OUR UNDEMOCRATIC ELECTORAL COLLEGE

It’s downright undemocratic for someone to win the Presidency and lose the popular vote! Well, I guess it is, but the American government is not a democracy. The heart and soul of democracy is majority rule. Whatever the majority of the people want, that’s what the government is going to do. Athens was a democracy. Whatever the voters wanted, that’s what they got, and eventually the voters voted their country into ruin with the disastrous Sicilian Expedition, which led to catastrophic defeat in the Peloponnesian War.

America's government, on the other hand, was designed to see to it that in certain situations the majority’s will could be ignored. America started out as a group of thirteen independent states, just as Greece was a group of many independent city-states. The Greeks experimented with confederations of city-states known as the Delian League and the Peloponnesian League. It didn’t work out, and Greek unity was achieved only with the swords of Philip of Macedon and his more famous son, Alexander the Great.

The thirteen independent states in American also entered into a confederation that didn’t work. When the Articles of Confederation proved inadequate, the thirteen independent states achieved unity by the pen rather than the sword. Under the Constitution, each state surrendered some, but not all, of its sovereignty to a central Federal government which was modeled, not after the Athenian democracy, but after the Roman Republic. There was a certain amount of democracy under the Roman Republic, but it was set up so that the majority didn’t always prevail. There is a certain amount of democracy in the American Republic, but it was set up so that the majority didn’t always prevail. That’s why Wyoming (with a population of 582,658) has just as many Senators as California (with a population of 39,144,818).

Under America's republican form of government, the Senators of the 24 most populous states could vote unanimously for a bill, expressing the will of their 264,053,680 constituents, and be defeated by the unanimous vote of the Senators from the 26 least populous states, expressing the will of only 56,692,912 constituents. That’s downright undemocratic, isn’t it? It sure is, but that’s the way our government works. Each state still has a modicum of its sovereignty, and that sovereignty counts for something. It protects the citizens of the smaller states from being bullied by the larger states. Where that modicum of sovereignty is most readily apparent is in the Electoral College where we pick our presidents.

One way of looking at the election is that, as of today’s tally, Clinton is winning by 59,755,284 votes to Trump’s 59,535,522 votes, a difference of 219,762. That’s 0.18% of the vote cast—less than two-tenths of one percent. That's a difference which pollsters would say lacks statistical significance. That’s also a difference which would mandate an automatic recount in most states which require automatic recounts (most states which require an automatic recount mandate a difference of less than 0.5%, one-half of one percent). If we abolished the Electoral College, would we really want a nationwide reprise of the travesty of the Florida recount of 2000? Do you know what a popular vote margin that narrow would mean if we abolished the Electoral College? It would mean that nobody’s vote would count because nine septuagenarians wearing black dresses would decide who became President. I’d rather not have the  Supreme Court decide who was going to be President. I’ll take my chances with the Electoral College, thank you.

Another way of looking at the election is that if Trump carries Michigan, Alaska, and Arizona (in all of which he is currently leading), the electorate of 30 sovereign states will have voted for Trump, but the electorate of only 20 sovereign states voted for Clinton. If he loses all three, then the vote will be 27 sovereign states for Trump and 23 for Clinton.

We don’t elect Presidents by popular vote or by the vote of individual sovereign states. We use they hybrid system of the Electoral College. Under our Constitution, Trump won by 270+ electoral votes. End of story. 

State sovereignty has been gradually eroded since 1776 until it is a mere shadow of what it once was. We need to cling to what little state sovereignty we have remaining, and the Electoral College is one vestige of state sovereignty that should remain.

Majority rule isn’t always a good thing. It frequently slips into majority tyranny. The urban majority can and often does run roughshod over the needs and wishes of the rural minority. The Electoral College is one way of preventing the urban majority from trampling the rights of the rural minority. Look at the USA Today county-by-county map of how the vote went. Those blue states almost disappear when you color in the red counties outside the major metropolitan areas.

If we abolish the Electoral College, we abolish one of the last vestiges of state sovereignty, and we might as well change our name to the United Provinces of America.

HOW IS COLIN KAEPERNICK LIKE MACBETH?

I have been studiously trying to ignore the Colin Kaepernick flap, but the media doesn’t seem to want to let it die. Kaepernick is exercising a right that was won with the blood of American soldiers over a span of two centuries. That’s right. Our armed services have fought, bled, and died to insure his right to act like the north end of a southbound horse if he really and truly wants to do so. That’s the beauty of America. People are able to exercise their freedom of speech in incredibly offensive ways without fear of the government stepping in and hauling them off to a concentration camp. They may be ostracized by their peers; they may lose lucrative endorsement contracts; controversy-shy employers may fire them; but they are safe from government reprisal. 

And on the scale of 10-1 for subversiveness to the established order, Kaepernick’s action rates about a minus 2. Make no mistake, what he is doing is more an act of petulance than of courage. For comparison purposes, consider the gentleman in this photograph:

This gentleman’s refusal to give the Nazi salute didn’t risk loss of an endorsement contract; it risked loss of his very life. I salute his courage, and I hope he didn’t wind up in a death camp. The only physical injury Kaepernick risks by his refusal to stand for the National Anthem is splinters in his backside. I do not salute his courage, and if he needs tweezers to remove those splinters he won’t be getting them from me.

Senator Sam Ervin of Watergate fame has been quoted as saying that “the Constitution gives a man the right to make a damn fool of himself.” Paul R. Clancy, Just a Country Lawyer: A Biography of Senator Sam Ervin, p. 256. Kaepernick is exercising that right to the hilt. Why do I say that he is making a fool of himself? Kaepernick says he is upset about mistreatment of people of color by police officers, therefore he isn’t going to stand for the National Anthem. Apparently he flunked Civics in high school. The local police don’t work for the Federal Government; they work for state and local agencies which are controlled by different sovereignties (the states) than the United States Government. The Constitution was set up to give the United States Government limited power to oversee the day-to-day activities of state sovereignties. And anyone who has kept track of the news knows full well that the United States Government, in the form of the Civil Rights Division of the Department of Justice, agrees with Kaepernick and is doing what it can to prevent mistreatment of people of color by local law enforcement officers. See, for example, the Justice Department reports on the Baltimore Police Department and the Ferguson Police Department. 

So Kaepernick decides to speak out against mistreatment of people of color by law enforcement officers, and he decides to do so by disrespecting the government which is trying to prevent mistreatment of people of color by law enforcement officers. If that’s not the definition of a damn fool, I don’t know what is. All of which puts me in mind of a remark Macbeth made just before Macduff ran him through with a sword: Kaepernick’s protests is “a tale told by an idiot, full of sound and fury, signifying nothing.” Macbeth 5:5. So let’s all start worrying about something significant and forget about Colin Kaepernick’s illogical protest.

GRAND JURIES: COMMON SENSE AND COMMON LAW

I was interviewed by the Lake City Reporter the other day about “common law grand juries.” It seems that a “common law grand jury” has “indicted” our duly elected State Attorney, Jeff Siegmeister, on a charge of treason, and the Reporter wanted my opinion on what the “common law grand jury” had done. Trying to be as diplomatic as I possibly could, I used a precise legal term. I said it was “a bunch of baloney.”

In the first place, what they “charged” Siegmeister with is neither treasonous nor criminal, and it could conceivably render the “common law grand jurors” themselves subject to prosecution under Florida Statute § 836.09, which says

If any person shall state, deliver, or transmit by any means whatever, to the manager, editor, publisher or reporter of any newspaper or periodical for publication therein any false and libelous statement concerning any person, then and there known by such person to be false or libelous, and thereby secure the publication of the same he or she shall be guilty of a misdemeanor ….

I doubt that Siegmeister takes them seriously enough to prosecute them, but that does appear to be an option which is open to him.

In the second place, there is not now nor has there ever been a legally recognized “common law grand jury.” We derive our law from two sources: statutory law and common law. We can distinguish common law from statute law by its origin—common law comes from judges, statute law comes from legislatures (and historically from kings).   As I will demonstrate, grand juries were not created by common law but by statute law. We’re going to have to look at a little history for me to make myself clear.

The earliest record we have of anything like our modern grand jury goes back to the rule of the Anglo Saxon King Ethelred the Unready. In 997 Ethelred enacted his Wantage Code, which provided:

Let twelve elder freemen, and the foreman with them, retire and swear upon the holy book which is given into their hands that they will not accuse any innocent person, nor screen any criminal.

Thus the grand jury was born as an accusatory body which preferred criminal charges against those suspected of wrongdoing. It has retained this function down to the Twenty-first Century. Modern grand jurors take an oath very similar to the one sworn by Etheldred’s jurors. For example, Florida’s Grand Jurors swear they

… shall not make a presentment against a person because of envy, hatred, or malice, and … shall not fail to make a presentment against a person because of love, fear, or reward.

Florida Statute § 905.10.

Our next evidence of comes from 1166, during the rule of the Norman King Henry II. Under his rule the Assize of Clarendon was enacted. The Assize provided for an accusatory body of twelve men to prefer criminal charges against wrongdoers.

A watershed moment in the development of the grand jury came in 1681, when King Charles II sought to punish the Earl of Shaftsbury, a political enemy. Charles insisted that the London grand jury indict Shaftsbury for treason, and he further insisted that they hold their meetings in public so that he could see how each individual member of the grand jury voted. The grand jury met in secret and refused to indict Shaftsbury. Ever afterward grand juries have met in secret.

The London grand jury’s defiance of King Charles gave the institution a reputation as a protector of the innocent. Only a few years before the American Revolution, the English jurist William Blackstone described the grand jury in glowing tones, writing that

[S]o tender is the law of England of the lives of the subjects, that no man can be convicted at the suit of the king of any capital offence, unless by the unanimous voice of twenty four of his equals and neighbors. [12 grand jurors and 12 petit jurors].

Commentaries on the Laws of England, Volume 4, *301.

Our Founding Fathers agreed with Blackstone, providing in Article Seven of the Bill of Rights that

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.  

Initially, this only applied to the Federal government, but almost all states have enacted statutory provisions creating local grand juries. Depending on the jurisdiction, a grand jury can consist of as few as 18 but no more than 24 grand jurors. In Florida the prescribed number of grand jurors is 21, with 15 constituting a quorum. Harking back to the days of Etheldred, it requires a vote of at least twelve grand jurors to bring criminal charges against anyone.

Grand juries, therefore, are and always have been creatures of statute. Whether it’s the Assize of Clarendon or the Bill of Rights, either a king or a legislative body has passed a law enabling the formation of grand juries. As I previously said, common law does not look to statutes, but to previous decisions of judges. In the strictest sense, then, there can be no “common law grand jury” because no grand jury was ever created by a judge’s decision.

As a matter of fact, the common law would not apply in the United States if it had not been enacted into law by local statutes. (Louisiana, for instance, is not a common law jurisdiction. Their legal system is based on the Napoleonic Code).  Florida Statue § 2.01 makes the common law applicable in Florida by saying

The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the 4th day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state.

If our legislature had never passed any sort of law concerning grand juries, then quite possibly the Assize of Clarendon’s grand jury would be the law of Florida. But it’s not because it is inconsistent with Florida’s statutory law creating grand juries. At the risk of being redundant: when the Florida legislature enacted its laws relating to grand juries, it voided any previously existing English law on the subject, either statutory or common.

Conclusion: 1. There cannot be a “common law grand jury” because there never was a common law grand jury. English grand juries prior to July 4, 1776, were created by statute. 2. Even if there were such a thing as a common law grand jury, the Florida legislature voided it when they enacted laws governing grand juries. 3. Any group which is purporting to act as a “common law grand jury” is engaging in a legal nullity.