Publius-Huldah's Blog

Understanding the Constitution

Trashing the 12th Amendment with the National Popular Vote

By Publius Huldah

The compact for a National Popular Vote (NPV) is a destructive scheme. Yet it’s been approved by several States; and is pending in others. Since the text of the compact no longer seems to be set forth on the NPV website, we’ll look at the NPV bill now pending in Tennessee.

In a nutshell, the compact seeks to evade the 12th Amendment to our Constitution (where the States elect the President); and substitutes a national popular vote where inhabitants of major metropolitan areas elect the President.

The Constitution our Framers gave us

The federal government created by our Constitution is a Federation of Sovereign States united under a federal government for those limited purposes itemized in the Constitution; with all other powers reserved by the States or the People.

So that The States – The Members of the Federation – could maintain their independence and sovereignty, our Framers wrote these provisions into our Constitution:

  • State Legislatures were to choose the U.S. Senators for their State (Art. I, §3, cl. 1); and,
  • The States, as separate political entities, were to elect the President (Art. II, §1, cls. 2 & 3).

The People were to elect only their Representatives to the House (Art. I, § 2, cl.1).

James Madison explains in Federalist No. 45 (7th para), why this ensured that The States would maintain control over the federal government:

“The State governments may be regarded as constituent and essential parts of the federal government …Without the intervention of the State legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will, perhaps, in most cases, of themselves determine it. The Senate will be elected absolutely and exclusively by the State legislatures. …Thus, each of the principal branches of the federal government will owe its existence more or less to the favor of the State governments …” [boldface mine]

The result of State Legislatures choosing the U.S. Senators and controlling the election of the President [via the selection of Electors], was that the States would be able to control the federal government.

The 17th Amendment

But we threw away one of these safeguards when we foolishly ratified the 17th Amendment with the popular election of U.S. Senators. This is how The States – The Members of the Federation – lost their representation in Congress and their control of the Senate.

Art. II, §1, cl. 2 and the 12th Amendment

We abandoned the other safeguard when we foolishly ignored the procedures in the 12th Amendment where small bodies of specially chosen wise and prudent men (Electors) made the selections of President and Vice President for their State. We allowed Electors to become rubber stamps for the popular vote in their State.

Our Framers didn’t want popular election of the President because they recognized that People are easily manipulated by those who take advantage of their “hopes and fears”, to steer them towards candidates favored by powerful groups (Federalist No. 64 (3rd & 4th paras; Federalist No. 68, etc.)

Furthermore, under the 12th Amendment, the electoral votes of each State are split according to how the Electors vote. If Tennessee obeyed the 12th Amendment, it would work like this when selecting President: 5 Electors vote for Candidate X; 4 vote for Candidate Y; and 2 vote for Candidate Z. Those would be the vote totals for President which would be sent to Congress. The same procedures are to be followed in a separate vote for Vice-President. 1 The “winner takes all” practice followed in most States is unconstitutional!

How The National Popular Vote Scheme Will Work

Under the scheme incorporated in the NPV bill pending in Tennessee, all of Tennessee’s electoral votes would be awarded to the presidential candidate who receives the most popular votes in all 50 States and the District of Columbia.

The wording of the compact is deliberately obscure. In plain English, this is what it does:

Art. II

Each Member State will conduct a statewide popular election for President and Vice President.

Art. III

(a) & (b) The State Election official in each Member State will add up the votes cast in all the States and the D.C. to get the total number of votes cast nationally for each presidential ticket. The State official will then designate the presidential ticket with the largest number of votes nationally as the “national popular vote winner”.

(c) & (g) Electors will then be appointed in each Member State who are to cast all their votes for the national popular vote winner.

So! If the popular vote in Tennessee is for James Madison, but the total national popular vote favors Adolf Hitler, then all of Tennessee’s 11 Electoral Votes are awarded to Adolf Hitler.

Indeed, the winner of the national popular vote will end up with all the electoral votes for every State.  And do not think that the winner will fail to claim a “Mandate” for whatever he wants to do.

 The States Can’t Lawfully Enter Into A Compact Which Violates The U.S. Constitution!

Every aspect of the NPV violates the 12th Amendment.  It sets up a method of electing the President and vice-President which is altogether repugnant to our Constitution.

Furthermore, Art. I, §10, last clause, prohibits States from “enter[ing] into any Agreement or Compact with another State” “without the Consent of Congress”.  So, whether the NPV Compact also violates Art. I, §10, last clause, depends on whether Congress consents to it. But Congress may not lawfully consent to unconstitutional compacts of the States!

Under The NPV Scheme, Votes From Major Metropolitan Areas Will Decide Presidential Elections.

Most of the Population of these United States is located in a few major metropolitan areas. Under the NPV scheme, these areas would decide the elections for President!

See this 3D map (scroll down) showing how the major metropolitan areas voted in a recent presidential election.

The NPV is not about “making every vote count”. The NPV is about guaranteeing that every future presidential election is decided by inhabitants of major metropolitan areas. And it further diminishes State sovereignty.

What Should We Do?

Repeal the 17th Amendment. We must henceforth elect to Congress only those who are committed to repealing the 17th Amendment. This is the only way The States can regain control of the Senate.

Return to the 12th Amendment. We must dismantle the present unconstitutional and corrupt system and return to the method of electing the President and Vice President established in our Constitution. State Legislators could restore to their States right now the power to control the President! All States have to do is obey the 12th Amendment! Also, specially chosen Electors are far more likely to choose good Presidents than the ignorant masses which fill our major cities.

Even in its present perverted form, the “Electoral College” serves two important purposes: (1) It balances the influence of the heavily populated urban areas with the more sparsely populated rural areas; and (2) gives the smaller States a voice in the election of President.

As a People, we need to STOP being so eager to amend a Constitution we have never read and don’t understand.

Endnote:

1 For an illustration of how voting under the 12th Amendment is to be conducted, see THIS under the subheading, The 12th Amendment Establishes Procedures For Voting By Electors.”

 

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February 19, 2016 - Posted by | 12th Amendment, 17th Amendment, Election of President, Electoral College, Electors, National Popular Vote | , , , , , , , , , , ,

25 Comments »

  1. Reblogged this on standupspeakoutblog.

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    Comment by standupspeakoutadd | September 24, 2016 | Reply

  2. The point of the 12 amendment is the Electors. Who are the electors? We are told that we the people are the electors but it seems like a different thing with the state picking them. Could this also lead to slanted votes as they would be picked by special interest working in state legislatures.

    Pastor Richard C Wilmot, BRR ( Black Robe Regiment)

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    Comment by Pastor Richard C Wilmot | September 21, 2016 | Reply

  3. Dear Publius,
    Thank you for an interesting and informative post. Your suggestion to repeal the 17th Amendment is crucial to the survival of the States; however, the plan might not be plausible. Since the popular vote elected our current senators, it is likely that not a single senator would hand over power back to the States, let alone two-thirds of the Senate and House(a convention to propose amendments also seems highly unlikely). What are your opinions about trying to restore some power to the States through an amendment that would allow nullification? Although this would not return the Senate to the States, this idea does give the States a say when unconstitutional legislation becomes law. Finally, what do you think about the Supreme Court and their overreach in some recent cases such as in Obergefell v. Hodges? How should we stop the Court from trampling on States’ rights? I would love to hear your opinions on these topics.

    Sincerely,
    18hz

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    Comment by 18hz | April 28, 2016 | Reply

  4. […] Source: Trashing the 12th Amendment with the National Popular Vote « Publius-Huldah’s Blog […]

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  7. Reblogged this on PUMABydesign001's Blog.

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    Comment by bydesign001 | March 1, 2016 | Reply

  8. My understanding is that each state has the right to establish whatever method it chooses for allocating its electoral votes. I see nothing in the 12th Amendment to the contrary.

    Most states have chosen a winner-of the popular-state-vote-takes-all allocation so as to maximize a state’s impact on an election. Maine and Nebraska each allocate 2 electoral votes to the winner of the state, and 1 electoral vote to the winner of each congressional district — a very fair arrangement, but it does not maximize the influence of these two small, population-wise, states.

    At first glance I see nothing wrong with a state deciding to allocate all its electoral votes to the winner of the national popular vote, but it would be foolish for small states to do so. I believe some have, but they are progressive small states, so foolishness runs rampant there.

    The point about states being prohibited into entering compacts without congressional authorization is interesting, but I don’t see why a compact is needed — each state inclined to foolish decisionmaking is free to make such decision independently. Progressive states have little to lose, as they are dominated by reliably Democratic urban centers. Any reliably conservative state that is dumb enough to give its power and influence to the urbanized states deserves a Darwin Award.

    If there is verbiage in the 12th I have overlooked, please hit me over the head with it.

    Thanks.

    Like

    Comment by skookumchuck55 | February 26, 2016 | Reply

    • You illustrate the mindset which has destroyed this Country. Your focus is entirely on YOUR understandings, what YOU see, what YOU see nothing wrong with, on YOUR interpretations; etc.

      And you obviously haven’t bothered to read the 12th Amendment.

      This is not an Opinion Forum where people are invited to share their views on constitutional issues. Please read the comment policy.

      A person who seeks TRUTH must cast his precious “opinions” in the trash and go whereever TRUTH sends him.

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      Comment by Publius Huldah | February 26, 2016 | Reply

    • To clarify a few points:
      1. Art. II Sec.1 clause 2. (not changed by the 12th Amendment)
      Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. (Reason for the 2nd clause is they wanted no influence or pressure by those already holding office.)

      However, the point I want to clarify is that the State Legislature decides on the method of appointment of their allotted Electors. The Legislature is given no authority over the outcome of the Electoral votes. The Constitution does NOT give the states exclusive control over awarding the states electoral votes. The state legislatures are to design the method of appointment of the individual electors, not control the outcome. (p. 20) Awarding the electoral votes bypasses the independence of the electors. (pp. 81-84) Because we are running in a mode that the Constitution did not design, the states have turned the outcome over to the political parties. The state legislators do not represent their states, they are pawns of their party, contrary to the intent of the Constitution. The Electors are owned by the parties. (pp. 82, 87)

      2. True, “most states have chosen a winner-of the popular-state-vote-takes-all allocation so as to maximize a state’s impact on an election.” This is because of party politics taking over state legislatures. (Publius-Huldah makes a great point that the State Legislatures could and should take back their responsibility of the method of appointment of the presidential Electors of their state. It would be very difficult because the political parties control the legislators as well, because their parties also got them into office.) Correct; Maine and Nebraska could have a split vote, but last I checked it has never happened, the popular party in each state, still wins all the electoral votes.

      3. “I see nothing wrong with a state deciding to allocate all its electoral votes to the winner of the national popular vote, …” That is because we are looking at it with our 21st century eyes, and we have done it that way for so long, we do not look to what the Framers designed or even for a method that would result in Presidents that would look out for the best interests of the United States, rather than their own interests or their party interests.

      4. The point we are missing, and almost no one understands, is that the Framers rejected the option of electing a President for the United States by popular election by the people. (Publius-Huldah explained it very well.) The only office to be popularly elected was the House of Representatives. Also a most important point is that the Framers designed a method of choosing a President, to avoid campaigning, seeking office, making promises (usually legislative) to buy votes, intrigue and cabal. The man was not to seek the office;, the office would seek the man. (A man who campaigns for office is a good sign we don’t want him.)

      5. The method to do this was that the appointed Presidential Electors in each state would meet in their own state, on the same day, (no political party machinations–primaries in states early, jumping the gun) to discuss the qualifications, the merits, the past performance, the service rendered in their states and nation and each Elector NOMINATE two of the very best possible presidential candidates they could find. (Why two? So they would not be campaigning for one, and provide more nominations.) (pp. 17-27) They were not designated as one for President and one for Vice-president or one first choice or second choice. They all should all be well qualified. They were not voting on predetermined candidates who had been campaigning for months and years. The Electoral votes were nominating votes. (p. 22) They did not have to agree or conform. The Electors were to be wise individuals and independent thinkers.
      Art. II, Sec.1, clause 3. “They shall make a list of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate.” They would be opened and counted in joint session and the candidates would be known and the election would be carried on as outlined in the Constitution.

      This is where the beauty of the American constitutional federalism would come into play as the States would most often make the final choice for President, each State having one vote. The tragedy is, that the machinations of party politics took over so quickly, that the original Electoral College system was never given a “fair experiment”. The debates in the Senate on the 12th Amendment reflect very clearly those who understood the beauty of the system (Samuel White, Uriah Tracy, William Plumer pp. 74-77) and those who were more concerned about party control.

      We are already operating under a corrupt system of electing a President, however the NPV is another step in the wrong direction because it solidifies the concept that the president should be selected by popular vote. Only one branch, the House of Representatives, was to be elected by popular vote. By having the President and Senate and House of Representatives all elected by popular vote, we lost some very critical checks and balances in our federal government. The current perverted electoral college vote, could depart from the results of a strict popular vote, but cannot provide a better caliber of candidates, which was the purpose of the original Electoral College. The NPV will not provide better candidates either. (pp. 12-15)

      Page numbers refer to an in-depth examination of the system the Framers established in the Constitution of 1787 for electing a President for the United States:
      “The Evolution and Destruction of the Original Electoral College”. A PDF copy for only $4.00 is available at: http://www.freedomformula.us or hard copies there or on Amazon.

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      Comment by Carolyn Alder | February 26, 2016 | Reply

      • Carolyn, Why don’t you send this in to the on-line papers for publication? If you want contact info for some, email me publiushuldah@gmail.com

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        Comment by Publius Huldah | February 26, 2016 | Reply

  9. This is what happens when you do not teach the Constitutions (State and Federal) in the schools. By having an ignorant population the few can feed horse____ to the many. We have an ORS statute at 336.057 that says the Constitution shall (mandatory) be taught from 8th grade to 12th grade and all four years of college. I did several polls over the years and not one middle school or high school complied with the statute. Not even close. Doug.

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    Comment by Douglas R. Smith | February 19, 2016 | Reply

  10. Thank you for making the point that the Framers did not want the president to be elected by popular vote. The House of Representatives was the only office to be popularly elected. However, the Framers designed an even more ingenious system for electing a president than what you have described.

    The few wise Electors in each state (appointed by whatever method their state legislature determined) were to NOMINATE the best possible presidential candidates in each state, on the same day, and submit the list of names signed, sealed, certified votes to Congress to be opened and counted in joint session. The Electoral votes, were nominating votes! The top 5 would be voted on in the House of Representatives, each state having ONE vote. Thus the states had an even more significant role in choosing a president, than you already mentioned. The Electors in each state were not voting for self-appointed, office seekers who had been campaigning across the nation for many months. Electors would nominate on past performance, not campaign promises.

    The 12th Amendment was actually a large step in the wrong direction, away from what the Framers had designed in the Constitution, by dividing the nominations and final vote into president and vice-president. The vice-president was to be the individual who would receive the highest number of electoral votes after the president had been chosen. Constitutional government was destroyed and replaced by “party government”. The beautifully designed American constitutional federalism was destroyed first by the 12th Amendment corrupting the Executive Branch just like the 17th Amendment caused the destruction of the state government representation in the Senate.

    For an in-depth examination of the original electoral college system as established in the original U.S. Constitution see: “The Evolution and Destruction of the Original Electoral College”.

    Like

    Comment by Carolyn Alder | February 19, 2016 | Reply

    • The 12th Amendment was ratified and has been part of the supreme law of the Land since 1804.

      Like

      Comment by Publius Huldah | February 19, 2016 | Reply

      • I was hoping the Framers method of electing a president established in the 1787 Constitution, was worthy of examination, not just dismissing it. Using your same logic, the 17th Amendment was ratified and has been part of the supreme law of the land since Apr. 8, 1913. So do we want to return to the Constitution or just continue playing party politics?

        Like

        Comment by Carolyn Alder | February 20, 2016 | Reply

        • Carolyn, That is your issue. Not mine. I have enough to do without worrying about your issue. It’s yours! You deal with it – don’t fault me for not picking up your issue and promoting it.

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          Comment by Publius Huldah | February 20, 2016 | Reply

  11. Reblogged this on Starvin Larry.

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    Comment by gamegetterII | February 19, 2016 | Reply

  12. Reblogged this on The zombie apocalypse survival homestead and commented:
    And yet another attempt to impose socialism by the rabbitscum.

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    Comment by mobiuswolf | February 19, 2016 | Reply

  13. They just never stop, do they? They want to run us into the ground. This isn’t going to end well for one side or t’other.
    I second that ‘thank you” for your hard work and perspicacity.

    I’ll pass this on.
    Fred

    Like

    Comment by mobiuswolf | February 19, 2016 | Reply

  14. You are one amazing teacher and are due many thanks for the efforts and the information they provide. So, thank you again.

    Like

    Comment by Ivan Berry | February 19, 2016 | Reply

  15. Dear Publius,

    I only wish I had your knowledge and ability to teach with your writing. But, then I would have to give up some of the few talents that I have. Great work again. Marketing and Economics are my areas of strength( buy gold and silver, take your money out of banks). You have to scare hell out of people to get them to do anything…. Check Drudgereport every day. God Bless.

    Andrew

    Like

    Comment by Andrew C. Wallace | February 19, 2016 | Reply

    • Well, thank you! God gifted us with the ability to do what he wants us to do – I just wish He had gifted me to be a ballerina, or a great singer.

      Like

      Comment by Publius Huldah | February 19, 2016 | Reply


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