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The election of Congress ought not be controversial, Americans have been electing their representatives in this country off and on for four hundred years. But of course it is quite controversial, made so by what’s at stake: raw political power. Whichever political party controls Congress controls the most important and powerful branch of government. While some Americans view the Executive Branch as the pre-eminent, most powerful branch of the three, even a superficial comparison shows this to be incorrect – Congress rules!
The “election method” of Congress has many facets: who is entitled to vote, how they vote, even such mundane things as how votes are counted (does a hanging chad count?). As Madison reminds us: “the essence of government is power and power, lodged as it must be in human hands, will ever be liable to abuse.” And abuse we have: election fraud is a problem and growing despite charges by some that such claims are a myth.
Popular elections by the people were so liable to abuse that the Framers discarded this method when considering the election of the President, and decided instead on “Electors chosen for that purpose.” In Speaking of abuse, in 1777, James Madison lost the only election he would ever lose, to the Virginia House of Delegates, because he refused to provide Orange County voters with “spirituous liquors,” which his tavern-owner opponent could (and did) pour abundantly.
So let us consider first the question of who should be allowed to vote.
The Constitution presumes, but does not require, voting by the people. It is difficult to see how voting could be supported as a natural, inalienable right, so it must therefore be a civil right, one subject to denial or change at the whim of the government.
The Founders are repeatedly denigrated today for not allowing women to vote; and while there is some truth to the claim, unmarried women were allowed to vote in some states as long as they met the property requirements of “freeholders.” Why unmarried women only?
Under the English common law doctrine of coverture, the husband “covered” his wife’s legal identity throughout their marriage. Blackstone’s Commentaries described it this way:
By marriage, the husband and wife are one person in the law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing.
The husband’s vote was thus viewed as reflective of the interests of the entire family.
The amount of property a person must own to vote varied from state to state, but the prevailing notion supporting a property requirement was that this produced a polity with “skin in the game,” voters more likely to vote with care; their property potentially at jeopardy through a careless or ill-informed choice.
Today, property requirements for voting have been removed, and the franchise limited only by age and citizenship. Which provides the basis for another controversy: why limit voting to citizens? Shouldn’t, every tax-payer, whether citizen or not, whether in the country legally or illegally, be able to vote? Shouldn’t they also have a say, through the ballot box, in how their taxes are spent? Many on the Left certainly think so. Others see voting as not just a privilege, but a high privilege of citizenship.
“Let each citizen remember at the moment he is offering his vote that he is not making a present or a compliment to please an individual – or at least that he ought not so to do; but that he is executing one of the most solemn trusts in human society for which he is accountable to God and his country,” wrote Samuel Adams. (Emphasis added)
Our dismal voting participation rate, hovering as low as 37% in mid-term elections, vividly demonstrates the sense of hopelessness many feel when considering the effect their individual vote will likely have on the trajectory of the country. Career politicians, acting in their own self-interest, are perpetually elected thanks to powerful moneyed interests; a recipe for disaster.
With a re-election rate of well over 90% it seems hard to believe that we have an entirely new House of Representatives every two years, but that is exactly what the Framers intended. In fact, it has been said that a Representative is always running for office; no sooner does he or she catch their breath from the last (successful) campaign when they must start all over again with a new one.
Not so with the Senate; the Senate was intended to be the more stable and deliberative of the two houses of Congress. Thus, the Senate does not change personnel en masse like the House; only a third of the Senators are up for reelection each time; and this was by design as well.
Although some today decry the filibuster rule in the Senate, I think a bigger problem to the long-term health of the republic lies in the fact that Senators are no longer appointed by their states. Thanks to the 17th Amendment, Senators are elected by the people of the state and no longer vote in line with the interests of the legislature of their state as they once did. This Amendment permanently shifted the intended balance of power in Congress, to the disfavor of the states which created the government in the first place. To restore that balance of power will require the repeal of the 17th Amendment, and that proposal is shrouded in controversy.
It is important to the principle of self-government that there be continuity and stability in the Congress, and the initial Constitutional design was intended to produce just that. But the original balance of power in Congress is equally important, and that deserves our attention today.
Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes a weekly essay: Constitutional Corner which is published on multiple websites, and hosts a weekly radio show: “We the People, the Constitution Matters” on WFYL AM1140. Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution. Gary can be reached at firstname.lastname@example.org, onFacebook or Twitter (@constitutionled).
 The first elected government was installed at “Jamestowne” in 1619.
 sSpeech in the Virginia constitutional convention, 1829
 See: http://dailycaller.com/2016/10/20/heres-what-voter-fraud-looks-like-in-23-states/
 See: https://www.brennancenter.org/issues/voter-fraud
 in the Boston Gazette, 1781.
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