Thinking of ending the electoral college

Last week the United States Supreme Court furnished yet another reason for an amendment to the Constitution ending the electoral college. The electoral college is a mechanism for minority rule. If poll after poll is to be credited, the country as a whole did not want the court to end the constitutional right to an abortion. Yet, a president who did not win the popular vote was able to appoint three Supreme Court justices whose now undisguised objective is to roll back modern progress based on their religious beliefs. The Supreme Court is now dominated by justices who believe that secularization of government is wrong and that the moral principles of the Christian religion should guide or even control the conduct of Americans. Accordingly, the free exercise clause trumps, so to speak, the establishment clause. Abortion is a sin, therefore it deserves no protection in the Constitution. Indeed, the Constitution serves as a bulwark against progress because it was written in the 18th century when the natural rights of citizens (which did not include women, slaves or any man who did not own property) were much more narrowly circumscribed than today.

Lest there be any doubt that the court keenly desires to move forward into the past, it's worth noting that the court in the majority opinion in Dobbs v. Jackson Women's Health Organization made little effort to sugar coat or otherwise downplay (i.e., the usual tactic of a retrograde element) how terrible the olden days really were. Much has been written about how the "historical analysis" offered as a supposed corrective to Roe v. Wade including multiple citations to the works of Lord Hale, famous for expressing the view that the charge of rape is often an accusation of a vindictive woman. (Dobbs, at pp. 17-26) Even more telling may be the majority's reference to torture of an abortionist to illustrate that in the 18th century abortion was a crime. "In 1732, for example, Eleanor Beare was convicted of 'destroying the Foetus in the Womb' of another woman and 'therefore causing her to miscarry.' For that crime and another 'misdemeanor,' Beare was sentenced to two days in the pillory and three year's imprisonment." (Dobbs, at p. 18, fn. omitted.) In a blazing bit of irony, the source of this information is the "Gentleman's Magazine." (Id. at p. 18, fn. 26.) The pillory was "a device formerly used for publicly punishing offenders consisting of a wooden frame with holes in which the head and hands can be locked." (Merriam-Webster's Collegiate Dictionary (11th ed. 2003) 940.) The pillory held the person in an extremely uncomfortable position but its central purpose was public humiliation. Pillories were located in public places like markets or at a crossroads. People would gather to jeer and mock the offender and might pelt them with rotten food, excrement and sometimes bricks and stones, maiming or killing them. (Wikipedia, https://en.wikipedia.org/wiki/Pillory.) Thus, the majority's justification for excluding abortion from constitutional protection included reference to a barbaric punishment. Even if the majority was simply trying to prove the point that abortion was a crime when the Constitution was adopted, this illustration does nothing but confirm the impression that the court is not repulsed by the practices of this era, ignoring 250 years of progress, let alone the prohibition of cruel and unusual punishment in the Eighth Amendment. (See Weems v. U.S. (1910) 217 U.S. 349, 377-378 [the "odious" punishment of the pillory "has been pronounced to be within the prohibitory clause"].)

How did the justices in the majority, capable of citing a case in support of their argument involving a barbarous punishment, achieve a majority in the Supreme Court? The answer is the electoral college. Without the election of a president who lost the popular vote, there would have been no chance to construct a majority made up of justices who prioritize the alignment of law with religious principles. Of the three justices who completed the takeover - Justices Gorsuch, Kavanaugh and Barrett - their supporters like to highlight their qualifications and accomplishments in the legal field. But the tie that binds them together is the intensity of their religious devotion. Even Justice Gorsuch, who was raised Catholic but now attends an Episcopal church - a mainline sect that ordains women and prides itself on being a beacon of rational religion - reliably promotes the interests of the Christian religion. Justice Gorsuch is the author of Kennedy v. Bremerton School District, wherein he seems to scrupulously avoid discussion of the content and nature of the prayer offered by coach Joseph Kennedy, a Christian, on the 50 yard line of a high school football field. When I was growing up in the Midwest, it was not uncommon for Little League and school teams to say the Lord's Prayer before games. 25 years later in San Francisco, I saw the opposing team recite the Lord's Prayer before a game in a softball league made up of teams sponsored by local businesses. I have no doubt that coach Kennedy was seeking to revive the tradition.

Critiquing the Ninth Circuit's reasoning in the case, Justice Gorsuch stated that the appellate court's understanding of applicable principles was overly broad and would mean that "a school could fire a Muslim teacher for wearing a headscarf in the classroom or a prohibit a Christian aide from praying quietly over her lunch in the cafeteria." (Kennedy, at p. 18.) He later offers a modified version of that comment, this time featuring a yarmulke. (Id. at p. 28.) But this nod to equal treatment of differing religions under the Constitution is not persuasive. How would Justice Gorsuch regard a coach and players on a soccer team shouting "Allahu Akbar" on the field after a win?

Christian prayer offered at football game sends a particularly powerful message given the combat-like nature of football. Group prayer cloaks players in the mantle of Christian warriors. This was what took place on the field in Bremerton. Wasn't "clear eyes, full heart, can't lose" good enough?

Justice Gorsuch concludes the majority opinion in Kennedy by declaring that "[r]espect for religious expressions is indispensable to life in a free and diverse Republic - whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head." (Kennedy, at p. 31.) Clearly, Justice Gorsuch and the rest of majority intend to ensure that Christian religious expression commands respect and gets it.

Which brings us back to the question that, if the electoral college has saddled the Republic with justices with a Christian agenda to reverse the decline of religion in modern life, is it at all possible for an amendment to dispense with the electoral college to succeed? The answer is "not yet." True, poll after poll also shows the majority of Americans want to abolish the electoral college. But it will take a groundswell of revulsion at the harm inflicted by this awkward procedure greater than currently seen to get past the formidable obstacles to amendment of the Constitution. Also, when threatened, the minority will mount a very vigorous defense. Expect to hear that Adolf Hitler was elected by a popular vote in a plebiscite (not true). Still, ending the electoral college is a goal worth pursuing now. The Christian right in control of the Supreme Court does not have sufficient power to turn America into a Christian nation. But these justices already have struck a heavy blow and are spoiling for a fight. A movement to end the electoral college might give them pause (or, to be honest, spur them to greater excess).