Outside of religion, in the sphere of human relations, there is definitely a place for binaries. We understand our relationships in such terms. We lie, or we tell the truth; we do what we say we will, or we don’t; we hold to a covenant, or we don’t. Most importantly—though instances be challenging or difficult to prove—we decide if we will hold purposefully to ideals that we have espoused.
In questions of politics or of governance, the existence of ideals is essential. Reckoning on our tendency to fall away from our duties, we must always see our actions in relation to ideals. Moreover, we must always expect the worst when we fall short—hoping that things will turn out for the best is unacceptable, and countenancing risk (occasioned by distortions or shortcuts in our proceedings) is equally unacceptable.
The preceding is the logic that is manifest in the structure of the United States government, and in the governments of “the several states.” Our constitutions presume the vigorous interplay of many interests, relying on the collision of those interests to produce, first, workable approaches to the problems of governance and, second (and ultimately more important), preservation of the intrinsic elements of the political process. The essential elements of our republics cannot be treated as consumables, as expendables to be fed into the maw of purported necessity.
A present situation illustrates this. The store of trust and allegiance built up over two centuries of American law-making is at risk of being squandered on a logically untenable scheme. I refer to the Independent State Legislature Theory, whereby it is to be reckoned that state legislatures (narrowly defined) are the only state entities that have a voice in the handling of state functions as regards the election of national representatives, senators, and presidential electors.
None of this should be viewed other than as the Revolutionary generations saw such matters. It does not matter if this theory were to be put into practice in a minority of states, or practiced only sparingly, or indeed used at all—what matters is whether the theory gains legal purchase. As we ought to be endlessly reminded by James Madison, “it is proper to take alarm at the first experiment on our liberties.”
The illegitimacy of the Independent State Legislature Theory can be established simply by appealing to those elements that give any legislature legitimacy in a democracy. Those three elements are:
First, that the electorate should fairly represent the population of the polity;
Second, that the basic presumption of decision-making is majority vote; and
Third, that the majority ought not to be permitted to disenfranchise the minority (leading, in the most tragi-comical outcome, to a second and third, etc., whittling down of the electorate.)
This third point, if it is not fastidiously borne out, can lead to the degrading of the other two. A constriction of the franchise will lead obviously, first, to an un-representative electorate and, second, to a tendency to minority rule. That is why we need constitutions, with their establishments of undergirding logic for any legislature.
It is true that long-standing practice has allowed for the expulsion of members of legislative bodies, but the common American experience has been to expect ostensibly aggrieved members to appeal for judicial review or to hope for countervailing action by the executive. The Independent State Legislature Theory, by contrast, would allow for a simple majority of a state’s legislature to effectively dictate the state’s national representation, both in Congress and in the Electoral College. Conceivably (and therefore possibly) gerrymandered legislatures in collections of states (perhaps representing a clear minority of the country’s population) could control the federal government in perpetuity.
Once instituted, this control would enjoy near-total freedom of action as against federal intervention, and this control would allow virtually any conceivable restriction of the franchise among a state’s population. The majority of the country would have its fate decided by a rigged minority, making voting as citizens an empty exercise. Most of the country would have, among other things, taxation without representation.
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