It’s Okay To Feel Okay

Alternate Title: “3,000 Self-Indulgent Words About My Feelings”

Improper anger as expressed by Arthur's clenched fist.
PICTURED: Improper feelings. (You can’t know how long I’ve waited for the right moment to get in on this particular meme.)

My wife and I learned different things about feelings when we were growing up. My wife was taught that, “Whatever feelings you’re feeling are okay.” (It was how you acted on your feelings that mattered.) Whether billowing anger or rapturous joy, she was raised to let those feelings happen, without self-criticism or external judgment, regardless of how they arose. Her job was to ride those feelings out and then make good choices.

I, on the other hand, was raised by two philosophy professors who were great fans of Thomas Aquinas. Although I don’t think anyone ever sat me down for a talk about “feelings,” it is not surprising that I ended up believing something rather different: emotions can be disordered, irrational, improper, and just plain wrong. We might not be directly responsible for our feelings—we can’t turn them on and off at will—but, if you’re looking at a mass grave and experiencing joy, there’s something wrong with you. Even if you go on to do the right thing (good for you), that emotion you felt was wrong, and you need to take steps to make sure that you don’t feel that way the next time you see a mass grave. To me, one of the signs of a fully developed human being is that he evolves beyond simply riding out disordered emotions; instead, he stops experiencing such emotions altogether.

So I was alarmed when I woke up the morning after Election Day and discovered that I felt… pretty good, actually!

After all, I had just spent the past nine months making the case that Donald Trump was unfit to be President of the United States. During the primary, this blog became a chronicle of the campaign to stop him. After he won, I kept defending #NeverTrump and trying to remove him. Less than a week before the election, I published a post entitled, “For the Record, Trump is Evil”, in which I derided him as a moral monster whom the ethical voter should not elect to the post of dog-catcher, still less the highest office in the land. Unfortunately, I thought the same of Mrs. Clinton, which left me in something of a bind—so I spent the final days of the election bending over backwards to try and find an ethical way to oppose Mrs. Clinton without supporting Mr. Trump. When Election Day arrived, still undecided, I stalled: I didn’t show up at the polls until just an hour before they closed, and then I spent twenty-five minutes agonizing over my choice (which was between third-party candidate Mike Maturen and the Republican slate of electors).* I soon thereafter sent a piece to The Federalist arguing that the Electoral College had a duty to reject Donald Trump in favor of some other conservative, because of Trump’s manifold moral and legal failings.

So the election of Donald Trump should have made me feel awful. Other than the little bit of schadenfreude I gleaned from reading Paul Krugman and Rachel Maddow and the New Yorker in complete meltdown—yeah, the expansive, take-no-prisoners culture war you started isn’t so fun when you’re losing, is it, guys?—the American future I forecast under President Trump was bleak. I expected (in no particular order) corruption, recession, realignment, war, big government, racism, violence on all sides, incompetence, the surrender of social conservatives on all the issues that really matter (while simultaneously turning back the clock on human decency under the guise of fighting political correctness), classlessness, lawlessness, end-runs around the Constitution, deficits as far as the eye can see, brand new threats as yet unimagined, and a myriad of other evils. In fact, I still expect all these things: my pre-election outlook on Trump has changed only a little. All this, my Thomist training told me, should have left me bereft and horrified. I shouldn’t have been feeling schadenfreude while reading Anna Merlan, I thought; I should have felt more or less the same awfulness she was feeling (credit where due: her piece, “It’s Okay To Feel Terrible Before You Feel Anything Else”, inspired the title for this post).

But the weeks passed. The schadenfreude faded, and I still felt fine.

Trump made it clear he planned to continue to beclown himself with celebrity feuds even as President. Russia’s increasingly clear interference in our election added a whole new dimension to a foreign policy chess game not a single person in Washington was equipped to play—least of all the President-elect. I kept feeling fine.

I watched Gods of Egypt, as promised, and it was an abomination before God and Man. The Electoral College betrayed its duty and elected Trump despite everything. The dumb caricatures of GOP policy Trump ran on (when we could have had the policies of a Paul or a Rubio or a Cruz! Auugh!) didn’t get less dumb after his election. If anything, they became more confused. And, even then… I felt fine.

I’ve seen scant evidence that Trump has developed a single virtue since the election, but I have seen an awful lot of evidence that Republicans, from the grassroots to the pinnacle of the Senate, are more willing to aid, abet, and generally cover for him (now that he’s “our” guy) than I ever imagined in my most cynical moments as a Republican. A once-great American party I once called home has permanently sullied itself, and I’ve scampered away to start a new political party—an effort which, I’m sad to say, isn’t going all that well at the moment! In short, everything is terrible.

Now, a lot of this did make me feel frustrated or dismayed. I was very cranky for a day after the Electoral College voted. Yet, through all of it, my basically okay feeling remained. This, in turn, made me feel awfully guilty: how dare I feel good while staring at the political equivalent of a mass grave? What the hell is wrong with me? I’m not my wife! I don’t think it’s okay to just feel my feels whatever they may be!

During the run-up to Inauguration Day, I was forced to think about it more and more. Why wasn’t I more enthusiastic about impeaching the new President? Why wasn’t I feeling more ashamed for my country as he prepared to take the Oath? No longer able to set my feelings aside, I examined them more closely, and realized a couple things.

For one, it turns out a lot of what I’m feeling isn’t happiness. It’s just relief. The imminent, even inevitable, presidency of Hillary Clinton had weighed on my chest for months.

Actually, scratch that: I resigned myself to President Hillary Clinton way back in 2012, because I thought President Obama’s “blue wall” gave Clinton a structural advantage that even a real Republican like Rubio or Fiorina would have a tough time overcoming. When Trump secured the nomination, my hope of victory died, but it had never been strong to begin with. I had this vivid mental image (read: nightmare) of President Hillary Clinton naming Barack Obama to fill Justice Scalia’s Supreme Court seat, with Goodwin Liu as a chaser when Clarence Thomas died. Of Catholic schools (like the one I work for) and convents and hospitals being threatened with destruction unless they abandoned their Catholic identities. Of the First Amendment going away for good, in more ways than one. (Mrs. Clinton did not hide her disdain for pro-1A decisions like Citizens United and Hobby Lobby.) Of gender ideology spreading to every corner of society, not through debate and cultural change but through imperial mandates and threats of defunding and blacklisting and jailing. Of Obama’s imperial presidency continuing to expand into a monarchy while a rapturous press corps did nothing but cheer. Of continuing persecution for me and mine through the organs of the unaccountable federal bureaucracy, with no check in sight. Above all, I imagined a lot of babies being killed by the abortion machine, even as President Clinton destroyed the Hyde Amendment and put us taxpayers directly on the hook for mass murder.

I was going to fight like an archangel to stop all this from happening, but I didn’t expect to succeed. I thought Clinton would be the next President no matter what we did. (Trump supporters reading this are probably thinking that makes me a cuck, but I think fighting for a lost cause, never surrendering, is noble.) So, by the time Clinton got around to losing, I had been carrying the dread of her presidency around with me for four years. I had no idea how much that quiet, resigned horror affected me until it was, suddenly, gone.

It’s okay to feel relieved about that. It’s not disordered. It’s actually pretty reasonable. I’m not saying you have to. I have plenty of friends, including conservative friends, who are feeling various shades of despair, anger, and simple shame today. Given how awful Trump is, I think those feelings are entirely justified, even if I find, to my surprise, that I don’t share them. But hear me out:

You look at the Orange Menace on the presidential dais and say, “Okay, yes, he’s a perilous, predatory Putin puppet who proudly posed for Playboy, but he’s not going to destroy whole orders of nuns for declining to join the Left’s Permanent Sexual Revolution.”

“…but he isn’t going to repeal the federal Partial-Birth Abortion Ban Act.”

“…but, when he brazenly ignores the rule of law to advance narrow political ends, he isn’t going to be able to get away with it quite as easily as President Obama and the Clintons always did.”

I can stack those “buts” all day. There are dozens—hundreds—of catastrophes Clinton vowed to inflict on us in her own campaign materials, and (unlike Trump) you could actually take her word for it when it came to policy. And then, in one remarkable night, those catastrophes all went away.

We are left, instead, with Trump.

There are a lot of bad things you can say about Trump. I said some of them, above. Now let me say a few more:

PICTURED: Our new nuclear policy, probably.
PICTURED: Our new nuclear policy, probably.

Trump could start a nuclear war that kills us all. I’d trust Fake Drunk Nixon with the nuke codes sooner than I’d trust Trump with them—and, yet, here we are.

Trump could be the most corrupt president in history. In the country where Warren G. Harding was once president, that’s saying something.

Trump could be the most ethically-compromised president in history. In the country where William Jefferson Clinton was once president, that’s saying something.

Trump could be the president who does the most damage to the unity of the country itself. In the country where James Buchanan was once president, that’s saying something.

Trump could be a (not-so-)secret fascist who is just waiting for an opportunity to sweep aside the checks and balances of the Constitution and impose a permanent, autocratic political order on us—and has perhaps the best chance of succeeding when he does. In the country where Woodrow Wilson was once president, that’s saying something.

Trump could start torturing U.S. prisoners of war, in serious violation of domestic law, international law, and the moral law.  At one point, he promised to do just that.

Trump could start murdering the families of suspected terrorists in cold blood, in serious violation of domestic law, international law, and the moral law.  At one point, he promised to do just that.

Trump could abandon the commitments he’s made to the protection of the unborn, leaving them worse off than ever when a Democrat, inevitably, one day retakes the Oval Office. He’s taken so many positions on abortion and judicial nominees that you can pretty much take your pick!

This list could go on for a while. If you are a progressive who was counting on continuing the string of culture war victories achieved during the Obama presidency, it could go on almost forever—although that’s true of any Republican president.

But notice what every item on this list has in common: it’s all “coulds.”  Maybes.  Possibilities. With a man of Trump’s low moral character, even his most fervent promises evaporate at a tiny gust of political wind into dreams. We really have very little idea of what Trump is going to do in office. U.S. trade policy is probably going to take a turn, but U.S. trade policy is not the burning issue of my life that keeps me up at night, sick with dread. It’s pretty reasonable to allow the possibility that none of my worst fears will actually come to pass. Same goes for some of your worst fears, too: we don’t know what his immigration policy will actually be, we don’t know what his health care policy will actually be (a fact which is driving House Republicans crazy), we don’t know how serious he is about shielding himself against an emoluments clause prosecution. We can be pretty certain he’ll be a gigantic flaming amoral scuzzball, but we’ve been through that before and come out okay; one prays we can weather that storm again.

For me, there have already been good signs that my worst fears will not come to pass: Secretary of Defense Mattis had a talk with Trump and apparently changed his mind on torture—then promised the Senate he would refuse any presidential order to the contrary—so Trump’s torture promise has largely dissipated. Trump’s judicial commitments, by contrast, have turned out to be solider than I expected: the word is that his leading candidate to fill Justice Scalia’s seat was none other than Sen. Ted Cruz (who turned him down; Cruz still thinks he can be president), and his second choice is rumored to be Judge William Pryor, a very solid jurist. Trump’s cabinet is full of people who wouldn’t be my first choice, but, at the same time, every one of them so far looks like an improvement on his or her predecessor.**

Above all, they all seem strangely normal. They have pretty typical cabinet résumés. They have a wider range of views than, say, the George W. Bush cabinet, but none of them are shocking, except maybe Steve Bannon. Democrats are attacking them on pretty typical, opportunistic grounds, and Republicans are defending them on pretty typical, opportunistic grounds. The typical minor scandals are emerging, perhaps a bit more than usual because the nominees were so hastily vetted. If these are the people who are going to run the Trump Government, it’s not crazy to imagine the next four years might be a pretty typical four years of Republican rule.

None of this is to say that I expect the Trump presidency to go well. I don’t. That list earlier? “Corruption, recession, realignment, war,” et cetera? That’s still my prediction. For good or ill, the man’s an unprincipled, sociopathic demagogue, and—spoiler alert!—that usually ends up more ill than good. But the future under Trump, today, remains very uncertain. It could be very good; it could be very bad; and there’s a very large middle ground where the Trump Administration is just kinda okay with a side order of cruddy—a one-step-forward/two-steps-back grind, much like every presidential administration since I was born in 1989.  The future under Clinton, on the other hand, was deadly certain: it promised to be the final catastrophe that did in everything I believe in for a generation or more.

With all this very much on my mind, I sat down to watch Trump’s inaugural address today. It was a decent speech, following a messianic narrative quite typical of inaugural addresses, most clearly evoking Reagan’s 1981 inaugural but with strong strains of Obama’s 2009 address, and even a few hints of Roosevelt ‘33. It was not the speech I wanted to hear. I am sick to the teeth of presidents who think themselves Messiahs, and Trump is the poorest exemplar yet. Nevertheless, I still felt okay. And, on closer examination, I discovered that I wasn’t just feeling relief.

There were mountains of relief, of course. Whole kilos of it feel like they’ve rolled off my body since Election Day.

But there was just a whisper of something else. Something I haven’t really felt in American politics in over a decade. Something that could vanish again in a heartbeat like a passing fever dream—and, frankly, probably will. Something I never, ever expected to feel while watching a Trump speech:

I felt hope.

And that’s okay.

 

*It doesn’t matter which I decided, in the end, because I could have just as easily gone the other way. Decide whether you’d hate me more for voting for Trump or for Maturen, and then assume I did the one you’d hate more. Either choice was shameful, in its own way, I have readers on both sides of the question, and no light to shed on the question of which choice was best under the circumstances.

**Even if you question Betsy DeVos’s competence—not unreasonable!—it would be tough to be a more intrusive, overbearing overregulator than either of President Obama’s EdSecs, John King and Arne Duncan. Obviously your mileage will vary if you are a progressive… but that conservatives uniformly consider them an improvement and progressives uniformly consider them awful, all for the usual reasons, just underlines how weirdly normal this all is.

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Will President Trump Get a Chance to Swing the Supreme Court?

Social Security Administration Graphical Life Table
If you zoom in far enough on this Social Security life table, it will tell you the exact date, time, and cause of your death.

For many of us, the most important issue at stake in last month’s election was the Supreme Court, where judges who primarily attempt to follow the Constitution’s text are currently outnumbered, 5-3, by judges who make other concerns the primary basis of their decisionmaking. This question has major policy implications, since textualism is totally incompatible with several key Supreme Court precedents made during the recent decades of anti-textualist supremacy — most notably the abortion rights guaranteed by Planned Parenthood v. Casey.

Once Trump enters office, he has promised to fill the late Justice Antonin Scalia’s chair with a fourth textualist, making the balance 5-4. Trump has also promised to ensure that any other vacancies are filled by constitutional textualists. (His opponent, Mrs. Clinton, promised litmus tests to ensure the exact opposite.) Whether Trump will keep that promise is a matter of some debate, which this post will not attempt to settle.

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Some Electoral College Silliness on the Left

This whole electoral college thing is getting weird.

A little while ago, I called on the electors to do their duty: when they vote for President on December 19th, they must vote for a person they consider qualified and fitting for the office — even if that means voting for someone other than the two major-party candidates. (I floated the name of Mike Pence. Though hardly my first choice, Pence is nearly unique among nationally-prominent American politicians today in having a positive net approval rating, but any well-qualified candidate who appeals to Republican electors would do.) I said that the right of electors to vote against their pledges to block demagogues from the Oval Office was truly “more than a right: it is a grave and difficult duty.”

At about the same time as I made my case, a bunch of people on the Left had the superficially similar but actually quite crazy idea of demanding that the electors vote for the winner of the national popular vote (that is, Hillary Clinton) instead of the popular vote in their respective states (where Donald Trump leads). This is a bad strategy for three reasons:

(1) Even the most anti-Trump Republican electors would sooner saw off their own legs while shouting, “Trump 2020!” than put Hillary Clinton in the White House. Simply as a matter of political tactics, asking them to not just oppose Trump but support Hillary is an awful strategy. If calling on the electors to vote their conscience is like asking them to stage a daring escape from a POW camp (a big ask in its own right!), calling on them to vote for Hillary is like asking them to sabotage the escape and become a capo. It’s not going to happen, and suggesting it makes it less likely the electors will do anything out of the ordinary this year. But this is just a political concern, and thus the least serious problem with the Hillary Elector movement.

(2) The core argument for conscientious electors is simple: the electors should vote for a candidate who is qualified to be president, and Donald Trump is not qualified to be president, because he is a lying, fraudulent, amoral, deeply bigoted, probably criminal, corrupt demagogue. But Mrs. Clinton is also a lying, fraudulent, deeply bigoted, amoral, probably criminal, corrupt demagogue. She is a tad more polished about the lying, and she’s bigoted against different groups of people (“deplorables” rather than “Mexicans”), but she is nevertheless unqualified for office. If you disagree with me, fine, but remember that you have to convince 37 of 306 Republican electors to vote against Trump, and they broadly agree with what I just said.  Arguing for Clinton over Trump because she’s qualified to be President is like arguing that Rebecca Black should sing the national anthem at Inauguration Day because she’s a better singer than Justin Bieber: the point is debatable, but the only correct answer is to forget them both and hire Adele.

(3) Most importantly, people asking the electors to vote for Clinton are, almost universally, sabotaging their own case. The typical argument is that the electors should support Clinton over Trump because Clinton won the popular vote. But the whole point of the electoral college is to circumvent the will of the (small-d) democratic mob by ignoring the popular vote. The only reason we are having this conversation at all is because the Founding Fathers were so scared of popular-vote winners at the national level that they built an elaborate and unique system that was designed, originally, to discourage popular votes from happening at all, and to render those votes only somewhat relevant if they did.

It has been interesting watching the Left’s best minds try to process this bizarre, self-contradictory position, which is grounded simultaneously in mob-rule democracy and in an originalist understanding of the (anti-majoritarian) Constitution that is normally quite foreign to the Left. Lawrence Lessig announced his support a Washington Post op-ed ten days ago. He quickly received rebuttals from Garrett Epps, Noah Feldman, Robert Hardaway, and Stephen Mazie, Clinton supporters and professors all. (I would be remiss not to mention Lessig’s several further replies to these rebuttals.)

These rebuttals all take different tacks. Feldman and Mazie that electors should vote as expected because voting their consciences would threaten the democratic legitimacy of our elections. (To which I reply, “Insofar as our democracy is threatened by our republic, let democracy give way.”) Hardaway robustly defends the electoral college on anti-sectionalist grounds. Epps insists that the electoral college was designed to discourage popular presidential elections from happening in the first place. (True: Hamilton says as much in Federalist No. 68, paragraph 4. And, as I’ve argued elsewhere, that’s a good thing!) Between them, the four rebuttals expose the contradiction at the heart of Lessig’s position — you can’t simultaneously defend the electoral college as an anti-populist safety valve and demand the electors support Clinton because of her populist victory — and I agree with a great deal of what they have to say.

But all four rebuttals share a fatal flaw: all four contend that the electoral college was never intended to serve as a check against the popular will of the people. All four claim that the electoral college is, as Feldman puts it, a “mere formality,” and cast the electors themselves as “faceless hacks whose ideas and judgment are neither wanted nor permitted,” according to Epps. Three of the authors refuse to acknowledge that the electors have a constitutional right to vote their consciences at all.  (Epps allows that they do, but concludes, “Let’s not pretend Hamilton and Madison wanted them to.”)

Each author cites some very thin evidence to support their belief: Epps points out that the electors never meet as a college, but rather each state’s electors meet in their own states, so they cannot possibly be supposed to deliberate among themselves. Mazie just cites Epps. Hardaway cites the conclusions of a 1958 political science book that favored popular vote reform and quoted a number of Founding Fathers to support this contrarian view. Feldman relies on a flagrant misreading of Federalist No. 68.

My fellow blogger Tim Huegerich picks these thin arguments to pieces over at Bullshitist:

It is certainly possible to find evidence that, considered in isolation, suggests electors were not intended to be free agents. For example, James Madison himself apparently would have preferred a direct popular election… But there remains ironclad evidence that, in the system ultimately written down in the Constitution, electors were expected to exercise independent judgment.

In particular, I am having trouble imagining how proponents of the revisionist view would answer the following questions, though I remain sincerely open to being enlightened:

  1. Why does the text of Article II stipulate that “no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector” if electors were envisioned as mere functionaries obligated to vote for the candidates chosen by others? That is, why would it matter who they were if they were not permitted independent judgment?
  2. “During the debates on September 4, 1787, Charles Pinckney of South Carolina objected to the electoral college because ‘the Electors will be strangers to the several candidates and of course unable to decide on their comparative merits.’ Abraham Baldwin of Georgia replied that ‘increasing intercourse among the people of the States, would render important characters less & less unknown.’”[2] Why were the Framers concerned with the knowledge of the electors, specifically, if they did not intend for them to use their own judgment?
  3. If Federalist #68, written some months after the convention’s completion, blatantly misstates the intent of convention participants (as Epps claims), why did none of the other Framers ever say so? And why did the anonymous author of Antifederalist #72 play along?
  4. If electors were not permitted any agency in 1788, then who was it, precisely, that told Georgia’s electors to split their five votes for Vice President among four different candidates? In six out of the ten states participating in that first electoral college, electors split their second votes in a similar way. It was not until 1836 that electors first voted uniformly by state. Why?

To my knowledge, none of the authors have answered any of Mr. Huegerich’s questions yet. Mazie has fallen back on his dangerously populist, ahistoric position that the voters are simply better at picking presidents than 538 electors. (John Adams, who once wrote, “There was never a democracy yet that did not commit suicide,” is spinning in his grave fast enough to power Atlantic City.) Epps has blocked Huegerich on Twitter. I’ve seen no action from Feldman, whose serious error Huegerich singles out for special criticism in the full post (which is worth reading).

I think Huegerich has done a good job making his case in the small space permitted to blog posts. However, he passes over Epps’s argument that the electors were not intended to deliberate because they were never intended to meet in one place. Since this is the basis of Epps’s whole case against conscientious electors, it deserves attention, and, conveniently, Hamilton himself explained it for us in Federalist No. 68: the electoral college meets in different states in order to make it more difficult for special interests to corrupt them. That’s it. A powerful cabal or foreign power might be able to subvert the electors if they all met in one place, but it is exponentially more difficult to leverage influence over dozens of small, geographically distant bodies that vote at the same time on the same day:

Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention. They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment. And they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the President in office. No senator, representative, or other person holding a place of trust or profit under the United States, can be of the numbers of the electors. Thus without corrupting the body of the people, the immediate agents in the election will at least enter upon the task free from any sinister bias. Their transient existence, and their detached situation, already taken notice of, afford a satisfactory prospect of their continuing so, to the conclusion of it. The business of corruption, when it is to embrace so considerable a number of men, requires time as well as means. Nor would it be found easy suddenly to embark them, dispersed as they would be over thirteen States, in any combinations founded upon motives, which though they could not properly be denominated corrupt, might yet be of a nature to mislead them from their duty.

Epps dismisses this entire passage as a mere “sales document,” but offers no evidence for his competing interpretation of the constitutional provision in question.

Whether or not the electoral college’s dispersion is effective at preventing corruption in modern America, which now enjoys instant communication across far distances, is open to question. But Hamilton nevertheless plainly considered the dispersion of the electors an anti-corruption defense, and this suffices to explain what Epps considered inexplicable. The argument Epps made in his Atlantic piece instantly crumbles.

Frankly, it pleases me to see so many scholars on the Left earnestly debating the original intent of one of the most innovative parts of our Constitution. And, again, I agree with much of what they have to say: Lessig is right that the electors were originally intended to vote freely; his critics are right that Lessig’s further argument that the electors should vote for Clinton misconstrues the Founders’ original intent and misunderstands the electoral college’s anti-populist function.  I am especially pleased by Epps’s stated openness to my solution: asking the Republican electors to support a Republican alternative to Trump.

On the other hand, it is disheartening to see originalism used so carelessly. I understand the authors have space constraints, but there’s simply no excuse for Feldman’s misconstrual of Federalist No. 68, Epps’s total failure to acknowledge the generally-accepted explanation for why the electors meet in different places is bizarre, and I think it is very telling that Tim Huegerich’s obvious questions remain unanswered by any of Lessig’s rebutters. Clearly, the tools of originalism remain unfamiliar and unwieldy to many of the finest minds the legal Left has to offer, and these originalist-looking superficialities are the closest approximation on offer. That’s a tragedy, not just for the results of this election, but for American law as a whole.

For a good palate-cleanser, go read the always-terrific Michael Stokes Paulsen in last week’s The Public Discourse. Along with his usual close reading of the relevant constitutional text, he is the first person I’ve seen to succinctly explain why Ray v. Blair is no obstacle to conscientious electors. For deeper reading on the history and purpose of the electoral college, with strong support from primary sources, you should read Robert Delahunty’s recently-published article in Cardozo Law Review De Novo, which I’ve mentioned before (and which I will keep mentioning because it’s terrific).

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I’m on the Malacast with Adam Mala!

Adam Mala of the Malacast reached out to me after reading my recent piece in The Federalist, and we had a nice phone interview last week about the electoral college.  You can listen to it here:

http://malacast.libsyn.com/interview-with-james-heaney

We had a good conversation, which ran about a half-hour.  I haven’t had a chance to listen to the final cut yet, but I enjoyed myself thoroughly.

I’ll give a little warning that, in live interviews, I am less circumspect than I am on the blog. You can’t check your facts, you can’t wait to decide the best way of saying something, so you just talk. The net result is that I let my right-winger flag fly a little more than I do here on the blog. Which was… kinda fun, actually!

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The Awesome Responsibility of the Electoral College

…was the original title of my article just published in The Federalist.  Check it out!  Here is an enticing excerpt:

If each of the 306 Republican electors truly believes, in his or her heart of hearts, that Trump is the best man for the job, that he is the American with the greatest “abilities and virtue, in whom the people perceive just grounds for confidence,” who has all “the qualities adapted to the station” of the presidency… in that case, by all means, they should cast their votes accordingly, and Trump will become, on December 19, president-elect of the United States.

But if there is doubt; if, after deliberation with fellow electors, it seems clear that there are Americans better suited to serve as commander-in-chief, then each elector who feels that way has both the right and the duty, as officers of the Constitution of the United States, to vote for somebody else.

That is the system our Constitution demands. It is not a theft. It is not an error. It is by design.

Those of you who have seen all the hard thinking I’ve done about electors in the past couple of weeks probably aren’t surprised it led to this, but I think I make a pretty good case.  Full article here.

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Three Ways to Watch the Presidential Returns

The day of the Brexit vote, the very first constituency to report results, Newcastle-upon-Tyne, reported a defeat for Brexit, 51%-49%. The defeat for Brexit there was expected. However, the margin was wrong: experts had expected Brexit to fail in Newcastle by 12 points, not 2 points. Newcastle had been a “safe state” for Brexit that turned into a narrow win.

This, in the end, was the story of the entire Brexit results night. Areas that were expected to vote for Brexit by a narrow margin voted for it by a large margin; areas that were expected to oppose it by narrow margins ended up supporting it by narrow margins. There were a few places where the anti-Brexit “Bremain” vote did better than expected, as there always are… but not many. By the time the results were tabulated in England’s version of  “battleground states,” the result was fairly clear on the strength of the vote totals in the “safe” constituencies alone.

Lesson for Americans: you can infer a great deal about the state of the presidential race from even early results in small geographic areas.

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Trump, Brexit, and Our Uncertain Election

Map of British regions by Brexit vote share
Surprise!

A few weeks ago, Trump supporters were talking about how their man was going to win even though all the polls showed him losing, “just like Brexit!”

Those of us who knew something about Brexit said this was stupid, and rightly so: the final Brexit polls showed Brexit losing by about 0.5%, and Brexit went on to win by 3.8% — a polling error of 4.3%. The global elites who had been handicapping the race had been predicting a loss for Brexit, but they had ignored the polls (which showed a close race). The elites looked like idiots after Brexit won, and rightly so, because the lesson of Brexit is you should always pay attention to the polls.

So when Trump supporters started saying they were going to win by beating their polls, “just like Brexit,” those of us with sense went and checked the polls.  At the time (right after the third debate), Trump was losing by an average of 7 points.  In other words, even if Trump beat his polls by 4%, “just like Brexit,” he’d still lose the election by 3%!

Brexit comparisons three weeks ago were silly.

Brexit comparisons today are not.

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For the Record, Trump is Evil (Clinton, Too!)

I was asked this morning whether my deep, profound objections to casting a direct vote for Donald Trump are based solely on his (total lack of) character, or whether Trump has actually campaigned on promises to enact intrinsic evils. While this was the first time the question has been put to me directly, it wasn’t the first time I’ve seen similar. There seems to be an idea going around that, while Trump has done bad, gross, perhaps illegal things in his private life, his public political platform is free of any intrinsic evils, and thus conscientious voters can feel free to support him.

“Intrinsic evil,” for those who haven’t seen the phrase before, is a bit of a magic wand in voting ethics debates, especially Catholic voting ethics debates. To briefly explain:

A candidate who supports something that might cause evil (but might not) is a candidate who might, debatably, be worthy of your support. Tax plans are often used as an example of this kind of thing: people of good conscience can disagree about whether it would be best for our society if we raised taxes on the rich or cut them. People of good conscience can even disagree about really important, life-and-death matters, like whether or not a certain war is a just war.

But there are some questions which are absolutely beyond debate. If a candidate supports rounding up the Jews, putting them in slavery camps, and then gassing them, that is an intrinsic evil. It is evil not because of its causes or consequences, but in and of itself, with absolutely no room for debate. A candidate who supports this is unacceptable, and must be opposed. The only case in which a voter can ethically support a candidate who supports intrinsic evil is when all viable candidates support intrinsic evils, and the voter is thus forced to either choose the lesser of two evils or not vote at all. In that case, the voter may, in conscience, cast a vote for the candidate who seems “less likely to advance such a morally flawed position and more likely to pursue other authentic human goods”

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A 2016 Compromise: “Voting the Slate”

Minnesota Presidential Electors, DFL, 2008
You thought Minnesota voted for Obama in 2008. Minnesota actually voted for these guys. Read on to see what difference it makes.

For swing state voters, there are no good choices on Election Day. As Ross Douthat argues, it is too dangerous to vote for Trump. As Janet Smith argues, it is too dangerous not to. As Rachel Lu argues, for me to signify support for Trump by voting for him risks injury to my soul (for that matter, the same case applies to Clinton). Yet it seems to me that, under our fundamentally flawed first-past-the-post voting system, failing to use my vote to advance the best available version of the common good risks the same injury. As far as I can tell, they’re all right.

We talked about the awfulness of all our choices back in May, so I won’t belabor this point except to say that, in the six months since I wrote that post, things have somehow gotten worse. Those of you who don’t live in swing states are very, very lucky. (I posted a full list of “safe” and “swing” states on Saturday morning.) Those of us who do live in swing states have been trying to figure out how we are going to vote.

I’ve been leaning toward supporting my preferred presidential candidate, Mike Maturen of the American Solidarity Party. (Here is his platform. It is imperfect, but better than what you’ll get from Trump.) Crucially, a vote for Maturen is not just a symbolic gesture in Minnesota: if Maturen gets 1% of the total (~30,000 votes), the Solidarity Party gains official status in Minnesota, which brings with it public financing. And public financing means that an alternative to the Republican and Democratic Parties — which is absolutely essential — will be able to run more candidates for more state offices in 2018. My vote for Maturen could thus do real good in Minnesota.

However, many of you do not live in Minnesota, so the practical argument for Maturen doesn’t apply. Many others who do live in Minnesota still wonder whether it is morally justifiable to help a minor party gain public financing in one state if the price is the election of the Greater Evil major-party candidate. (And, because we are a swing state, it very well could mean exactly that.)

I hear you. Heck, I agree with you: if I allow Clinton to win by supporting Maturen instead of the only viable alternative to Clinton, I won’t be able to look my daughter in the eye. On the other hand, if I allow Trump to win by voting for Trump, I still won’t be able to look my daughter in the eye!  It seems I’d better study her eyes closely, because I won’t ever see them again after Tuesday!

After several weeks of thought, I think I’ve found a compromise. It’s not perfect, and I’m not convinced it is the best solution. I may still vote for my Solidarity Party of Minnesota. But it is the closest I’ve come to a solution that my conscience can accept. Some of you may find the distinctions it makes too fine, too academic, to be taken seriously. All I can say is, this is the best I can do. I offer my compromise here for those of you who might find it helpful.

I call it Voting the Slate. Continue reading

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Does Your Vote Matter? (Plus: Some Endorsements!)

Throughout this election, I have hoped that my state, Minnesota, would be a “safe state” for Clinton or Trump. This would free me to vote my conscience with no worries at all.

Neil Patrick Harris sings A Better Way starring Paul Ryan
If you haven’t seen This American Life‘s new song about Paul Ryan, it’s a good anthem for ’16.

After all, the whole argument for voting for one of the major-party candidates instead of for a third party is that only the major-party candidates are viable alternatives to one another. But, in a safe state, there is no viable alternative to the winner, so you can feel free to vote for anyone. Even if there were a dramatic upset, enough states would already have been carried by the underdog to ensure that candidate’s victory in the Electoral College with or without your state’s help. So, no matter what you do, your vote in a safe state fits the wide definition of a mathematically wasted vote. Therefore, in a safe state, you should just vote for the person you want most to be president, even if that person is a fringe third-party candidate.

So I have carefully watched the list of safe states grow and evolve throughout this election. Sadly, Minnesota never appeared on it. The full list is below.

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