to amend the Constitution after the “loser president” materializes—and I tend to think we would—why are we now just waiting for the inevitable accident to happen?
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Amar's concern that the Electoral College would be responsible should the American voters elect a “loser president” is almost laughable in light of the presidency of Barack Obama.
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Amar also told Congress the “thought of having a president who does not truly represent the people's choice is disturbing.” In his opinion, the Electoral College had become “a constitutional accident waiting to happen.”
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Echoing proponents of critical race theory—such as Obama's Harvard Law School professor, Derrick A. Bell—Amar claimed that the Electoral College had only been created to protect slavery.
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In fact, a law school roommate of Amar's at Yale (1982–83), Michael Stokes Paulsen, wrote in a critical 1997 review of Amar's
The Constitution and Criminal Procedure: First Principles
, that Amar “explicitly embraces critical race theory.” Paulsen quotes Amar as saying in 2000:

Without the Electoral College, Northern states that let free blacks vote would have had more votes and more power, and a state wanting to elect a particular candidate could have doubled its clout instantly simply by extending voting rights to women.

Justification for the Electoral College is rooted “in racism and sexism,” noting no other political bodies (whether foreign nations or our own states and cities) think enough of the Electoral College system to use it for their elections.
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Amar also told New Left activist Todd Gitlin, “There are so many equality problems in our election systems.”
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In October 2000, Amar came up with a new rationalization for doing away with the Electoral College—it was old-school:

We have the Electoral College for reasons that made sense 200 years ago. The framers of the Constitution were afraid that people across a very broad continent wouldn't have enough knowledge about candidates. That doesn't apply now that we have national media.
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For Amar to assert that our legacy news media will keep the voting public sufficiently informed is also almost laughable. Nothing could be further from the truth.

The Amar brothers are a real American success story. Their parents, both physicians, came to the United States in the 1950s to do their residencies.
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Akhil Reed Amar, a professor of law at Yale University, graduated summa cum laude from Yale in 1980, with a double major in economics and history, received his law degree there in 1984, and served as editor of the
Yale Law Journal
. He clerked for then judge Stephen Breyer.
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It was noted in 2000 that he would have been listed among the 100 most influential lawyers in America but that he had never taken the bar exam.
³⁷
Akhil's brother, Vikram David Amar, is now a professor of law at the University of California–Davis, and writes in the public law fields, particularly Constitutional law, civil procedure, and remedies. He is a 1988 graduate of the Yale Law School and clerked for Justice Harry Blackmun.
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Akhil is considered a liberal Democrat.
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He gained his first notice in 1993 when he and several other scholars submitted an amicus brief in the Paula Jones sexual harassment case on behalf of President Bill Clinton. In September 1996, Amar was a leading witness for Senate Democrats on the Judiciary subcommittee on the Constitution, Federalism and Property Rights on the issue of “The Indictability of Sitting Presidents.”
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Amar defended Clinton against impeachment in testimony, in writings, and on television, arguing that the Constitution provided a sitting president with immunity from ordinary state or federal criminal prosecution. However, immediately upon a president leaving office, he would be subject to ordinary prosecution.
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Commented conservative columnist Ann Coulter at the time:

The law professor contingent of the Rainbow Coalition have recently repainted their placards “Law Professors Against Paula Jones” to “Law Professors Against Impeachment.”

[Amar and one of Obama's Harvard Law School mentors and advisers, Lawrence Tribe, had an] “infinite capacity to interpret the Constitution in a manner that is constantly most convenient for … any Democratic President.”
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Following the O. J. Simpson trial, the Amar brothers refused to blame the jurors for the trial's outcome and, in fact, wanted to empower jurors even more. They argued that jurors need to feel a sense of duty by giving them “more responsibility and independence in determining verdicts.” For example, juries could be allowed to take notes and receive reasonable pay for jury duty. Lawyers could be restricted in the number of peremptory challenges allowed in
voir dire
. Trials ending in non-unanimous verdicts could be decided by “majority rule.” It was said they believed that “freeing the process of justice from overly rigid rules could produce more faith and trust in the legal system, a primary goal of strengthening democracy.”
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The Amar brothers had begun to form their concept of what voter rights should be several years before their 2001 paper on a national popular vote. In 1996, they wrote in
Policy Review
:

The founders of our nation understood that no idea was more central to our Bill of Rights—indeed, to government of the people, by the people, and for the people—than the citizen jury. It was cherished not only as a bulwark against tyranny but also as an essential means of educating Americans in the habits and duties of citizenship….

Once we see how juries serve as major avenues for popular education and political participation, the connections early American observers drew between jury service and other means of political participation—especially voting—make more sense.
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In the same article, the brothers continued to lay the groundwork by equating jury duty with voting—and, further, with voters being the same as legislators:

We have come to think of voting as the quintessential act of democratic participation. Historically, the role of the people in serving on juries was often likened to the role of voters selecting legislative bodies, and even to the role of legislators themselves.

Taking their argument one step further, they claimed the Supreme Court had “reinforced the linkage of jury service and voting as part of a ‘package' of political rights.”
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Step back another decade, to 1987, and we find Akhil Amar proposing what amounts to the surrender of states' rights, in a nationalist “compact theory.” In his article for the
Yale Law Journal
, “Of Sovereignty and Federalism,” Amar asserts that “during the process of ratification of the Constitution, ‘previously separate state Peoples agreed to
consolidate
themselves into a single continental people.'” Amar's “variant would grant that the compact theory is an accurate description of the United States up until 1789, when the United States became a federal republic.”
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The flaws in Amar's “compact theory” were explained by Michael Lind, writing in the Winter 2002
Wilson Quarterly
:

The most interesting part of Amar's theory—the notion that previously distinct state peoples fused during 1787–88 to become a single
national people—is contradicted by Madison's statement in
The Federalist
39 that the federal constitution would be ratified “by the people not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong.”
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Lind's reference to James Madison's Essay 39 in
The Federalist Papers
is to what scholars esteem as the single most important exposition of the U.S. Constitution. For the layman, a summary and analysis of the essay explains its intent as being to “determine whether or not the framers established a republican form of government…. Since the term ‘republic' is loosely used, we must look to the theoretical principles of republicanism as they have been defined.” Herein we find the perfect Constitutional argument against the use of the interstate compacts for a National Popular Vote to elect a U.S. president.

A republican form of government is one which derives its powers either directly or indirectly from the people and is administered by persons who hold public office for a limited period of time or during good behavior. No government can be called republican that derives its power from a few people or from a favored and wealthy class.
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It logically follows that a government that calls itself a republic cannot allow a minority of the states—even if they have larger populations and are more heavily weighted in electoral votes—to use said power to determine the presidency and the future of the United States for all its citizens. (The Amars and others cite as their authority Article II of the Constitution: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress….”)

Samuel H. Beer, Eaton Professor of the Science of Government Emeritus at Harvard University, amplified on Lind's article by referring to Madison's
Federalist
46. The issue is the problem of federal-state conflict.

Madison, he wrote, approved of “the rivalry of the two levels [of government] as an example of checks and balances,” which he
identified as the “common superior”—“the ‘great body of citizens of the United States,' of whom ‘the federal and state governments are in fact but different agents and trustees' and who, if there were federal-state conflicts, would ‘in every case' decide the outcome.” Madison concluded, Beer wrote, “that ‘the ultimate authority, wherever the derivative may be found, resides in the people alone.'”
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Again, we have an argument against the “national popular vote.” The “ultimate authority” is all of the people, all of the states, not just a select group of them.

As a South Carolina blogger put it:

Our founding fathers understood that pure Democracy (majority/mob rules) can lead to the curtailing or elimination of liberty for the minority or stated another way; pure Democracy leads to tyranny of the majority. 50%+1 of the population can impose their will on the remaining 50%-1 of the population. History has shown us that this can lead to, among other things, dictatorships, totalitarianism, discrimination and slavery.
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How future Americans will elect future presidents is only one of several serious concerns for voters.

A more present danger is the scandalous fact that a foreign-based company—Scytl—is implementing or taking over hundreds of new online U.S. voting systems. Scytl has previously faced questions about the security of its electronic voting technologies, which are now set to be deployed in nine hundred U.S. jurisdictions. The firm already provides balloting for overseas U.S. military and civilian voting in nine states, and handles elections technologies in several districts. Concerns have also been raised about Scytl's ties to the Spanish government and to international venture capital firms. Scytl's official press release announcing its acquisition noted that Scytl is a portfolio company of leading international venture capital funds Nauta Capital, Balderton Capital, and Spinnaker SCR.
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On January 11, 2012, Beverly
Harris of blackboxvoting.org reported that the Barcelona-based U.S. election results reporting firm Scytl had acquired 100 percent of SOE Software, the leading software provider of election management solutions in the United States. SOE Software operates under the name ClarityElections.com.