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November 8, 2016

Why Elections Today Are So Contentious

The American people have allowed tremendous power to coalesce in DC.

It wasn’t that long ago when national elections were more perfunctory, less volatile and certainly less contentious. Those halcyon days are long gone! Today the bile and vitriol spewing over the airwaves mirrors that of society generally, and the seemingly innocent question, “Can’t we all just get along?”, is body-slammed with a resounding “Hell NO!!” So what happened?

To borrow a meme from infamous Clintonista James Carville, “It’s the power, stupid!” That is, it’s the tremendous power the American people have allowed (demanded, even) to coalesce inside the DC Beltway, and particularly at 1600 Pennsylvania Ave. Decisions that used to be made by individual states or local governments are now decided somewhere in Washington, DC, often by a single branch, or even worse — and more often the case — an unaccountable sub-entity within that branch. As a result, elections nowadays are “for all the marbles.”

We offer as a case-in-point the Supreme Court of the U.S. One facet of the current election is that it is effectively a referendum on who will replace the late, great Antonin Scalia and give the winning party a 5-4 majority on an otherwise (arguably) evenly divided bench. Less than a century ago, the Court was largely apolitical; now it’s an ideology-based “final arbiter” of national law. Instead of faithfully interpreting the plain text and intent of a given law, many justices skew their judgments to “outcome-based” jurisprudence, in which they decide the outcome they want and then “walk-back” their logic — and, unfortunately, their “law” — to support the desired result. Thus whichever party chooses the next justice “wins,” by-and-large, any issue arriving at the doorstep of SCOTUS. But the problem doesn’t stop there.

No, it worsens exponentially because every branch of the federal government has too much power, in one way or another. For example, the Executive Branch has arrogated to itself the power of all three federal branches, temporarily relenting only when checked by another branch of government. As His Worship is fond of saying, “If Congress won’t act, I will” or, alternatively, “I’ve got a pen and a phone.” Translation: “I don’t need the Legislature: I am the Legislature!” In any case, the current Occupation Force inside the Executive Branch does not consider the Separation of Powers doctrine as an impediment to its reach or effectiveness.

As for Congress, with the passage of the Seventeenth Amendment morphing senator selection by state legislature into popular election, senators are no longer accountable to their states, but only to “the people.” That might sound good at first blush, but it crippled states’ abilities to check federal government power. Moreover, Congress generally has too much power. The Constitution enumerates specific responsibilities for Congress, the president and the Supreme Court. Those not specifically granted to these branches are supposed to be reserved either to the states or to the people — the Tenth Amendment. Today, the Tenth Amendment is all but a dead letter. Like the Executive Branch, Congress — using the courts as well as the Executive Branch — has assumed far more power than “We The People” ever granted it under the Constitution.

The aggrandizement of power by the federal government was a primary concern of the so-called “Anti-Federalists,” who opposed ratifying the Constitution on the grounds that the federal government would eventually become all-powerful and too distant from those it governed. They were also concerned that the states would become mere conduits through which the federal government would exercise its overwhelming power. Fast-forward to today and the Anti-Federalists have been prophetic. An increasingly distant government brandishes immeasurable power over a vast expanse, over hundreds of millions of people with conflicting ambitions and needs. The input of the average American citizen to the federal Leviathan is so remote that the output — the federal government’s influence upon that individual in daily life — seems totally arbitrary. “No taxation without representation”? What about the case of “no representation,” period?

However, the real issue here is not “who’s right” in a national election, but rather the broader issue of “good governance.” Originally, the Founders viewed the states as individual “experiments” on how to “get along” as a people. The idea was that if a particular state went awry with respect to governance, people would “vote with their feet” and relocate to a better state. With the power of the federal government increasing and the power of the states diminishing over time, these “experiments” became less and less distinguishable: Today all is now “federal.”

The Founders did provide an “out” through which states can bridle an over-expansive federal government: Article V of the Constitution states, in part, “The Congress … on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which … shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress.”

The basic idea behind Article V was — and is — that if the federal government went so off the rails that it was on the verge of becoming uncontrollable, the states could reel it in, via a “Convention of States.” A discussion of the merits and perils associated with such a convention is beyond the scope of this piece, but we’ve written of the merits and risks previously.

Contentious elections are merely a symptom of a much bigger problem: Too much power amassing in the federal government and a discontinuity between its applied power and the will of the people who have no real say in its control. The solution to both problems is to again disperse the federal government’s power by redistributing it across all three branches of the federal government and among the states. But such an act won’t happen from any initiative within the Beltway, which has become so drunk with the mass-accrual of power that the vast majority of today’s members of Congress and senior Executive Branch leaders are millionaires — another clear indicator of the magnitude of the problem. No, it will only happen if the states and the people resolve to cage the tiger.

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