November 26, 2024 • 34 mins
This week Roger welcomes Michael C. Maibach to discuss the significance of the Electoral College in the American republic, its origins, and the historical context of its establishment. They also discuss the ongoing debates surrounding the Electoral College’s relevance and how to view the Constitution through the lens of Natural Law.
Michael C. Maibach is the founder and director of The Center for the Electoral College and is also the current distinguished fellow at Save Our States, an organization dedicated to defending the Electoral College. He also serves on the board for multiple nonprofit organizations including the Witherspoon Institute, Institute of World Politics and the James Wilson Institute.
He is a proud supporter of TFAS and speaks frequently at TFAS programs.
The Liberty + Leadership Podcast is hosted by TFAS president Roger Ream and produced by Podville Media. If you have a comment or question for the show, please email us at podcast@TFAS.org. To support TFAS and its mission, please visit TFAS.org/support.
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Episode Transcript
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Speaker 1 (00:02):
Welcome to the Liberty and Leadership Podcast,
a conversation with TFAS alumni,faculty and friends who are
making an impact.
Today I'm your host, roger Ream.
Today we welcome Michael CMaybach, the founder and
director of the Center for theElectoral College.
He is also the currentDistinguished Fellow at Save Our
(00:24):
States, an organizationdedicated to defending the
Electoral College.
Michael has held severalpositions in civic engagement
and global business diplomacy,including a decade-long role as
the president of the EuropeanAmerican Business Council.
He also serves on the board formultiple nonprofit
organizations, including theWitherspoon Institute Institute
(00:48):
of World Politics and the JamesWilson Institute.
Prior to this, michael spent 18years at Intel, where he
established their governmentaffairs department and became
their first vice president ofglobal governmental affairs.
Michael is a supporter of TFASand speaks frequently at our
student programs.
(01:08):
Michael Maybach, welcome to theshow.
Thank you, roger.
Delighted to be here.
We scheduled this conversation,I think, in October, partly
because I feared the worst withthe upcoming November
presidential election and thatbeing a disputed outcome that
would be dragging on intoDecember, even January, before
we know who won.
Well, that didn't come to pass,but as we record this podcast,
(01:32):
it appears the victor of theElectoral College vote will also
be the one who won the popularvote.
But even today, some two weeksafter the election, there are
states like California that arestill counting the vote.
I assume if it were not for theElectoral College, the outcome
of the election two weeks agomight still be in doubt.
Is that correct?
Speaker 2 (01:54):
Well, the states that are counting their votes have
already called the winner forthe presidential.
It's the congressional andlocal races that are closer that
are being counted, except inPennsylvania, where they're
recounting only the US Senate.
So there's no doubt that any ofthese recounts would affect the
presidency at all.
But it really does speakvolumes about the contrast
(02:17):
between, let's say, florida, whohas their results that night
election night because they'vehad so many reforms since the
debacle of 2000 presidentialelection, and those states that
have chosen to, one might say,game their elections with so
many artifacts drop boxes,ballot harvesting, voting
(02:37):
without ID.
We have at least 17 statesvoting without IDs, but the
presidential was decided prettymuch within 24 hours.
Speaker 1 (02:46):
And that's partly at least, thanks to the Electoral
College.
Speaker 2 (02:49):
It is when I give my talks around the country, roger,
I actually end.
I say to my audiences I want toend with a positive note, the
sinking of the Titanic.
And then I show a picture ofthe Titanic in the four stages
of its sinking.
It took two and a half hours tosink and I asked the audiences
remember in the movie when theyhit the ice.
(03:11):
And then the captain has hissenior staff around the table
life.
He lays out the design of theship and you can see the
compartments.
And he said and of course Ishow this in my talk on the
(03:32):
screen to save money, we did notclose each and every
compartment, we left them openat the top because the hull was
so thick we never thought it'dbe pierced.
And so, gentlemen, in two and ahalf hours this ship will sink
because the water will spillinto one and another and another
and cause it to break apart,which is exactly what happened
in two and a half hours.
Well, in 2000, when we had theFlorida recount, we had 49
(03:53):
states stand back and watch therecount of Florida, because all
50 compartments were sealed.
And one of the great thingsabout the Electoral College, we
have actually 50 Democraticelections and then we aggregate
those, we don't have a nationalpopular vote.
So these recounts really don'timpact on the presidential
decision, no matter how manymillions they could find in
(04:15):
California, I guess.
Speaker 1 (04:17):
Yeah, that's a very good analogy.
Why don't we start with youcommenting on, kind of
explaining to us what theorigins of the Electoral College
were?
Because I know it was a resultof compromise, like much of what
took place during theConstitutional Convention, and
there were other thingsconsidered even beside the
current Electoral College and anational popular vote.
(04:38):
So if you would talk some aboutthat, Michael, that might set a
good foundation for ourconversation.
Speaker 2 (04:44):
When I give my talks I begin with Socrates taking the
hemlock and his student, plato,witnessed that trial and of
course he wrote a book calledthe Apology, which is the story
of the trial and death ofSocrates.
And this was a jury of over 300citizens who voted by majority
vote to kill the old man forasking questions of the youth.
(05:05):
Plato writes in the Republic,his most important book, in
chapter 8, democracies alwaysbecome tyrannies.
And Aristotle, his student, hisbest student, deals with that
and struggles with that, whydemocracies become tyrannies.
And in his book, the Politics,he talks about the mixed regime
(05:27):
and the Romans picked this up,the checks and balances.
And in the Roman Republic itwas Caesar, the Roman Senate and
the assemblies they called them, and they had sort of a rough
set of checks and balances.
Polybius talks about this inhis book, book six, as it turns
out, and Montesquieu in Spiritof the Laws.
(05:51):
My point is that the foundersstudied history and they knew
that to be free you had toconstantly check human nature,
checks and balances, what wewould consider triangles of
liberty, which is the checks andbalances.
Now, the founders were alsochildren of the age of science.
Newton was the earliergeneration and he had the law of
(06:14):
triangles, the second law oftriangles, and if you look at a
bridge, it's a truss bridge.
It has a triangle as well.
It's the strongest geometricfigure there is.
So the founders had in theirmind if we want to be free, we
have to write a constitution,just like the Ten Commandments
were written.
They took their cue from thewriting of the Ten Commandments.
We have a written constitutionthat had built in sort of
(06:36):
scientific checks and balances.
So they had in mind we want aparliament or a Congress, like
the British had, and we have tohave courts, because there were
trade wars between the statesand no courts to adjudicate
things.
So the courts, originallyfederal courts, were there to
settle disputes between thestates.
But do we have the Congresselect the president or do we
(06:58):
have an independent executive?
And Washington never saidanything in the floor of the
Constitutional Convention, butin the meals, because they met
for 116 days on and off inPhiladelphia that summer, he
would say to them have you everbeen on a ship in a storm
without a captain?
Because for seven years I ledthe revolution against the
(07:23):
British and I had 13 captainsunder the Articles I didn't have
a commander-in-chief and thatwas a major problem.
In a major crisis situation,you need to have a captain, we
need to have an independentexecutive, but also to serve
with a veto, to check andbalance and to appoint the court
with the consent.
So, as we were very familiartoday, but this was whole cloth
they were designing this thing.
(07:44):
So we have the triangles of ourfederalism the executive, the
legislative and the judicial.
To keep people free.
The Bill of Rights doesn't keepus free, it's the checks and
balances that do so.
They asked themselves how are wegoing to elect that independent
president?
Is it a vote of all the states?
Well then, it would always be aBostonian, somebody from New
(08:04):
York or Philadelphia or maybeVirginia.
That was the population centers.
Most states didn't have a lotof people.
So you had four highlypopulated states and nine small
ones Not going to have a popularvote.
If we have the Congress electthe president, like the prime
minister is elected in GreatBritain, they have a king and we
don't, and therefore they haveanother executive, but we don't
(08:25):
and we also don't want thepresident to be a toady or a
servant of the legislature,because then we'll have
legislative tyranny.
They feared tyranny from allpoints of the triangle.
Let's have an independentpresident?
Ah, let's have him elected bystates, and therefore we have
13,.
By states, and therefore wehave 13,.
(08:49):
Now, today, 50 popularelections and we aggregate those
into a presidential election.
And so it's ingenious.
It really makes sense when youthink of what they were trying
to do, but it's not easy forcitizens to understand, because
the electors go away.
They get elected by theirparties.
They go to the state capitoland they go away.
You mentioned the concern theirparties.
They go to the state capitoland they go away.
Speaker 1 (09:06):
You mentioned the concern about rural versus urban
, that you have these urbancenters, you know, and today
it's still kind of the EastCoast.
The West Coast and Chicago Iguess that have all the
population are a good part of it.
What about the issue of slavery?
Was that part of the discussionas well, where you had at the
time you had slave states andstates that had abolished
(09:26):
slavery or were free states?
Speaker 2 (09:28):
In my talk that I give, I actually, early on, show
pictures of rulers around theworld.
There's no democraticallyelected.
We had George III, louis XVI,philip in Spain, catherine the
Great, the emperors of China andJapan, etc.
I also show pictures of slavemarkets around the world because
(09:49):
I have to remind my audiencesthat slavery was in every
country in the world, either inthe slave trade or having slaves
themselves.
This goes back to the OldTestament, to earliest times, to
Thucydides in the histories,and so by Herodotus, and so we
have to understand that theyinherited slavery.
They didn't want it.
Matter of fact, when Jeffersonwrote the Declaration, one of
(10:11):
the complaints he wrote aboutthe English, which was cut off
in the final version of theDeclaration of Independence, was
that the British allowedslavery to be brought to North
America.
So in 1787, they not only werewriting the Constitution, but
they passed the NorthwestOrdinance which outlawed slavery
in the new territories, and sothey were thinking about we
(10:32):
don't want this thing to spread.
Also, every state was a slavestate.
Every state in 1787 had slaves.
New York had more than Georgiaat the time and therefore
slavery was not just a Southernthing.
Slavery is not mentioned in theConstitution, other than slave
trade was outlawed in 20 yearsand when Jefferson was president
(10:55):
he actually signed the law fromCongress to outlaw the slave
trade.
So they were trying to stop itfrom spreading outlawing the
slave trade a number of yearsand the only delegates early on
that voted against the ElectoralCollege when it came up were
Southern delegates.
The Constitution is not aboutslavery.
They maneuvered around slaveryas a difficulty.
(11:18):
They wanted hopefully, theIndustrial Revolution to
overtake.
Speaker 1 (11:22):
I imagine you're often asked about the fact that
you know, particularly in thelast 25 years.
We've had two elections now, Ithink, where the candidate that
won the most votes did not winthe electoral college, and so
that leads some to say it'santi-democratic which it
certainly is in terms of beinganti-majoritarian or
(11:42):
winner-take-all but how do yourespond to those criticisms that
the candidate most Americanswant to see as president doesn't
become the president?
Speaker 2 (11:51):
This is the central argument of those that want a
national popular vote, which isgee, we're a democracy and of
course we're not.
We're a republic.
On three occasions in the 19thcentury this happened 1824, 1876
, 1888.
And we can talk about those ifyou want, but those, for
different reasons, had differentbackgrounds to them.
(12:11):
1824, it was Andrew Jackson hadthe most votes, but he didn't
win the majority of votesbecause there were four people
running and he didn't win theElectoral College.
It was thrown into the House ofRepresentatives, where each
state has one vote, and that'show we settled that.
In 1876, there were federaltroops in three southern states,
part of Reconstruction, and noone knows who won the election.
(12:33):
This is Hayes-Tilsen thatelection, because those troops
were dealing with riots, becausewhites in the South did not
want blacks to vote in theirprecincts, and a great deal of
contested precinct resultsbecause of this.
So finally, the US Congress hada commission to appoint a
president, because they didn'tknow who won the electoral vote
(12:56):
or even the popular vote, and sothe commission chose.
It included a Supreme Courtjustice, chose Hayes to be the
Republican president, but he hada promise the Democrats.
The first thing he would do ascommander in chief is remove
troops from those three southernstates, which he did in.
That ended Reconstruction andthat set the stage,
unfortunately, for Jim Crow.
(13:17):
Because of what happened thereIn 1888, it was 100,000, 200,000
vote difference Very close,very close election.
It didn't happen at all in the20th century.
We had every president also hadthe popular vote Jack Kennedy
and Nixon.
It was very close and,depending on what really
happened in Chicago, we'll neverprobably know that, but in the
(13:39):
21st century, the 2000 election,bush had about 250,000 fewer
votes, less than 1% of the vote.
So it was almost a tie in termsof the millions of people that
voted and that was decided bythe Electoral College.
I would say parentheticallythat Bush won 30 states and Gore
won 20.
(14:00):
So that tells you somethingabout a nation of states.
Then it happened again in 2016.
This is Hillary Clinton versusTrump and in that case she won
two and a half million morevotes than Trump did.
And this really came fromCalifornia.
If you remove all the votesDemocrat and Republican from
California, trump would have wonthe national popular vote, but
(14:22):
California is such a one partystate that that really brings on
many millions of extra votes, Iguess you would say for one
party and that's the way it is.
That said, trump won 30 statesand Hillary Clinton won 20
states.
So if you visit more states andyou pay attention to more
states, you do get those kind ofresults.
(14:43):
This time we had a differentresult, where Trump won both the
popular vote and the ElectoralCollege vote.
No one expected him to win thepopular vote, but he did, and
that showed how deeply peoplewanted change show how deeply
people want to change.
Speaker 1 (14:59):
Would it be fair to speculate that, absent the
electoral college, candidateswould spend a lot more of their
time in just the heavilypopulated areas and unlikely to
visit some of these states thatnow they do visit?
Speaker 2 (15:09):
Absolutely 50% of the American people live in nine
states.
To put it another way, losAngeles County has more people
than 41 states.
New York City has more peoplethan 39 states.
The island of Long Island.
There is two counties.
One is called Nassau County.
Nassau County, which is half ofLong Island, has more people
(15:31):
than 10 of our states and it'snot part of New York City.
We would have people running forpresident just in the
population centers and thatwould be it.
Now people seem to think thatsupport the national popular
vote, that our two-party systemwould be sustained.
I think this is folly, truefolly.
We would have a dozen parties.
(15:53):
We would have billionaires withtheir own jets running their
own campaigns, totallyuntethered from political
parties that we have right now,flying from population to
population center running theirown PR campaigns, and we would
have many parties.
The average European Union.
There's 27 countries in theEuropean Union.
The average EU country has nineparties.
(16:15):
Nine parties and then they havecoalitions that elect their
head of government.
If America had nine or 12parties, we'd have a new Speaker
of the House every month.
We've only had one Speakerthrown out of office this past
year in our history.
The stability of our two-partysystem.
For a 300 million personrepublic is highly, highly
(16:36):
valuable that we just have twoparties and not 20, and just to
be able to legislate.
There are so many fruits of theelectoral college system, but
one is the two-party system.
Speaker 1 (16:48):
Now Maine and Nebraska do things a little bit
differently.
Could you explain that and giveme your thoughts on that?
Speaker 2 (16:56):
So Maine and Nebraska disaggregate their electors by
congressional districts, andthat's quite constitutional.
The Constitution says thelegislature in each state
decides how the electors arechosen.
All 50 states have popularvotes, but in Maine and Nebraska
they chose to disaggregate.
Why is that?
Maine, historically, had been aone-party state and so had
(17:25):
Nebraska, and so today, forexample, nebraska is a
Republican state largely andMaine a Democrat state.
And yet Trump won one electorfrom Maine, he won the third
congressional district, and MrsHarris won Omaha, which is a
heavily Democratic city.
And the reason these two stateshave done this, it seems, is to
make sure presidentialcandidates pay attention to them
(17:46):
and not take them for granted.
Now, every state could do this.
They could disaggregate alltheir electors by county
congressional district, by statesenate district.
They can even do itproportionally.
You know it's 30% of the vote,you get 30% of our electors.
If, in 2012, all the states haddone what Nebraska and Maine do
(18:07):
, romney would have defeatedObama.
He won many more congressionaldistricts.
And this is the case in almostevery case with the Republicans,
because they win so many of therural counties.
Trump just won 2,500 countiesand Mrs Harris won 500 counties.
The population centers reallyare much highly, more one party
(18:29):
than the others, it turns out.
Speaker 1 (18:31):
So I guess if you disaggregate and give them out
by congressional district,you're tying your electoral
votes to the gerrymandering thattakes place in these
legislatures.
Speaker 2 (18:41):
You know there's nothing perfect, including the
Constitution.
If we would do it that way,then the complaint would be my
gosh.
We'll have to have courts orsome independent commission
choose the lines.
But you know, the congressionaldistricts and legislative
districts are left to statelegislatures, and so if you want
to save democracy, you don'twant to remove the power of
(19:02):
districting, and they're alwaysgoing to be political.
Everything in politics ispolitical by its nature, right?
Speaker 1 (19:08):
Yeah, there is an effort underway by, I guess
mostly driven by forces who areopposed to our electoral college
, to form some sort of nationalcompact that would award a
state's electoral votes based onthe national popular vote.
What do you think about that?
Speaker 2 (19:25):
So there were some people in California unhappy
that Gore was not elected andthey asked a couple of
professors to come up with aplan.
They did, called the NationalPopular Vote Interstate Compact.
It was launched in 2006.
And the idea is, if statelegislators pass this compact,
(19:46):
they reach 270 electors.
In the compact it goes intoeffect the night of a
presidential election.
Talk about organized chaos.
There you would have it.
17 state legislatures have nowpassed the National Popular Vote
Interstate Compact.
They have 209 electors.
They need 61 more to have 270.
(20:07):
All 17 of those states and theDistrict of Columbia are all led
by one party, with the House,the Senate and the governor.
It has never passed without theHouse, the Senate and the
governor.
All being the same partyHappens to be a Democratic party
.
My job is not to be partisan,but this is the fact.
This is a product of theDemocratic party is to try to go
(20:28):
around the electoral collegesystem.
Now it's unconstitutional tohave such a compact.
We have the Compact Clause ofthe Constitution because the
small states in Philadelphia in1787 wanted to make sure the
large states didn't coalesceagainst them and therefore you
have to go to the Congress toget such a compact approved, but
they will never bring this tothe Congress because the US
(20:49):
Senate, you know, two senatorsper state they're not going to
go along with this.
The whole idea of having twosenators per state is to balance
the majority with minorityvoices across the population of
our country.
So the National Popular VoteCompact sits there with 209
electors.
They're running out of all bluestates.
(21:09):
Michigan was ready to pass it.
It seemed right after theelection if Mr Trump had lost
the popular vote, but theykilled their legislation NPV
legislation because he won thepopular vote, including he won
in Michigan, and that was amessage to the legislature we're
voting for Mr Trump, don't messwith this result.
Speaker 1 (21:32):
Are there any changes or tinkering that you would do
in terms of the way we electpresidents or the electoral
college, or is it pretty sound?
Do you think the way it is?
Speaker 2 (21:43):
Whenever somebody complains to me, they usually
have two complaints.
One is the national popularvote they would like to have,
but also the winner-take-allsystem.
We have 48 states who usewinner-take-all and what they
say is gee, all thoseRepublicans in California, their
vote doesn't count becauseCalifornia has many more
Democrats, and in Texas, allthose Democrats, their votes
(22:05):
don't count because theRepublicans in Texas.
And so what I say to them is ifyou really want to parse that
out, go to Sacramento or toAustin and ask the legislature
and the governor to reallocateyour electors by congressional
districts, like they do inNebraska and Maine, and then
(22:26):
you'll have all kinds ofdisaggregation of electors.
You know, in 2016, when Mr Trumplost to Mrs Clinton in Illinois
I'm a native of Illinois, wehave 102 counties in Illinois
Mrs Clinton won 12 counties.
Trump won 90 counties inIllinois and she got all of
(22:47):
their electors 100% because shewon the Chicago and the Collier
counties up there in Chicago.
But if we had done the Maineand Nebraska system in Illinois,
trump would have won a handfulof electors from downstate
Illinois and the same withDemocrats in Texas.
So there is a way to solve thatcomplaint and that is to do
(23:09):
what Maine and Nebraska do, andit's quite constitutional.
Speaker 1 (23:12):
Michael, what motivated you to get engaged in
this, to found your organizationand to work to preserve this
institution, that electoralcollege?
Speaker 2 (23:21):
Well, my first semester of college I had a
professor named Herbert Storingfrom the University of Chicago
and I took his class becausesomebody recommended I would
take his class and somebody inthe dorm.
I'd never been to collegebefore.
Of course I didn't knowanything about Herbert Storing
or Leo Strauss.
He was a student of Leo Strauss.
But our first paper we had towrite was for or against the
(23:44):
Electoral College.
And all 12 of us told him wewere going to write our paper
against the Electoral Collegeand he set aside the readings in
the library.
In those days there were nointernet.
So the readings were set asideand I sat there for a few days
and I read all these for andagainst arguments for the
Electoral College and I said, ohmy God, I've got to change my
(24:04):
mind.
You know Walter Burns andHamilton, all the rest.
For the first time in my life Iwas 18 years old I read
something that had mefundamentally changed how I
understood the Constitution andour country and the Electoral
College.
So I wrote my paper for theElectoral College, the only one
that did.
Young people don't like theElectoral College because
they're for democracy until theyunderstand that democracy is
(24:28):
problematic.
So since then I've published 14essays, so it's been sort of a
hobby of mine throughout my40-year business career.
And then when I got out ofbusiness I found out about the
National Popular Vote Compactand I decided that I needed to
dedicate some of my time andeffort to defending the
electoral college system.
Speaker 1 (24:50):
Yeah, wonderful, and I appreciate the reference to
Professor Walter Burns, the lateProfessor Walter Burns.
He was on our faculty for theprogram we started in Prague in
1993 for the first four or fiveyears and what a brilliant man
and a great defender of theElectoral College and so
knowledgeable about theFederalist Papers.
And I know you came to Pragueas well, I think, and lectured
(25:11):
back then.
I wish you were still heretoday.
Came to Prague as well, I think, and lectured back then.
I wish you were still heretoday.
Now are you finding lots ofopportunities to go out and talk
about it and finding areceptiveness?
Speaker 2 (25:23):
from the audiences you are with.
Well, I ask people do youbelieve in free speech?
And they say yes, I said good,because I have a free speech for
you and I've spoken at about140 places the last two years in
22 states universities, highschools, rotary clubs, civic
groups, political groups,Republican clubs, for example.
The challenge I have is I'm notfamous.
(25:44):
Ok, famous people are former USsenators.
People want to speak because ofthem.
So when people are invited tomy speeches, they come for the
topic, not for me.
That's really.
People are invited to myspeeches, they come for the
topic, not for me.
That's really.
And the way I get referrals ispeople in my audience will then
tell their friends or tell othergroups they belong to, and I
meet people like you and othersthat I offer speeches to, so
(26:06):
they can send me a note onLinkedIn or wherever they want
and we can arrange a speech.
Speaker 1 (26:12):
Yeah, or get in touch with us at TFAS and I'll put
them in touch with you, andhopefully this conversation
today will generate some moreinterest in speaking engagements
.
Tell me a little more, too,about you've been very involved
with the James Wilson Institute,an organization that's
dedicated to teaching law basedon James Wilson and the founding
fathers, and I think Wilson hada key role in the decision to
(26:35):
have an electoral college, if myhistory serves me right.
But what does the Institute doto keep his legacy alive?
Speaker 2 (26:43):
So James Wilson Institute was started by
Professor Hadley Arcus, teacherof politics, political
philosophy.
As he looked upon the landscapeof our jurisprudence judges,
lawyers, appellate courts,decisions, etc.
He saw that our law schools inAmerica these days seem to only
teach two views of our law.
(27:05):
And of course our law is veryimportant to us in America.
We're a nation of laws and whatwe found is there was
originalism being taught, ortextualism things.
Just read the words of theconstitution, read the words of
laws, what we call originalism.
The other thing being taughtwas progressive idea.
(27:27):
Carl Llewellyn and otherswritten about this, called the
living constitution, which isthe constitution is 238 years
old.
A bunch of slaveholders wroteit.
There's nothing to be learned.
And then you know, today we'revery different, we're better,
and let's make up law, if youwill, rather than follow the law
.
But there's a third aspect tolaw and that is that we had our
(27:51):
rights before we had ourConstitution and the people that
wrote our Constitution alreadyhad in view what law was and
what legal obligations wereabout.
We call that natural law.
Locke wrote about it andJefferson wrote about it, which
is we're endowed by our Creatorwith our rights, the reason we
(28:12):
have on our currency in God wetrust.
The rest of the sentence is andnot the king.
In God we trust, and not theking.
We have to understand that thegovernment doesn't give us our
rights.
When people say that America isexceptional, remember when Mr
Obama was asked well, what doyou think about American
(28:32):
exceptionalism?
And Mr Obama said well, gee, Ithink every country thinks
they're exceptional.
This really missed,respectfully everything, because
I've been to 68 countries.
I have never been to a countrywhose people and government
believe that they're endowed bytheir creator with the rights
Everybody else says.
They're endowed by theirparliament, their king, their
(28:55):
tyrant if you're in China, mr Xi, or whoever it is.
So what we try to do is offerseminars for judges and lawyers
and law students and judicialclerks, seminars on natural law,
of how to think about judicialdecisions and the logic and
arguing of them from a naturallaw perspective.
Speaker 1 (29:18):
A few months ago, my guest on the Liberty and
Leadership podcast was RandyBarnett, who you probably know
very well.
But Randy has said in hislectures to our law students
something that stuck with me,which is that our Constitution
is the document that governsthose who govern us.
It doesn't govern us, thecitizens, it governs those who
(29:40):
govern us.
In fact, he adds, the onlypeople that take an oath to
uphold the Constitution areofficers of the government.
People, when they join themilitary, take that oath.
Senators, congressmen, supremeCourt justices, the president.
They take an oath to uphold theConstitution and it governs
them.
And I think that's the pointyou know you were making so well
(30:01):
in our conversation about thefact that our freedom comes from
God, and it's the checks andbalances, the triangles of the
Constitution that try to preventthat encroachment from
government that you see in everyvirtually all countries of the
world, including our own.
Speaker 2 (30:17):
The anti-federalists, which included George Mason
from Virginia and others,patrick Henry.
Their complaint in the main wastwo things.
One, they didn't want to have aking.
They were worried aboutpresident becoming a king.
But they also said there's noBill of Rights to which Hamilton
writes in Federalist 84, in allcapital letters, the only time
(30:39):
he ever did that.
The entire Constitution is aBill of Rights.
He was saying exactly what youjust said.
The Constitution was meant torestrict, restrict the power of
government, to keep people free.
That's what we try to do inJames Wilson is to talk about
exactly this natural law and howit informs the writers of the
(31:02):
Constitution.
Speaker 1 (31:03):
Well, the last thing I'll ask if you have thoughts on
it, michael, would be.
You know, it seems like one ofthe bigger problems we have,
especially with the structure ofour system, and particularly in
recent years, is that we're, ina sense, seems to be creating
an imperial presidency thatCongress all too often defers to
the president.
(31:24):
As long as it's someone intheir party who's in the White
House, they'll let the presidentdo whatever he wants, and then
it flips and no Congress seemsto want to take back the power
it has under our Constitution.
Speaker 2 (31:37):
Yeah, article 1 is the Congress right, and yet so
much of what they've allowed tohave happen allowed to have
happen is the administrativeagencies make the tough
decisions and they ran forre-election.
And it's unfortunately turnedthe Congress into a bit of a
debating society rather than alawmaking society.
(31:58):
And good news is we had therecent Supreme Court decision on
Chevron deference if some ofyour listeners know what I'm
talking about wherein there'smuch less leeway for
administrative agencies like EPAbut others to make laws, and
even laws that are punishable byimprisonment and fines.
(32:19):
My gosh, nobody should beconvicted of something that the
Congress didn't pass as a law.
So we have to have the firstArticle 1 body, the Congress,
take back their powers andthere's things they ought to do
about it.
They probably ought to have aspecial committee of the
Congress, maybe a jointcommittee.
(32:39):
They have a joint committee onthe budget and taxation, a joint
committee on regulatoryoversight, which says every new
regulation by any agency comesto our committee and if we don't
vote it out, it isn't aregulation and let's just bring
that back to the Congress insome way.
Speaker 1 (33:01):
Well, thank you so much for joining me today.
I think the work you're doingon the Electoral College and
even broader than that, michaelis so vital.
There really weren't manyvoices educating people about
the importance that theElectoral College serves in our
system and how it not onlyprotects us from, you know,
tyranny, but it creates anelection system that seems to
(33:24):
work so much better and come upwith a winner after an election,
in most cases very quickly, andadjudicate that whole process.
So I applaud you for the workyou're doing.
Speaker 2 (33:35):
Thank you very much.
Appreciate all you do at Fundfor American Studies.
I'm a supporter of Funds forAmerican Studies financially and
I recommend that to all of myfriends.
Speaker 1 (33:44):
Thank you, michael.
It's a pleasure.
Thank you for listening to theLiberty and Leadership podcast.
If you have a comment orquestion, please drop us an
email at podcast at tfasorg, andbe sure to subscribe to the
show on your favorite podcastapp and leave a five-star review
.
Liberty and Leadership isproduced at Podville Media.
(34:08):
I'm your host, roger Ream, anduntil next time show courage in
things, large and small.
Welcome to the Liberty and Leadership Podcast,
a conversation with TFAS alumni,faculty and friends who are
making an impact.
Today I'm your host, roger Ream.
Today we welcome Michael CMaybach, the founder and
director of the Center for theElectoral College.
He is also the currentDistinguished Fellow at Save Our
(00:24):
States, an organizationdedicated to defending the
Electoral College.
Michael has held severalpositions in civic engagement
and global business diplomacy,including a decade-long role as
the president of the EuropeanAmerican Business Council.
He also serves on the board formultiple nonprofit
organizations, including theWitherspoon Institute Institute
(00:48):
of World Politics and the JamesWilson Institute.
Prior to this, michael spent 18years at Intel, where he
established their governmentaffairs department and became
their first vice president ofglobal governmental affairs.
Michael is a supporter of TFASand speaks frequently at our
student programs.
(01:08):
Michael Maybach, welcome to theshow.
Thank you, roger.
Delighted to be here.
We scheduled this conversation,I think, in October, partly
because I feared the worst withthe upcoming November
presidential election and thatbeing a disputed outcome that
would be dragging on intoDecember, even January, before
we know who won.
Well, that didn't come to pass,but as we record this podcast,
(01:32):
it appears the victor of theElectoral College vote will also
be the one who won the popularvote.
But even today, some two weeksafter the election, there are
states like California that arestill counting the vote.
I assume if it were not for theElectoral College, the outcome
of the election two weeks agomight still be in doubt.
Is that correct?
Speaker 2 (01:54):
Well, the states that are counting their votes have
already called the winner forthe presidential.
It's the congressional andlocal races that are closer that
are being counted, except inPennsylvania, where they're
recounting only the US Senate.
So there's no doubt that any ofthese recounts would affect the
presidency at all.
But it really does speakvolumes about the contrast
(02:17):
between, let's say, florida, whohas their results that night
election night because they'vehad so many reforms since the
debacle of 2000 presidentialelection, and those states that
have chosen to, one might say,game their elections with so
many artifacts drop boxes,ballot harvesting, voting
(02:37):
without ID.
We have at least 17 statesvoting without IDs, but the
presidential was decided prettymuch within 24 hours.
Speaker 1 (02:46):
And that's partly at least, thanks to the Electoral
College.
Speaker 2 (02:49):
It is when I give my talks around the country, roger,
I actually end.
I say to my audiences I want toend with a positive note, the
sinking of the Titanic.
And then I show a picture ofthe Titanic in the four stages
of its sinking.
It took two and a half hours tosink and I asked the audiences
remember in the movie when theyhit the ice.
(03:11):
And then the captain has hissenior staff around the table
life.
He lays out the design of theship and you can see the
compartments.
And he said and of course Ishow this in my talk on the
(03:32):
screen to save money, we did notclose each and every
compartment, we left them openat the top because the hull was
so thick we never thought it'dbe pierced.
And so, gentlemen, in two and ahalf hours this ship will sink
because the water will spillinto one and another and another
and cause it to break apart,which is exactly what happened
in two and a half hours.
Well, in 2000, when we had theFlorida recount, we had 49
(03:53):
states stand back and watch therecount of Florida, because all
50 compartments were sealed.
And one of the great thingsabout the Electoral College, we
have actually 50 Democraticelections and then we aggregate
those, we don't have a nationalpopular vote.
So these recounts really don'timpact on the presidential
decision, no matter how manymillions they could find in
(04:15):
California, I guess.
Speaker 1 (04:17):
Yeah, that's a very good analogy.
Why don't we start with youcommenting on, kind of
explaining to us what theorigins of the Electoral College
were?
Because I know it was a resultof compromise, like much of what
took place during theConstitutional Convention, and
there were other thingsconsidered even beside the
current Electoral College and anational popular vote.
(04:38):
So if you would talk some aboutthat, Michael, that might set a
good foundation for ourconversation.
Speaker 2 (04:44):
When I give my talks I begin with Socrates taking the
hemlock and his student, plato,witnessed that trial and of
course he wrote a book calledthe Apology, which is the story
of the trial and death ofSocrates.
And this was a jury of over 300citizens who voted by majority
vote to kill the old man forasking questions of the youth.
(05:05):
Plato writes in the Republic,his most important book, in
chapter 8, democracies alwaysbecome tyrannies.
And Aristotle, his student, hisbest student, deals with that
and struggles with that, whydemocracies become tyrannies.
And in his book, the Politics,he talks about the mixed regime
(05:27):
and the Romans picked this up,the checks and balances.
And in the Roman Republic itwas Caesar, the Roman Senate and
the assemblies they called them, and they had sort of a rough
set of checks and balances.
Polybius talks about this inhis book, book six, as it turns
out, and Montesquieu in Spiritof the Laws.
(05:51):
My point is that the foundersstudied history and they knew
that to be free you had toconstantly check human nature,
checks and balances, what wewould consider triangles of
liberty, which is the checks andbalances.
Now, the founders were alsochildren of the age of science.
Newton was the earliergeneration and he had the law of
(06:14):
triangles, the second law oftriangles, and if you look at a
bridge, it's a truss bridge.
It has a triangle as well.
It's the strongest geometricfigure there is.
So the founders had in theirmind if we want to be free, we
have to write a constitution,just like the Ten Commandments
were written.
They took their cue from thewriting of the Ten Commandments.
We have a written constitutionthat had built in sort of
(06:36):
scientific checks and balances.
So they had in mind we want aparliament or a Congress, like
the British had, and we have tohave courts, because there were
trade wars between the statesand no courts to adjudicate
things.
So the courts, originallyfederal courts, were there to
settle disputes between thestates.
But do we have the Congresselect the president or do we
(06:58):
have an independent executive?
And Washington never saidanything in the floor of the
Constitutional Convention, butin the meals, because they met
for 116 days on and off inPhiladelphia that summer, he
would say to them have you everbeen on a ship in a storm
without a captain?
Because for seven years I ledthe revolution against the
(07:23):
British and I had 13 captainsunder the Articles I didn't have
a commander-in-chief and thatwas a major problem.
In a major crisis situation,you need to have a captain, we
need to have an independentexecutive, but also to serve
with a veto, to check andbalance and to appoint the court
with the consent.
So, as we were very familiartoday, but this was whole cloth
they were designing this thing.
(07:44):
So we have the triangles of ourfederalism the executive, the
legislative and the judicial.
To keep people free.
The Bill of Rights doesn't keepus free, it's the checks and
balances that do so.
They asked themselves how are wegoing to elect that independent
president?
Is it a vote of all the states?
Well then, it would always be aBostonian, somebody from New
(08:04):
York or Philadelphia or maybeVirginia.
That was the population centers.
Most states didn't have a lotof people.
So you had four highlypopulated states and nine small
ones Not going to have a popularvote.
If we have the Congress electthe president, like the prime
minister is elected in GreatBritain, they have a king and we
don't, and therefore they haveanother executive, but we don't
(08:25):
and we also don't want thepresident to be a toady or a
servant of the legislature,because then we'll have
legislative tyranny.
They feared tyranny from allpoints of the triangle.
Let's have an independentpresident?
Ah, let's have him elected bystates, and therefore we have
13,.
By states, and therefore wehave 13,.
(08:49):
Now, today, 50 popularelections and we aggregate those
into a presidential election.
And so it's ingenious.
It really makes sense when youthink of what they were trying
to do, but it's not easy forcitizens to understand, because
the electors go away.
They get elected by theirparties.
They go to the state capitoland they go away.
You mentioned the concern theirparties.
They go to the state capitoland they go away.
Speaker 1 (09:06):
You mentioned the concern about rural versus urban
, that you have these urbancenters, you know, and today
it's still kind of the EastCoast.
The West Coast and Chicago Iguess that have all the
population are a good part of it.
What about the issue of slavery?
Was that part of the discussionas well, where you had at the
time you had slave states andstates that had abolished
(09:26):
slavery or were free states?
Speaker 2 (09:28):
In my talk that I give, I actually, early on, show
pictures of rulers around theworld.
There's no democraticallyelected.
We had George III, louis XVI,philip in Spain, catherine the
Great, the emperors of China andJapan, etc.
I also show pictures of slavemarkets around the world because
(09:49):
I have to remind my audiencesthat slavery was in every
country in the world, either inthe slave trade or having slaves
themselves.
This goes back to the OldTestament, to earliest times, to
Thucydides in the histories,and so by Herodotus, and so we
have to understand that theyinherited slavery.
They didn't want it.
Matter of fact, when Jeffersonwrote the Declaration, one of
(10:11):
the complaints he wrote aboutthe English, which was cut off
in the final version of theDeclaration of Independence, was
that the British allowedslavery to be brought to North
America.
So in 1787, they not only werewriting the Constitution, but
they passed the NorthwestOrdinance which outlawed slavery
in the new territories, and sothey were thinking about we
(10:32):
don't want this thing to spread.
Also, every state was a slavestate.
Every state in 1787 had slaves.
New York had more than Georgiaat the time and therefore
slavery was not just a Southernthing.
Slavery is not mentioned in theConstitution, other than slave
trade was outlawed in 20 yearsand when Jefferson was president
(10:55):
he actually signed the law fromCongress to outlaw the slave
trade.
So they were trying to stop itfrom spreading outlawing the
slave trade a number of yearsand the only delegates early on
that voted against the ElectoralCollege when it came up were
Southern delegates.
The Constitution is not aboutslavery.
They maneuvered around slaveryas a difficulty.
(11:18):
They wanted hopefully, theIndustrial Revolution to
overtake.
Speaker 1 (11:22):
I imagine you're often asked about the fact that
you know, particularly in thelast 25 years.
We've had two elections now, Ithink, where the candidate that
won the most votes did not winthe electoral college, and so
that leads some to say it'santi-democratic which it
certainly is in terms of beinganti-majoritarian or
(11:42):
winner-take-all but how do yourespond to those criticisms that
the candidate most Americanswant to see as president doesn't
become the president?
Speaker 2 (11:51):
This is the central argument of those that want a
national popular vote, which isgee, we're a democracy and of
course we're not.
We're a republic.
On three occasions in the 19thcentury this happened 1824, 1876
, 1888.
And we can talk about those ifyou want, but those, for
different reasons, had differentbackgrounds to them.
(12:11):
1824, it was Andrew Jackson hadthe most votes, but he didn't
win the majority of votesbecause there were four people
running and he didn't win theElectoral College.
It was thrown into the House ofRepresentatives, where each
state has one vote, and that'show we settled that.
In 1876, there were federaltroops in three southern states,
part of Reconstruction, and noone knows who won the election.
(12:33):
This is Hayes-Tilsen thatelection, because those troops
were dealing with riots, becausewhites in the South did not
want blacks to vote in theirprecincts, and a great deal of
contested precinct resultsbecause of this.
So finally, the US Congress hada commission to appoint a
president, because they didn'tknow who won the electoral vote
(12:56):
or even the popular vote, and sothe commission chose.
It included a Supreme Courtjustice, chose Hayes to be the
Republican president, but he hada promise the Democrats.
The first thing he would do ascommander in chief is remove
troops from those three southernstates, which he did in.
That ended Reconstruction andthat set the stage,
unfortunately, for Jim Crow.
(13:17):
Because of what happened thereIn 1888, it was 100,000, 200,000
vote difference Very close,very close election.
It didn't happen at all in the20th century.
We had every president also hadthe popular vote Jack Kennedy
and Nixon.
It was very close and,depending on what really
happened in Chicago, we'll neverprobably know that, but in the
(13:39):
21st century, the 2000 election,bush had about 250,000 fewer
votes, less than 1% of the vote.
So it was almost a tie in termsof the millions of people that
voted and that was decided bythe Electoral College.
I would say parentheticallythat Bush won 30 states and Gore
won 20.
(14:00):
So that tells you somethingabout a nation of states.
Then it happened again in 2016.
This is Hillary Clinton versusTrump and in that case she won
two and a half million morevotes than Trump did.
And this really came fromCalifornia.
If you remove all the votesDemocrat and Republican from
California, trump would have wonthe national popular vote, but
(14:22):
California is such a one partystate that that really brings on
many millions of extra votes, Iguess you would say for one
party and that's the way it is.
That said, trump won 30 statesand Hillary Clinton won 20
states.
So if you visit more states andyou pay attention to more
states, you do get those kind ofresults.
(14:43):
This time we had a differentresult, where Trump won both the
popular vote and the ElectoralCollege vote.
No one expected him to win thepopular vote, but he did, and
that showed how deeply peoplewanted change show how deeply
people want to change.
Speaker 1 (14:59):
Would it be fair to speculate that, absent the
electoral college, candidateswould spend a lot more of their
time in just the heavilypopulated areas and unlikely to
visit some of these states thatnow they do visit?
Speaker 2 (15:09):
Absolutely 50% of the American people live in nine
states.
To put it another way, losAngeles County has more people
than 41 states.
New York City has more peoplethan 39 states.
The island of Long Island.
There is two counties.
One is called Nassau County.
Nassau County, which is half ofLong Island, has more people
(15:31):
than 10 of our states and it'snot part of New York City.
We would have people running forpresident just in the
population centers and thatwould be it.
Now people seem to think thatsupport the national popular
vote, that our two-party systemwould be sustained.
I think this is folly, truefolly.
We would have a dozen parties.
(15:53):
We would have billionaires withtheir own jets running their
own campaigns, totallyuntethered from political
parties that we have right now,flying from population to
population center running theirown PR campaigns, and we would
have many parties.
The average European Union.
There's 27 countries in theEuropean Union.
The average EU country has nineparties.
(16:15):
Nine parties and then they havecoalitions that elect their
head of government.
If America had nine or 12parties, we'd have a new Speaker
of the House every month.
We've only had one Speakerthrown out of office this past
year in our history.
The stability of our two-partysystem.
For a 300 million personrepublic is highly, highly
(16:36):
valuable that we just have twoparties and not 20, and just to
be able to legislate.
There are so many fruits of theelectoral college system, but
one is the two-party system.
Speaker 1 (16:48):
Now Maine and Nebraska do things a little bit
differently.
Could you explain that and giveme your thoughts on that?
Speaker 2 (16:56):
So Maine and Nebraska disaggregate their electors by
congressional districts, andthat's quite constitutional.
The Constitution says thelegislature in each state
decides how the electors arechosen.
All 50 states have popularvotes, but in Maine and Nebraska
they chose to disaggregate.
Why is that?
Maine, historically, had been aone-party state and so had
(17:25):
Nebraska, and so today, forexample, nebraska is a
Republican state largely andMaine a Democrat state.
And yet Trump won one electorfrom Maine, he won the third
congressional district, and MrsHarris won Omaha, which is a
heavily Democratic city.
And the reason these two stateshave done this, it seems, is to
make sure presidentialcandidates pay attention to them
(17:46):
and not take them for granted.
Now, every state could do this.
They could disaggregate alltheir electors by county
congressional district, by statesenate district.
They can even do itproportionally.
You know it's 30% of the vote,you get 30% of our electors.
If, in 2012, all the states haddone what Nebraska and Maine do
(18:07):
, romney would have defeatedObama.
He won many more congressionaldistricts.
And this is the case in almostevery case with the Republicans,
because they win so many of therural counties.
Trump just won 2,500 countiesand Mrs Harris won 500 counties.
The population centers reallyare much highly, more one party
(18:29):
than the others, it turns out.
Speaker 1 (18:31):
So I guess if you disaggregate and give them out
by congressional district,you're tying your electoral
votes to the gerrymandering thattakes place in these
legislatures.
Speaker 2 (18:41):
You know there's nothing perfect, including the
Constitution.
If we would do it that way,then the complaint would be my
gosh.
We'll have to have courts orsome independent commission
choose the lines.
But you know, the congressionaldistricts and legislative
districts are left to statelegislatures, and so if you want
to save democracy, you don'twant to remove the power of
(19:02):
districting, and they're alwaysgoing to be political.
Everything in politics ispolitical by its nature, right?
Speaker 1 (19:08):
Yeah, there is an effort underway by, I guess
mostly driven by forces who areopposed to our electoral college
, to form some sort of nationalcompact that would award a
state's electoral votes based onthe national popular vote.
What do you think about that?
Speaker 2 (19:25):
So there were some people in California unhappy
that Gore was not elected andthey asked a couple of
professors to come up with aplan.
They did, called the NationalPopular Vote Interstate Compact.
It was launched in 2006.
And the idea is, if statelegislators pass this compact,
(19:46):
they reach 270 electors.
In the compact it goes intoeffect the night of a
presidential election.
Talk about organized chaos.
There you would have it.
17 state legislatures have nowpassed the National Popular Vote
Interstate Compact.
They have 209 electors.
They need 61 more to have 270.
(20:07):
All 17 of those states and theDistrict of Columbia are all led
by one party, with the House,the Senate and the governor.
It has never passed without theHouse, the Senate and the
governor.
All being the same partyHappens to be a Democratic party
.
My job is not to be partisan,but this is the fact.
This is a product of theDemocratic party is to try to go
(20:28):
around the electoral collegesystem.
Now it's unconstitutional tohave such a compact.
We have the Compact Clause ofthe Constitution because the
small states in Philadelphia in1787 wanted to make sure the
large states didn't coalesceagainst them and therefore you
have to go to the Congress toget such a compact approved, but
they will never bring this tothe Congress because the US
(20:49):
Senate, you know, two senatorsper state they're not going to
go along with this.
The whole idea of having twosenators per state is to balance
the majority with minorityvoices across the population of
our country.
So the National Popular VoteCompact sits there with 209
electors.
They're running out of all bluestates.
(21:09):
Michigan was ready to pass it.
It seemed right after theelection if Mr Trump had lost
the popular vote, but theykilled their legislation NPV
legislation because he won thepopular vote, including he won
in Michigan, and that was amessage to the legislature we're
voting for Mr Trump, don't messwith this result.
Speaker 1 (21:32):
Are there any changes or tinkering that you would do
in terms of the way we electpresidents or the electoral
college, or is it pretty sound?
Do you think the way it is?
Speaker 2 (21:43):
Whenever somebody complains to me, they usually
have two complaints.
One is the national popularvote they would like to have,
but also the winner-take-allsystem.
We have 48 states who usewinner-take-all and what they
say is gee, all thoseRepublicans in California, their
vote doesn't count becauseCalifornia has many more
Democrats, and in Texas, allthose Democrats, their votes
(22:05):
don't count because theRepublicans in Texas.
And so what I say to them is ifyou really want to parse that
out, go to Sacramento or toAustin and ask the legislature
and the governor to reallocateyour electors by congressional
districts, like they do inNebraska and Maine, and then
(22:26):
you'll have all kinds ofdisaggregation of electors.
You know, in 2016, when Mr Trumplost to Mrs Clinton in Illinois
I'm a native of Illinois, wehave 102 counties in Illinois
Mrs Clinton won 12 counties.
Trump won 90 counties inIllinois and she got all of
(22:47):
their electors 100% because shewon the Chicago and the Collier
counties up there in Chicago.
But if we had done the Maineand Nebraska system in Illinois,
trump would have won a handfulof electors from downstate
Illinois and the same withDemocrats in Texas.
So there is a way to solve thatcomplaint and that is to do
(23:09):
what Maine and Nebraska do, andit's quite constitutional.
Speaker 1 (23:12):
Michael, what motivated you to get engaged in
this, to found your organizationand to work to preserve this
institution, that electoralcollege?
Speaker 2 (23:21):
Well, my first semester of college I had a
professor named Herbert Storingfrom the University of Chicago
and I took his class becausesomebody recommended I would
take his class and somebody inthe dorm.
I'd never been to collegebefore.
Of course I didn't knowanything about Herbert Storing
or Leo Strauss.
He was a student of Leo Strauss.
But our first paper we had towrite was for or against the
(23:44):
Electoral College.
And all 12 of us told him wewere going to write our paper
against the Electoral Collegeand he set aside the readings in
the library.
In those days there were nointernet.
So the readings were set asideand I sat there for a few days
and I read all these for andagainst arguments for the
Electoral College and I said, ohmy God, I've got to change my
(24:04):
mind.
You know Walter Burns andHamilton, all the rest.
For the first time in my life Iwas 18 years old I read
something that had mefundamentally changed how I
understood the Constitution andour country and the Electoral
College.
So I wrote my paper for theElectoral College, the only one
that did.
Young people don't like theElectoral College because
they're for democracy until theyunderstand that democracy is
(24:28):
problematic.
So since then I've published 14essays, so it's been sort of a
hobby of mine throughout my40-year business career.
And then when I got out ofbusiness I found out about the
National Popular Vote Compactand I decided that I needed to
dedicate some of my time andeffort to defending the
electoral college system.
Speaker 1 (24:50):
Yeah, wonderful, and I appreciate the reference to
Professor Walter Burns, the lateProfessor Walter Burns.
He was on our faculty for theprogram we started in Prague in
1993 for the first four or fiveyears and what a brilliant man
and a great defender of theElectoral College and so
knowledgeable about theFederalist Papers.
And I know you came to Pragueas well, I think, and lectured
(25:11):
back then.
I wish you were still heretoday.
Came to Prague as well, I think, and lectured back then.
I wish you were still heretoday.
Now are you finding lots ofopportunities to go out and talk
about it and finding areceptiveness?
Speaker 2 (25:23):
from the audiences you are with.
Well, I ask people do youbelieve in free speech?
And they say yes, I said good,because I have a free speech for
you and I've spoken at about140 places the last two years in
22 states universities, highschools, rotary clubs, civic
groups, political groups,Republican clubs, for example.
The challenge I have is I'm notfamous.
(25:44):
Ok, famous people are former USsenators.
People want to speak because ofthem.
So when people are invited tomy speeches, they come for the
topic, not for me.
That's really.
People are invited to myspeeches, they come for the
topic, not for me.
That's really.
And the way I get referrals ispeople in my audience will then
tell their friends or tell othergroups they belong to, and I
meet people like you and othersthat I offer speeches to, so
(26:06):
they can send me a note onLinkedIn or wherever they want
and we can arrange a speech.
Speaker 1 (26:12):
Yeah, or get in touch with us at TFAS and I'll put
them in touch with you, andhopefully this conversation
today will generate some moreinterest in speaking engagements
.
Tell me a little more, too,about you've been very involved
with the James Wilson Institute,an organization that's
dedicated to teaching law basedon James Wilson and the founding
fathers, and I think Wilson hada key role in the decision to
(26:35):
have an electoral college, if myhistory serves me right.
But what does the Institute doto keep his legacy alive?
Speaker 2 (26:43):
So James Wilson Institute was started by
Professor Hadley Arcus, teacherof politics, political
philosophy.
As he looked upon the landscapeof our jurisprudence judges,
lawyers, appellate courts,decisions, etc.
He saw that our law schools inAmerica these days seem to only
teach two views of our law.
(27:05):
And of course our law is veryimportant to us in America.
We're a nation of laws and whatwe found is there was
originalism being taught, ortextualism things.
Just read the words of theconstitution, read the words of
laws, what we call originalism.
The other thing being taughtwas progressive idea.
(27:27):
Carl Llewellyn and otherswritten about this, called the
living constitution, which isthe constitution is 238 years
old.
A bunch of slaveholders wroteit.
There's nothing to be learned.
And then you know, today we'revery different, we're better,
and let's make up law, if youwill, rather than follow the law
.
But there's a third aspect tolaw and that is that we had our
(27:51):
rights before we had ourConstitution and the people that
wrote our Constitution alreadyhad in view what law was and
what legal obligations wereabout.
We call that natural law.
Locke wrote about it andJefferson wrote about it, which
is we're endowed by our Creatorwith our rights, the reason we
(28:12):
have on our currency in God wetrust.
The rest of the sentence is andnot the king.
In God we trust, and not theking.
We have to understand that thegovernment doesn't give us our
rights.
When people say that America isexceptional, remember when Mr
Obama was asked well, what doyou think about American
(28:32):
exceptionalism?
And Mr Obama said well, gee, Ithink every country thinks
they're exceptional.
This really missed,respectfully everything, because
I've been to 68 countries.
I have never been to a countrywhose people and government
believe that they're endowed bytheir creator with the rights
Everybody else says.
They're endowed by theirparliament, their king, their
(28:55):
tyrant if you're in China, mr Xi, or whoever it is.
So what we try to do is offerseminars for judges and lawyers
and law students and judicialclerks, seminars on natural law,
of how to think about judicialdecisions and the logic and
arguing of them from a naturallaw perspective.
Speaker 1 (29:18):
A few months ago, my guest on the Liberty and
Leadership podcast was RandyBarnett, who you probably know
very well.
But Randy has said in hislectures to our law students
something that stuck with me,which is that our Constitution
is the document that governsthose who govern us.
It doesn't govern us, thecitizens, it governs those who
(29:40):
govern us.
In fact, he adds, the onlypeople that take an oath to
uphold the Constitution areofficers of the government.
People, when they join themilitary, take that oath.
Senators, congressmen, supremeCourt justices, the president.
They take an oath to uphold theConstitution and it governs
them.
And I think that's the pointyou know you were making so well
(30:01):
in our conversation about thefact that our freedom comes from
God, and it's the checks andbalances, the triangles of the
Constitution that try to preventthat encroachment from
government that you see in everyvirtually all countries of the
world, including our own.
Speaker 2 (30:17):
The anti-federalists, which included George Mason
from Virginia and others,patrick Henry.
Their complaint in the main wastwo things.
One, they didn't want to have aking.
They were worried aboutpresident becoming a king.
But they also said there's noBill of Rights to which Hamilton
writes in Federalist 84, in allcapital letters, the only time
(30:39):
he ever did that.
The entire Constitution is aBill of Rights.
He was saying exactly what youjust said.
The Constitution was meant torestrict, restrict the power of
government, to keep people free.
That's what we try to do inJames Wilson is to talk about
exactly this natural law and howit informs the writers of the
(31:02):
Constitution.
Speaker 1 (31:03):
Well, the last thing I'll ask if you have thoughts on
it, michael, would be.
You know, it seems like one ofthe bigger problems we have,
especially with the structure ofour system, and particularly in
recent years, is that we're, ina sense, seems to be creating
an imperial presidency thatCongress all too often defers to
the president.
(31:24):
As long as it's someone intheir party who's in the White
House, they'll let the presidentdo whatever he wants, and then
it flips and no Congress seemsto want to take back the power
it has under our Constitution.
Speaker 2 (31:37):
Yeah, article 1 is the Congress right, and yet so
much of what they've allowed tohave happen allowed to have
happen is the administrativeagencies make the tough
decisions and they ran forre-election.
And it's unfortunately turnedthe Congress into a bit of a
debating society rather than alawmaking society.
(31:58):
And good news is we had therecent Supreme Court decision on
Chevron deference if some ofyour listeners know what I'm
talking about wherein there'smuch less leeway for
administrative agencies like EPAbut others to make laws, and
even laws that are punishable byimprisonment and fines.
(32:19):
My gosh, nobody should beconvicted of something that the
Congress didn't pass as a law.
So we have to have the firstArticle 1 body, the Congress,
take back their powers andthere's things they ought to do
about it.
They probably ought to have aspecial committee of the
Congress, maybe a jointcommittee.
(32:39):
They have a joint committee onthe budget and taxation, a joint
committee on regulatoryoversight, which says every new
regulation by any agency comesto our committee and if we don't
vote it out, it isn't aregulation and let's just bring
that back to the Congress insome way.
Speaker 1 (33:01):
Well, thank you so much for joining me today.
I think the work you're doingon the Electoral College and
even broader than that, michaelis so vital.
There really weren't manyvoices educating people about
the importance that theElectoral College serves in our
system and how it not onlyprotects us from, you know,
tyranny, but it creates anelection system that seems to
(33:24):
work so much better and come upwith a winner after an election,
in most cases very quickly, andadjudicate that whole process.
So I applaud you for the workyou're doing.
Speaker 2 (33:35):
Thank you very much.
Appreciate all you do at Fundfor American Studies.
I'm a supporter of Funds forAmerican Studies financially and
I recommend that to all of myfriends.
Speaker 1 (33:44):
Thank you, michael.
It's a pleasure.
Thank you for listening to theLiberty and Leadership podcast.
If you have a comment orquestion, please drop us an
email at podcast at tfasorg, andbe sure to subscribe to the
show on your favorite podcastapp and leave a five-star review
.
Liberty and Leadership isproduced at Podville Media.
(34:08):
I'm your host, roger Ream, anduntil next time show courage in
things, large and small.
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