The Founding Fathers, in Their Infinite Wisdom

The Founding Fathers, in Their Infinite Wisdom February 11, 2019

Many of you have probably been following the cascading scandals surrounding Democratic leadership in Virginia. First, a photo surfaced on Governor Ralph Northam’s yearbook page showing a person in a Ku Klux Klan costume standing next to a white man in minstrel-like blackface. Next, Lieutenant Governor Justin Fairfax found himself faced with allegations of sexual assault. Finally, Attorney General Mark Herring, third in line in order of succession, preemptively admitted to donning blackface in the 1980s himself. And here’s perhaps the strangest part of all of this.

If all three of these men were to resign or be ousted, the governorship of the state of Virginia would go to Republican state House Speaker Kirk Cox. This seems odd—that the state’s voters could choose a Democratic governor and then end up with a Republican governor without holding a new election.

This morning, I came across an article on The Root covering Georgia’s ongoing election scandal: it seems the number of black voters who voted for governor in that state but not for lieutenant governor defies explanation. These voters voted in lower numbers for lieutenant governor than they did for agriculture secretary or other down ballot races, and these undervotes only occurred for those who used voting machines—and not for mail-in ballots in the same precincts.

I was still stuck on another point, though—the fact that governor and lieutenant governor races are separate. This seems like a terrifically bad idea: you could end up with a governor of one party and a lieutenant governor of the other. This is apparently the case in eighteen states. (Yes, I was curious, and yes, I checked—the two races are separate in Virginia, meaning that Lieutenant Governor Justice Fairfax was not simply on Northam’s ticket.)

Because I live in the Midwest, I have never lived in a state that had the two races on separate ballots. But because I’ve always been a history buff, I immediately made the connection with something else—in the Constitution as originally written, the candidate with the most votes in the electoral college became the president while the candidate who came in second became the vice president. This created some, shall we say, very serious problems.

In the early republic, candidates who ran against each other in bitter contests subsequently found themselves installed as president and vice president. This situation was so uncomfortable for all involved that the election procedure was modified by Constitutional amendment in time for the young nation’s fourth presidential election.

Interestingly, the idea of a vice president did not come up until very late in the Constitutional Convention. Initially, the delegates decided that the Senate was to elect its own President, and this individual would be the chief executive’s successor. An 11-member committee tasked with conducting leftover business changed this. This committee was tasked with deciding the electoral process for the chief executive, and it was they who invented the electoral college.

The committee of 11 was concerned that each state’s electors would simply vote as a block for a candidate from their own state. To correct for this they required each elector to vote for two candidates, one of whom must be from another state. But they worried the electors would cast the second vote for a throw-away candidate in order to bolster their own state’s candidate. In order to prevent this, they decided that the candidate who received the second-most electoral votes would be installed as Vice President, serving as President of the Senate and successor to the chief executive.

You can see why they thought this might make sense, but as it happens things didn’t turn out the way they thought they would. In their assumption that electors would vote for the candidate from their own state, committee members failed to foresee the rise of political parties. I think all of us, today, can concede that it would be a terrible idea to have a President Donald Trump and a Vice President Hillary Clinton (or vice versa).

In a similar sense, the current succession process in Virginia, where the governorship can go to a member of the opposite party if the governor and other top officials resign or are ousted, is creating its own problems: the possibility that the governorship could end up in the hands of a Republican is complicating Democrats’ willingness to clean house.

Curious when the current Virginia succession process was set up, I looked at Virginia’s original 1776 constitution and found that the governor was not elected by the people at all—instead, the governor was elected by the Virginia legislature. At that time, there was no lieutenant governor. Instead, the combined houses of the legislature elected a committee of eight “to assist in the administration of the government.” This body was then to elect a President, who would succeed the governor “in case of death, inability, or absence” of the governor.

I grew up in a conservative community that lauded the founding fathers almost as deities. Everything was to be about their original intent, which in retrospect assumes some sort of weird perfection on the founding fathers’ part.

But then, we’re talking about people who think paintings like this are edgy and profound:

I’m seriously curious about how Harriet Tubman and Frederick Douglass—in the far back left—feel about being included in this picture. But note the import—the Constitution is literally given to Americans by God. 

The fault lines in Virginia today are a reminder that those who designed our political systems were just as human and just as fallible as you and I are. Sometimes they overlooked things. Sometimes they didn’t think of things. Conservatives frequently tout our continuous use of the same constitution, even as other countries have adopted new constitutions over the years. This would seem to ignore the 17 amendments that followed the Bill of Rights—and the many ways in which our system of government has ceased to function effectively today.

As I close, I want to return for a moment to the ongoing situation in Virginia. The Virginia Legislative Black Caucus has called on Governor Ralph Northam to resign. On Friday, they also called on Lieutenant Governor Justin Fairfax to resign. They did not call for the resignation of Attorney General Mark Herring. Instead, they stated that they appreciate his honesty and are waiting to see him act to further reassure Virginians. This is a moment when the Virginia Legislative Black Caucus should be front and center. They’re speaking. Let’s hope others are listening.

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