By Lambert Strether of Corrente.

Since at least early November, Clinton loyalists and other establishment figures have, with increasing intensity, urged that the Electoral College function, not as a rubber stamp[1], but as a deliberative body, in order that Donald Trump be prevented from assuming office, based on their interpretations of Federalist 68. I believe that a careful reading of Alexander Hamilton’s text will show that these interpretations are wrong, for reasons I am about to explain. (Caveat that I’m relying on my ability, as an informed voter, to read and understand Hamilton’s prose.[2] I’m not going to do legal research into the electoral college; my impression is that it’s a backwater in Constitutional law in any case.) After giving my reading, I’m going to evaluate the few — and remarkably similar! — articles from Clinton loyalists and their allies. I’ll conclude with a brief comment on a change to the constitutional order contemplated by the Clinton loyalists.

The Framers were, as Hamilton writes in Federalist 68, creating a “system.” When I think of designing and documenting a system, I think of the system’s goals, its requirements, its specification, and its implementation. For example, suppose I am about to construct, not a “popular systems of civil government” (Federalist 9), but a kitchen sink. An example of a goal: “A kitchen sink to wash the dishes.” An example of a requirement: “The sink shall not allow sewer gas to escape. ” An example of a specification: “The sink shall have a plumbing trap that creates a water seal.” An example of implementation: “The plumber shall install a trap, part no. XXXX …..” And if we think of the Federalist Papers as tech doc for our Constitutional system, we see that it conforms to that structure (except for the implementation part; that’s up to us!)

The overarching goal of Federalist 68 is to ensure an orderly transition of power after a Presidential election (or what today we would call “continuity of government”). Hamilton’s topic sentence, the first (paragraph one):

The mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents. The most plausible of these, who has appeared in print, has even deigned to admit that the election of the President is pretty well guarded .

(As a sidebar, we should remember that the Framers were bootstrapping an entirely new system in a world otherwise ruled by monarchs and emperors, in which dynastic wars of succession were not uncommon and were greatly feared. So I think we may forgive them for any bugs we might find.)

Hamilton then lays out several requirements (he calls a requirement a “desiderata”) for the mode of appointment. Excerpting paragraphs two through six:

1. “…desirable that the sense of the people should operate…”

2. “…the immediate election should be made by men most capable of analyzing the qualities adapted to the station…”

3. “…desirable to afford as little opportunity as possible to tumult and disorder…”

4. “…every practicable obstacle should be opposed to cabal, intrigue, and corruption…”

5. “…the Executive should be independent for his continuance in office on all but the people themselves…”

With paragraph seven, Hamilton shifts to specification (“All these advantages will happily combine in the plan devised…”). I’m going to ignore implementation for now.

One thing to notice in Hamilton’s system that these desidarata (or requirements) are not rigid or mechanical; they are supple, and necessarily political. For example, suppose “the sense of the people” operates, but the “men most capable of analyzing the qualities adapted to the station” disagree. Suppose that the “men most capable” override the “people,” but “tumult and disorder” results. Should the men then not have acted as they did; and if their actions caused “tumult and disorder,” were they in fact (based on performance outcomes) “most capable”? What if the “men most capable” do turn out to be corrupt because “practicable obstacles” have failed? What if the Executive (however chosen) takes “office” through the workings of “cabal” or faction, and not the sense of the people? What if “tumult and disorder” were potentially on a Civil War scale? If so, would “appointing” an otherwise less than ideal candidate be preferable? As you can see, the combinations are virtually limitless, and Hamilton’s genius was not to prescribe outcomes, but to establish a field of play where opposing forces could come to resolution, and an orderly transition of power be achieved. Now let’s look at some of today’s talking points, and put them in the context of Hamilton’s requirements (or desiderata). Here it will become evident that I regard the Clintonian effort not only as quixotic — they need to shift 37 Republican electors to throw the “appointment” into the House — but as flawed at every level, including morally[3].

1. “…desirable that the sense of the people should operate…”. One Clinton loyalist talking point (for example) is that this requirement should be specified by making our votes count equally. First, the Federalist Papers certainly didn’t think so, or they wouldn’t have created either the electoral college or our Federal system of government — especially the Senate — as they did. Second, both campaigns knew the rules going in, and allocated their campaign resources on that basis. Arguing, at least after an election, that the electoral vote should match the popular vote reminds me of a football team arguing that they “really won” because they racked up the most yards, even though their opponent had the most points. That’s not how it works. Finally, when Clinton loyalists, having competed in a number of winner-take-all primaries, and having taken advantage of the entirely undemocratic superdelegate system, suddenly, after losing an election, start arguing that all votes should count equally, it looks remarkably like special pleading. This is important since it suggests the operation of a cabal and intrigue (#4) instead of principled advocacy.

2. “…the immediate election should be made by men most capable of analyzing the qualities adapted to the station…” Hamilton meets this requirement by arguing that a “a small number of persons will be most likely to possess the information and discernment requisite to such complicated investigations.” But discernment — absent simply selecting by class and cultural markers, or by partisan jerseys — is a slippery term. One might argue, based on performance, that no Acela rider has any discernment whatever. Or that a climate change denialist has no discernment. Or a “pro-choice” advocate. Perhaps, then, the test of discernment is simply that the “men” achieved the station in life that they did, and have the political power that they have. Cream rises.

3. “…desirable to afford as little opportunity as possible to tumult and disorder…” It strikes me as odd that a Clinton campaign that painted a vivid picture of the violence of Trump supporters[4] would simultaneously act as if violence was not likely if Trump supporters perceive, as they are likely to do in the event of a Clinton success, that their candidate was deprived of office through chicanery. Again, Hamilton isn’t writing a recipe for a perfect President; he’s providing a field of play where the game ends with an orderly transition of power. What would he think when the field dissolves into open violence?

4. “…every practicable obstacle should be opposed to cabal, intrigue, and corruption…”. Forget about intrigue — we’re talking about the Beltway — but let’s talk about “cabal.” Here is (part of) the definition of a “cabal” from my electronic OED:

cabal /kəˈbal/ noun & verb. l16. [ORIGIN: French cabale from medieval Latin cab(b)ala (Italian, Spanish cabala): see Kabbalah.]

A. noun….

2. A secret intrigue, a conspiracy; petty plotting. arch. e17. Burke Centres of cabal. W. Irving Cabals breaking out in the company.

3. A secret meeting (of intriguers). arch. m17. Marvell Is he in caball in his cabinett sett.

4. A political clique, a faction; spec. (C-) a committee of five ministers under Charles II whose surnames happened to begin with C, A, B, A, and L (Clifford, Arlington,

Buckingham, Ashley, and Lauderdale). m17. G. B. Shaw The radical cabal in the cabinet which pursues my family with rancorous class hatred.

It’s hard to see how the Trump campaign — at least in the context of the Electoral College — can be seen as a cabal. However, when a secret report from one intelligence agency is anonymously leaked, when the President — who can only have been briefed on the topic of that report all along, if the Presidential Daily Brief process is working as it should — asks for the report to be evaluated before the transition of power on January 20, and Senators from one party, campaign operatives from the Clinton faction of that party, and electors from that party demand that some (presumably sanitized) version of that secret report be briefed to electors before the Electoral College meets on December 19, it’s hard to see anything other than a cabal at work, especially given that not all the intelligence agencies agree with the secret report. In short form, Madison would be opposed to what the (still not moribund) Clinton campaign is doing, on systemic grounds. What happens in 2020 when different cabals pursue different ends with the same technique?[5]

5. “…the Executive should be independent for his continuance in office on all but the people themselves…” I’ll have more to say about the change in the Constitutional order that the Clinton loyalists are advocating below. However, given the sequence of events outlined above in desideratum #4, it’s clear that under Clinton rules, future Presidents would be subject to vetting based on secret reports from intelligence agencies. That’s hardly “continuance in office” based on “the people themselves.”

Having examined the actual text of Federalist 68, let’s now look at how it’s been distorted by the fun house mirror in Brooklyn. Take for example Clinton loyalist Dahlia Lithwick[6] on December 5. Lithwick is making the case for “faithless electors”; electors who vote for one candidate even though the voters in their state chose another.

We believe it is our constitutional duty to follow Alexander Hamilton’s intent for the Electoral College. He wrote in Federalist 68 that the Electoral College should protect the presidency [1] from one who is unfit, [2] one who is under foreign influence, and [3] one shows signs of becoming a dangerous demagogue. We do not believe that Mr. Trump passes these tests.

(Here a Republican elector gives the same tests in the order [1], [3], [2] on December 9. Looks like a meme, and I’ve seen it go by on the Twitter. It probably works because it’s a case of tricolon. Things that come in threes are always easier to remember.) There are several problems with this formulation.

To begin with, as we have seen, Hamilton’s goal was not to “protect the Presidency” (what a weird, fearful, post-9/11 formulation) but to create a system that ensured an orderly transfer of power. And his desiderata (requirements) for doing so don’t map to Lithwick’s formulation at all, and he has important desiderata (avoiding “tumult and disorder,” and “cabals”) that Lithwick simply erases. However, Hamilton does cover topics roughly aligned with Lithwick’s talking points, so let’s look at each in turn.

[1] One who is unfit. Here is what Hamilton wrote:

The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.

Fair enough. I mean, obviously we don’t want a James Buchanan Andrew Johnson Warren Harding ….but in what sense are the virtues and defects of Clinton and Trump commensurate in terms of “requisite qualifications”? The voters don’t seem to like either the billionaire promoter or the professional politician very much; by that test, they’re both qualified, or neither is. The only way to make candidates commensurate, it seems to me, is to look at the policies that both espouse, and the likelihood of their implementation. Peter Beinart does that, and comes down — unsurprisingly, since Beinart is a fully paid up citizen of HillaryLand — for Clinton, but isn’t he really simply relitigating the election? Didn’t the voters make that judgment already?

[2] One who is under foreign influence. Lithwick’s talking point dramatically misrepresents Hamilton’s views. Hamilton wrote:

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?

Here is what “creature” means in this context, once more from the OED:

creature /ˈkriːtʃə/ noun. See also critter. me. [ORIGIN: Old French & mod. French créature from late Latin creatura, formed as create verb: see -ure.]

4. A person who owes his or her fortune to, and remains subservient to, another; a puppet. l16. Ld Macaulay The corporations were filled with his creatures.

To claim Hamilton’s assent to their schemes, Lithwick (and Clinton loyalists generally, as well as those whom they have managed to persuade) must show not that Trump is “influenced” by a foreign power, but that he is their puppet, or in modern terms, their operative or agent; mere business dealings are not enough. Disagreeing with The Blob on realpolitik is not enough. Extraordinary claims demand extraordinary evidence. Where is it? (And if it is produced, can we trust it any more than we trusted aluminum tubes, white powders, and uranium yellowcake when Bush was gaslighting us on WMDs?)

[3] One shows signs of becoming a dangerous demagogue. Hamilton does not use the word “demogogue” in Federalist 68 (and presumably, had he meant to use it, he would have; when he entered King’s College in 1773, he had a classical education that would be extraordinay by today’s standards). Leaving aside the weasel word “dangerous” (as in “Dangerous Donald,” I suppose, one of the many ideas from Brooklyn that don’t seem so bright in the light of day), here is what Hamilton actually wrote, in the Federalist 68 passage that seems closest to what Lithwick claims he wrote:

Talents for low intrigue, and the little arts of popularity , may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States.

First, “the little arts of popularity” aren’t at all the same as demagogery. Second, I’m having a hard time thinking of a politician in our day and age who lacks a talent for “low intrigue” and does not employ “the little arts of popularity.” Sanders, perhaps. Certainly neither Clinton nor Trump.

* * *

Finally, I said that I’d highlight a change in the Constitutional Order that would take place if the Clinton loyalists succeed in their goal. Here is article 101 of the Chilean Constitution under Pinochet:

The Armed Forces[,] dependent on the Ministry responsible for the National Defense[,] are constituted solely and exclusively by the Army, Navy and Air Force. [They] exist for the defense of the country and are essential for national security and guarantee the institutional order of the Republic .

The Clinton loyalists are doing what Pinochet did. They are making intelligence agencies the guarantors of “the institutional order of the Republic.” From now on, if they manage to set a precedent, every Presidential candidate will have to be vetted before the electoral college by intelligence agencies. That is the system they will have set up. I don’t think Hamilton would think much of it.[7] And there’s a word for that. It starts with an “F.”

NOTES

[1] The Stein recount effort failed to shift any electoral votes from Trump to Clinton. Hence the electoral college totals of November 8 stand.

[2] Federalist 68 has a Flesch-Kincaid Grade Level of 16.1.

[3] See Ian Welsh: “This is where Nazi/Fascist/Hitler/Camps rhetoric leaves you. Nothing is off the table.”

[4] The Clinton campaign also pushed Jon Ralston’s “fake news” of the Nevada chair-throwing incident, and erased supporter Wendell Pierce’s assault on a Sanders supporter.

[5] Time presses, so I don’t have time for a discussion of rice bowls in the national security class. However, remember how Madison thought of corruption: Not as a quid pro quo, but as the use of public office for private ends. Every self-licking ice cream cone at the Pentagon or in Langley is corrupt, by that definition.

[6] I don’t mean to pick on Lithwick. If I had time, I’d do a full media critique and find Patient Zero for the talking points. Readers?

[7] March 9, 2017: Or maybe Hamilton would have thought it was a great idea!