Guest Essayist: Gary S. McCaleb, Senior Counsel, Alliance Defense Fund

Article II, Section 1, Clause 4

4:  The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

“Chusing the Electors,” or “Interstices and the Constitution”

“Interstice” is a word that has long bemused me for some long-forgotten reason.  Interstice refers to the space between things; usually small gaps within a larger framework.  You can’t escape interstices—you will find interstices even between the most precisely machined and measured surfaces.

The language of our Constitution might be thought of as being precisely machined—each part fits “just so” with the next part, and the whole has worked so well that it has been amended just 17 times since the it and the Bill of Rights became effective over 200 years ago.  Having so few gaps that have had to be plugged by amendments over the years suggests that the Constitution’s interstices are pretty darn small.

The clause of which I speak today reinforces that notion, as it exemplifies the Founders’ attention to detail in their drafting.  It reads, “The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

This was originally numbered as Clause 4 of Article II, Section I, but, well, an excessively large interstitial gap showed up in the original Clause 3, which dealt with how votes were counted in the Electoral College.  The election of 1796 revealed that under the original Clause 3 vote-counting scheme, the nation could wind up with a president from one party and a vice-president from the opposition party.  And the election of 1800 further exposed the flaw, as it became evident then that a straight party-line vote by the electors would result in just that scenario:  a president and vice-president from different parties.  That was scarcely a recipe for smooth government.

So the 12th amendment was enacted to solve that problem; the original Clause 3 was thus superseded, and voilá, the original Clause 4 was renumbered to Clause 3 with its original text unchanged.

Of course, this short Clause does not stand alone in the great legal scheme of things; Congress had to act to set the date, and it did; 3 U.S.C. § 7 reads, “The electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of such State shall direct.”  So despite the great hullabaloo about the popular elections in November, the “real” election takes place in December, when the Electoral College votes.

By deferring to Congress to set the exact date for the electors to vote, the Framers built flexibility into the Constitutional system so that minor procedural adjustments could be made without invoking the cumbersome amendment process.  That approach reflects great wisdom, when you consider that these men who drafted with quill pens created a document that functions effectively in an age of near-instantaneous communication.  So even a humble, small procedural clause in the end demonstrates just how finely crafted this document is…!

Gary McCaleb serves as senior counsel for the Alliance Defense Fund at its Team Resource Center in Scottsdale, Arizona, where he leads a litigation team comprised of attorneys and support staff at offices in District of Colombia, Arizona, Kansas, California, Louisiana, Georgia, and Tennessee. He has litigated religious liberty and free speech cases in federal and state trial and appellate courts throughout the United States. McCaleb graduated with honors from Regent University School of Law in 1997 and is admitted to the Arizona state bar.

Guest Essayist: Gary McCaleb, Senior Counsel with the Alliance Defense Fund

As a constitutional attorney asked to chat a bit about Federalist No. 76, I certainly did not expect to use knowledge gained as a U.S. Navy sailor in the 1970s from a book published in 1890 about history from the 1660s to help me explain a constitutional commentary drafted in 1788—but I will.

Federalist No. 76 recognizes that every government needs a stable of civil servants, who in turn must be secured for service with reasonable dispatch and with some assurance of quality.  The paper plays off a consistent theme of our founding era—to balance each grant of authority (and concomitant power) with some restraint on the authority.

In a nutshell, Hamilton takes the familiar balancing of powers among the executive, judicial, and legislative branches down a notch as he considers how to expeditiously staff the government with high quality persons, while restraining the appointment power lest it be used by the President to untoward ends.

Hamilton broadly considers the benefits and risks of vesting the appointment power in a single person; or in a larger group of representatives, or in some mix of the two.  The idea of a purely democratic appointment system he rejected out of hand—the distances and slow communications of the time precluded that option.  And while there is great efficiency in granting one person the power to appoint, that vests too great a power to shape the government in the image of one man.

The Constitution, Hamilton notes, splits the difference—the President has complete discretion to nominate, subject only to the “advice and consent” of the Senate.  This secures the efficiency of centralizing these key selections, while providing a modicum of restraint via the Senate’s review.

As Hamilton predicted—and subsequent practice confirms—the Senate seldom shoots down a Presidential nominee, for many reasons:  Most nominations are simply uncontroversial, so review is superfluous.  And often, nominees intended to advance an agenda don’t always do so once in office; uncertainty about future performance complicates the review.  Worse, for the controversial nominations, the Senate cannot be sure that refusing consent won’t lead to an even less palatable nominee the next time around.

Thus, Hamilton must answer the question:  “To what purpose then require the co-operation of the Senate?”  His answer:  “[T]hat the necessity of their concurrence would have a powerful, though, in general, a silent operation.”  In short, Hamilton sees the potential for Senatorial brouhaha, or even denial of consent, as a political risk that by its very presence tempers the discretion of the Chief Executive.

What Hamilton propounds in political terms sounds like a peaceful application of classic concept of naval warfare—an idea called the “fleet in being.”

That concept was popularized in a seminal work on global military strategy, Alfred Thayer Mahan’s The Influence of Sea Power upon History, 1660-1783, published in 1890.  In assessing how sea power impacted the matters of man, Mahan found that political and military decisions could be profoundly impacted by the mere presence of a small but competent naval force.

The classic example arose in World War I, when the small German High Sea Fleet did little but sit in port—yet the constant threat that it may sally forth and salvo forced the British to commit significant combat resources to contain the German fleet in its harbor.  As warfare modernized and combined arms became the norm, the “fleet in being” was renamed “force in being,” and the principle applied more widely.

Thus, the mere fact that the Senate must review the nominations serves as some check to the President’s fearsomely strong nomination power—even if the votes against the President “never leave port,” so to speak.

Senate review means that with each nomination that proves dubious, contentious, or both, the President must spend his political capital.  When the highest profile nominations come, he must weigh the risk of pushing his agenda with the risk of having his ambitions die in the fire of a dissenting Senate, or expending the last of his capital in the fight.  Given the politicization and profile of the most important nominations (so much so that a new verb—“borking”—came into the American lexicon), the wise President will pull back from fringe politics.

The balance is imperfect, but that was likely intentional—to grant greater review power would have frustrated every administration’s efforts to staff the government.  While this undoubtedly permits a degree of undue partisanship in the process, the ultimate impact is mitigated by the higher level separation of powers.  In sum, the system performed very much as predicted, which affirms the wisdom of our Founders in drafting the Constitution.

Wednesday, August 11th, 2010