James M. Redwine

president

Our Two Branch Democracy

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Photo by Peg Redwine

Pure democratic government involves direct selection of leaders by those who are led. The United States is two thirds of a democracy. The Executive Branch is elected by popular vote every four years. The House of Representatives of the Legislative Branch is elected by popular vote every two years. The Senatorial part of the Legislative Branch is elected by popular vote in staggered parts over six years. The Executive and Legislative Branches then select all members of the federal judiciary. The American public has no direct input in the selection of the Judicial Branch.

Federal judges receive life-time appointments subject only to their own choice or, extremely rarely, impeachment. Supreme Court Justice Samuel Chase (in 1805) was the only U.S. Supreme Court justice to have articles of impeachment brought against him; he was acquitted and continued on the court. Fifteen lower federal court judges have been impeached in American history. Eight were convicted and removed from the court. Four were acquitted and three resigned. We currently have about 1,800 federal judges including 9 Supreme Court justices.

The Judicial Branch of our government is in some ways the most powerful and in every way the least democratic branch. While we have only one President, the President may serve a maximum of eight years and must be elected by popular vote. Of course, the Electoral College is the mechanism we use, but popular vote by the electorate is still the gold standard. That is, we have the right to help choose our Executives. Not so our federal judges.

In like manner, we have the right to help choose our state’s Congress people and our state’s two senators. And while there are no term limits for the Legislative Branch, if we choose, we can vote them out. Not so our federal judges.

The historical reasons for how our ideal form of a Three Equal Branch democracy became two equal branches with the Judicial Branch being outside the control of the citizens are complex and, in many ways, convoluted. For the purposes of this column, I ask for a suspension of your legitimate questions about the etiology of how we got to our current non-democratic system. I respectfully recommend an examination of the most famous and momentous U.S. Supreme Court case, Marbury v. Madison, 5 U.S. (1cranch) 137 (1803). It was the original wrongly decided case that the highly political Chief Justice John Marshall used to outfox his bitter political opponent, President Thomas Jefferson, and usurp out of whole cloth for the Supreme Court the ultimate authority to determine if an act or law was constitutional. That was the beginning of how the federal courts have placed themselves beyond the reach of the citizens and slowly but inexorably created a government that, I submit, James Madison and the other Founders would not recognize. The ideal of a living democracy based on direct citizen involvement in the selection of each of three separate and equal branches of self-government has evolved into bicameral branches of Executives and Legislators who then choose the Judicial Branch.

Most experts now believe it would take an amendment to Article III of our Constitution to return to the purity of the Founders’ vision. If so, that painful and arduous process would be preferable to the alternatives.

The Right To Matter

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From www.270towin.com

It was not the British Parliament’s tax on tea that caused the Boston Tea Party on December 16, 1773; it was the denial of the Colonists’ right to be represented in Parliament.

It is not the sexual part of unwanted sex that matters to the Me Too Movement, we Homo sapiens have spent the last 200 to 300 thousand years engaging in sex; it is the “unwanted” factor that is objectionable.

And when our Founders were barely able to cobble together our Republic it was not the fact that some of the Thirteen Colonies had much greater populations than others or much greater wealth than others that almost caused the United States to be simply thirteen entirely separate entities; it was the fear by both the more populous and less populous colonies that their voices would not sufficiently matter.

There were many reasons why and how our constitutional democracy survived colliding circumstances, desires and egos but two of the most significant compromises were the Proportional Representative construct and the Electoral College.

Large states accepted the compromise that in the Senate each state would have two and only two Senators because their proportional influence was recognized by having the number of Congressional Representatives determined by population. Smaller states accepted this arrangement in like manner because they would have an equal voice in at least one of the two Congressional bodies, the Senate, even though they would have fewer Congresspersons than larger states.

Then there is the imaginative system of the Electoral College. The Electoral College determines who will be the Executive Branch leaders, the President and Vice President, via a method similar to the proportional representative system. And because the President has the authority to nominate all federal judges, whoever has influence over the election of the President has an indirect voice in the makeup of the third branch of our federal government, the Judicial Branch. Therefore, the Electoral College, whose only job is to meet every four years and vote for the Chief Executive and the Vice President, has some influence over two of the three Branches of our government. Of course, the Executive Branch contains the armed forces, the F.B.I., the D.E.A., etc., etc., etc. And these countless agencies assert immense power over all of us. We certainly want our opinions to matter when it comes to all those aspects of our government.

The number of Electors of the Electoral College is determined by totaling the number of Congressional Representatives each state has and each state’s two senators. The number of Congressional Representatives is derived from each state’s population. So, very similar to the general system of representative/proportional government, where all states have two and only two senators but have differing numbers of Congresspersons based on population, the Electoral College is based on every state having some Electors but more populous states having more Electors than less populous states.

Currently there are 538 members of the Electoral College based on 100 Senators and 438 Congressional Representatives. For example, Indiana has 2 Senators and 9 Congresspersons for a total of 11 Electors and Oklahoma has 2 Senators and 5 Congresspersons for a total of 7 Electors. On the other hand, California has 2 Senators and 53 Congresspersons for a total of 55 Electors. Indiana’s sister state of Illinois has 20 Electors, almost twice as many as Indiana, and Oklahoma’s sister state of Texas has 38, over five times as many as Oklahoma. The District of Columbia has no Senators but does have 3 Electors based on the 23rd Amendment to the Constitution. Three is the least number of Electors of any state. The U.S. Territories do not receive any Electors.

Whichever candidate receives 270 Electoral votes, the current majority of Electors, is elected President. Sometimes the candidate who receives the most popular votes does not receive a majority of the Electoral votes. This always reignites a debate to eliminate the Electoral College and go to a pure one person/one vote system. Such was the case in 2016 when the Democrat nominee Hillary Clinton received 3,000,000 more popular votes than the Republican nominee Donald Trump, but Trump received 304 Electoral votes, which was 77 more than Clinton received. Had this outcome been inverted I suggest the pro/anti-Electoral College debate would have also been inverted.

There certainly are legitimate arguments for modifying or even eliminating the Electoral College system even though the College has helped to assuage the constant yin and yang of large states versus small ones. As for me, having spent most of my life, so far, in either Oklahoma or Indiana, I do not wish to rely upon the tender mercies of the few lumbering giant states with huge populations of voters that might deign to turn a deaf ear to my concerns and those of the other residents of the numerous less populous states.

Alone In A Crowd

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When I was 16 I worked at a Phillips 66 gas station. I made $1.00 per hour; if I worked 12 hours I made 12 dollars.

The station had one pump for regular (leaded) and one for ethyl. Mr. Cummins and Mr. Miller of Columbus, Indiana had not yet perfected the marketing of the diesel engine. Gasoline prices ranged from 25¢ to 30¢ per gallon.

My boss, the owner, and I were the only workers. We would check and air up the tires, check the oil, put distilled water in the battery, have the customer re-start the vehicle so we could check the transmission fluid, wash the windshield and headlights, whisk broom out the floorboards, fill the gas tank and, if asked, would put the vehicles up on our lone hydraulic lift and apply new grease through the fittings. We did not accept tips but we did talk with every customer.

Whenever an out-of-town car or pickup or tanker came through we would tell them where they could get a bowl of chili or a chicken fried steak. We also gave directions to delivery locations or residences.

Yesterday my car told me my tires were low and that I should take it in for service before I drove another 2,800 miles. The computer did not offer to tell me where I could buy a bowl of chili but, if I had asked it, it would have.

For some reason these memories and events brought E-filing to mind. If you happened to read last week’s column you may recall our local legal system will soon be virtually paperless and, pretty much, human contact-less.

I am not sure of the exact time frame our world began its inexorable march toward exchanging ones and zeros for “Hellos” and “May I help yous?” It was probably either when self-service gas stations or drive through fast food places appeared or maybe when television allowed us to watch ball games alone in our living rooms. Or it might have been when Wikipedia replaced conversation. Of course, Wikipedia is my best friend when I am writing these columns.

As a youngster I sought solitude in long hikes out onto the prairie. Now I am almost completely alone in every group I encounter. If I crave an exchange of human speech I must first send the people next to me a text then try to remain focused until they deign to say something. Other than cashing the checks for Christmas, I am not sure our grandchildren make the connection of us to them. The thank yous come by text. On the other hand, my Grandfather would have thought he had found heaven early if we had had computers then. He thought grandchildren were an unnecessary disturbance, better neither seen nor heard. Some people just wind up in the wrong century.

Be that as it may, we are discussing the irreversible conquest of human interaction by technology. The salient feature of contemporary society appears to be the general desire to isolate itself from itself. I ask you to examine your own world. In mine, I no longer need to leave my chambers to either attend or teach continuing judicial education. Banking is on-line. Taxes are paid electronically. One can get instructions on everything from curing a hangnail to impeaching the president via the Internet without talking to another person. Even toll bridges and highways are self-serve.

We used to look to our colleges as places where people of different backgrounds would mingle and appreciate one another’s views and cultures. However, even the “best” colleges now offer degrees on-line. When our son was in the Army stationed in the Middle East he started and completed his Masters of Business Administration and never saw a professor or a classroom.

Surely, before long, everyone in America will be homeschooled in the sense no child will need to leave her or his house from kindergarten to doctoral programs. And, unless the Russians interfere, soon all voting will be done without the need for polling places.

I guess we still may want to maintain contact to continue procreation. However, we artificially inseminate everything from pandas to pigs. Maybe we will eventually be able to just “mail it in” after we get married via Skype.

Well, I have to go. This column is carried by several digital newspapers and I need to email it in before the deadline or I’ll get a nasty note from some device somewhere.

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