How the Presidency is Like the Electoral College

Last week I wrote about the Electoral College and how it serves as sort of a mediating body in the selection of the President. It serves to mediate between the will of the people as a governing body, based on majority rules, and the will of the states as governing bodies, based on the principle of federalism. But I got to thinking that the presidency operates as sort of an electoral college for deciding who the real rulers of America are.

Americans rightly make much of whom the next President will be, because the presidency is a powerful office. President Obama has shown just how powerful it can be if a President is willing to use the extra-constitutional powers found in a pen and a phone. But the President’s power to influence Congress and to issue executive orders isn’t the most important power the office possesses.

What we must appreciate is that the President services as a one-person nominating committee to the body that actually rules America. In that sense, the Office of President is a bit like the Electoral College—it is that mediating “body” that sits as a buffer between the people and the Supreme Court that actually rules us.

That the Supreme Court rules America today is not hyperbole. The late Supreme Court Justice Scalia said it this way in the Obergefell same-sex “marriage” decision last summer:

“Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of nine lawyers on the Supreme Court.”

The power of judicial review—the power to judge a state law or congressional enactment as contrary to the U.S. Constitution—has always been powerful. But Justice Scalia’s statement was recognition of the fact that, in Obergefell, the Court not only exercised the power to declare that a state law was unconstitutional, but took upon itself a new power to declare what the new state law must be.

When the Supreme Court can decree what laws a state must affirmatively enact or, if the state fails to “obey” what the Court says it must do, can “enact” those laws anyway for the state, then the Court is ultimately in charge. The powers of the presidency, Congress, and the states are subordinate and subservient to the Court, and the Court, not the Constitution, is supreme.

While I care about a lot of issues—laws relative to gun rights, abortion, religious liberty, social experimentation in the military, immigration, fighting terrorism, etc.—how our elected officials will deal with these issues is only the penultimate issue; as much as I hate to say it, the ultimate issue is who is on the Supreme Court and to what extent will the Justices “allow” these federal and state elected officials to address these issues.

I loathe that last statement; I don’t want to concede its truthfulness, because it is a statement our Founding Fathers would have never made or envisioned Americans making. But until we have some members of Congress willing to reign in the Supreme Court, and we won’t have those until our citizens and state officials demand that our members of Congress do so, that’s where we are.

Choose wisely over the next few days as you vote in the Presidential Primary, because you are electing the person who has the sole power to nominate members to the de facto ruling body in America.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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Do Tennessee Republicans Need Rescuing From Themselves?

I’ve always sensed that Republicans, as a whole, were good at getting manipulated, out-foxed, or hoodwinked by Democrats, and a bill coming up in a state Senate committee for vote next week seems to fit that pattern. If citizens aren’t awake, they may also be taken in to the detriment of us all.

The bill, Senate Bill 1657, would commit Tennessee’s electoral college votes to whichever presidential candidate has the largest percentage of the total presidential vote, nationwide, even if it is not a majority of the vote.

The reason I’ve been given for the bill is that some think a pure popular vote is the only way Republicans are ever going to be able to elect a President in the future. As I see it, there are three problems with this argument. First, the facts are against them. Second, the bill won’t fix our real problem. And third, history shows we create unintended problems when we mess with our Founding Father’s wise procedures.

The Facts

Assuming that we don’t want to adhere to the governing philosophy bequeathed to us by our Founding Fathers who tried to find a means by which the majority could rule while also protecting the majority from the tyranny that results when they are mislead, deceived, or uninformed, then let’s just look at the facts surrounding this bill.

The fact is there has been only one presidential election in over 20 years in which the Republican won the national popular vote. Furthermore, when Bush won in 2000, had this bill been in effect, he would have lost to Gore because Gore had more votes than Bush and our Electoral College votes would have gone to him.

Yet, for reasons I can’t fathom, some seem to think that, going forward, there are going to be a greater number and percentage of Republican voters. Yeah, right. Maybe after the next generation gets “Bern-ed” by a Sanders-type presidency a few times.

There is also data to bear the fact that the bill plays into the hands of Democrats. The Republican National Committee (RNC), which opposes the bill and which you would think might give the Republican sponsors of this bill some pause, did a statistical analysis of the bill. The analysis shows that of the 20 states that stand to “gain power” from a National Popular Vote, sixteen of them voted for Obama in 2012.

Not only was Tennessee not among the twenty, but according to the analysis, Tennessee would actually lose power when it comes to presidential elections. We don’t have much now, so I’m not sure why losing what little we have is a good idea, unless the hope is that the bill will cut down on television campaign commercials every four years.

These kinds of facts may also explain why the only states that have passed this compact are deep blue states and why liberal George Soros is putting so much money behind this effort.

The Problem

But our problem in America isn’t that we’ve not had enough Republican presidents. Our problem isn’t the Constitution or the Electoral College. Our problem is us—too many uninformed, mislead, disinterested, what’s-in-it-for-me-now voters. This bill will not “fix” that problem.

But that’s not all. Our larger problem is Congress. They are the ones who will not stand up to a phone-and-pen President, won’t reign in federal courts, and are spending us into oblivion.

What can a President who adheres to the constitutional separation of powers really do with an inept Congress other than perhaps embarrass them into doing the right thing? Then again what makes us think a little embarrassment is what is needed to reform Congress? If an in-the-toilet approval rating isn’t enough embarrassment to bring reform, then I don’t know that even a brash or bold Republican President is going to fix this problem.

A Bad History of “Reversing” Our Founding Fathers

One of the times we changed the wise election procedures put in our Constitution—changing the way we elect U.S. Senators—we unwittingly started on the journey that has now effectively abolished federalism. Catering to the majority’s wants, not fidelity to the Constitution and particularly the constitutional principle of federalism, is now more important for most U.S. Senators.

And now, not for sound policy reasons, but in the hope that a Republican will have a better chance of getting elected President, we have some who want to circumvent the wise principles and structures in our Constitution that sought to minimize the tyranny of a majority that could be easily manipulated and mislead.

Like the 17th Amendment, this national popular vote bill seems to be a “fix” not fitted to the problem. And pure democracy, once armed and with no structural restraints, will never regulate or restrain itself. Never has; never will.

Presidential candidates already promise too much to too many to get their votes. This will make that problem only worse. Worse yet, they will then claim they have a “mandate” that Congress must enact.

Who will save these Republicans from themselves? And maybe the better question is who will save America from itself?

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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The Real ‘Story’ Regarding Muslim Presidential Candidates

Ben Carson’s comments about electing a Muslim president and the reaction to them from the press, Democrats, and his Republican presidential opponents has been more than interesting. If you want to get the issue straight, here’s the “story” from someone who really knows.

To begin with, it must be remembered that there are two issues here and they must not be conflated. The first is whether there is any constitutional reason a Muslim could not serve as President. If there is, the second question—whether a Muslim should be elected—is irrelevant.

The Constitutional Issue

As to the first issue, the real “story” can be learned from the forgotten constitutional scholar of the same name, Justice Story of the United States Supreme Court. Justice Story was a brilliant legal mind, being the youngest person ever nominated to the Supreme Court at the time of his nomination. He served on the Court for thirty years and taught constitutional law at Harvard Law School. In 1833 he published the first comprehensive treatise on the Constitution.1 Thus, his thoughts on the three clauses in the Constitution bearing on religion should be persuasive.

The first clause is the First Amendment’s Establishment Clause, which prohibits Congress from establishing a national church. The concept meant that Congress was prohibited from establishing an “ecclesiastical hierarchy” that would receive the patronage of the federal government.

The second is the Free Exercise Clause, also in the First Amendment. According to Justice Story, it was intended not so much to allow us to do in the public square whatever our religion required us to do, but, as will be seen, it was really intended to complement the Establishment Clause.

The third clause is found in Article VI, which prohibits any religious test for public office. This, too, was intended to complement the Establishment Clause.

In his treatise, Justice Story explained how these three provisions were intended to work (bracketed words added for clarification):

The real object of the First Amendment was not to countenance, much less to advance Mohammedanism, or Judaism, or infidelity [atheism], by prostrating Christianity, but to exclude all rivalry among Christian sects and to prevent any national ecclesiastical establishment which should give to an hierarchy the exclusive patronage of the national government.”

“It was impossible, that there should not arise perpetual strife, and perpetual jealousy on the subject of ecclesiastical ascendancy, if the national government were left free to create a religious establishment. The only security was in extirpating the power [Establishment Clause]. But this alone would have been an imperfect security, if it had not been followed up by a declaration of the right of the free exercise of religion [Free Exercise Clause], and a prohibition (as we have seen) of all religious tests [Article VI].” (emphasis added)

In other words, a religious establishment was to be foiled in the first instance by the Establishment Clause, but like a train with a second and third set of emergency breaks, the Free Exercise Clause and the religious test were added. The religious test was particularly important to prevent a back-door establishment by laws that would require those running for office to hold certain religious doctrines.

Consequently Justice Story concluded:

“Thus, … the Catholic and the Protestant, the Calvinist and the Armenian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship.”

So a Muslim can clearly run for any office, but that’s not the end of the story.

The Political Issue

Of course, the foregoing did not mean that our Founding Fathers thought we should elect someone in disregard of his or her religious beliefs.

It was clear from the preceding statements that Christianity was the favored religion in the nation’s psyche and, collectively speaking, it was our frame of reference for everything politically and socially. And there are too many quotes from our Founding Fathers about the importance of Christianity to the future success of our country to reference.

In other words, our Founding Fathers did not, by our Constitution, prevent us from doing all the things against our collective best interest that we could do. They assumed we would be smart enough not to elect someone whose allegiance to God would require that they oppose and work to undermine the clear import of our Constitution and the foundational principles underlying our social order.

But based on the current state of affairs in the Oval Office, it seems we’re not as smart as they thought we would be.
1Justice Story’s three-volume treatise is entitled Commentaries on the Constitution of the United States; with a preliminary review of the constitutional history of the colonies and state, before the adoption of the constitution (1833).

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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Which Presidential Candidate Will Restore Sagging Confidence?

An Associated Press survey released this week shows that American confidence in the President, Congress, the Supreme Court, and those who report on them—the press—is at all time lows. When confidence lags, one begins to look for something to hope in for the change that is needed. Six years ago that search led to Barack Obama, who promised hope and change “we could believe in.” We got lots of change, but these poll numbers show that hope is still sagging. Are any of the candidates for president in 2016 what we need?

To answer that question, one must diagnose what is needed. Someone well-versed in the mechanics of combustion engines might be great to call on when your car is not running smoothly, but not to do a heart valve transplant when your heart’s not running smoothly. So what is our problem that needs fixing?

Our tendency is to look at various public policies and to believe that if we tweak this policy or add or eliminate another policy that we’ll get things back on track. We then look for a candidate whose policy views best line up with our policy diagnosis.

While I do believe public policies can produce negative individual and societal consequences, diagnosis of our problem must run deeper. How do we determine which policies or perhaps missing policies are producing the negative consequences?

I think the answer to that question ties into the reason we have no confidence in government or the press. I’m reminded of another culture that bore a striking resemblance to ours. A man named Isaiah described it this way:

So justice is far from us, and righteousness does not reach us. We look for light, but all is darkness; for brightness, but we walk in deep shadows. Like the blind we grope along the wall, feeling our way like people without eyes. At midday we stumble as if it were twilight; among the strong, we are like the dead. We all growl like bears; we moan mournfully like doves. We look for justice, but find none; for deliverance, but it is far away (Isaiah 59: 9-11 NIV).

Then in summary fashion he provides the diagnosis for their condition: “Truth has stumbled in the street. Yes, truth is lacking” (Isaiah 59:14).

Truth is what is needed to evaluate anything, including public policies. And like Isaiah’s culture, truth is not in vogue in ours anymore.

Let’s admit it. We don’t trust these governmental institutions because we think they are, on the whole, a “bunch of crooks and liars.” But in our condemnation of them we forget that they are a reflection of us. They are a product of a culture filled with lies and a people that seem to prefer the temporary phantom comfort of lies over the harsh realities of the truth.

So going back to the question about the presidential candidate in which we should put our hope for change, the answer, to me, is none of them. None of them will really say what needs to be said because they fear the PC police and their allies in the press.

For me, our hope for the change we need will not be found on the ballot, but in the pulpits of our churches. However, that will only happen as our pulpits recover their prophetic voice and speak God’s truth about what is going on in our culture, something large numbers are not yet inclined to do. If they do recover their voice, the question is whether those in the pews will listen.

Again, God’s prophets of old have described our modern situation. Jeremiah said this of the “pulpits” of his day and the response of those in the “pews:”

An astonishing and horrible thing
Has been committed in the land.
The prophets prophesy falsely,
And the priests rule by their own power;
And My people love to have it so (Jeremiah 5:30-31 NKJV).

And then Jeremiah asks this question, “But what will you do in the end?”

That is a question we Christians need to be prepared to answer if we don’t want to hear the truth anymore.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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Immigration, Abortion, and the Missing Virtue

President Obama takes executive action on immigration, and some Congressional leaders promise to do whatever it takes to stop him. Amendment 1 removes the judicial impediment to abortion regulations, and some pro-life state legislators may want to make up for “lost time” in regulating abortion. As I considered the two situations, a word seldom used anymore kept coming to mind.

That word is prudence. It is known as one of the four cardinal virtues. And it is virtue particularly needed at a time when the vast majority of Americans distrust their government and politicians. Without prudence, that distrust will only grow, and without trust, our government cannot function well.

Prudence Defined

Prudence was defined by Noah Webster in his famous 1828 dictionary as follows:

“Prudence implies caution in deliberating and consulting on the most suitable means to accomplish valuable purposes, and the exercise of sagacity in discerning and selecting them. Prudence differs from wisdom in this, that prudence . . . is exercised more in foreseeing and avoiding evil, than in devising and executing that which is good . . . .”

Or, as Webster summed it up in the last sentence of his definition: “Prudence is principally in reference to actions to be done, and due means, order, season and method of doing or not doing.”


In the case of immigration, prudence is certainly needed. Our immigration “situation” is a mess. There are legal, constitutional, philosophical, theological, and practical issues to be considered. The impact of any policy will be great and far reaching. If a pebble thrown in a lake causes ripples vastly disproportionate to its circumference, then action on immigration is by comparison a boulder thrown into a pond.

That the President thinks he knows what is right and is willing to do it even if it is contrary to his previously expressed understanding of his limited constitutional authority is clear evidence that he lacks prudence.

That some Republicans, in an exercise of bravado and playing to their base, start saying they will do whatever it takes to stop him could lead to counterproductive actions and more government distrust if prudence is not exercised.

In saying that, I don’t mean that nothing should be done on immigration or that unconstitutional exercises of authority should go unchecked. But prudence dictates that there be serious deliberation and consultation in order to determine the “due means, order, season and method” of approaching an unavoidable issue and reigning in the president.


And in Nashville prudence should dictate how pro-life legislators proceed after the passage of Amendment 1.

Public polls and campaign internal polls showed that well over 60% of Tennesseans believed a woman should be fully informed prior to an abortion, have time to consider that information absent life-threatening exigent circumstances, and know that the clinic she went to was licensed and inspected by the state health department. So, the prudent legislator would ask, “If that’s true, then why did the amendment only pass with only 53% of the vote?”

Having been intimately involved in the campaign, I can give you my opinion. The ten percentage point difference was a reflection of people’s distrust of their government and politicians and their application of that distrust to specter raised by opponents that the legislature would go “too far” in regulating abortion, beyond what they were ready to accept.

In that atmosphere of distrust and fear of government interference, prudence might consider how the cause of life can best be advanced over the long haul, not just in the short run. Whether prudence or being seen by others as the most pro-life legislator will win the day remains to be seen.


Prudence is in short supply in politics these days. And perhaps it’s because politicians cast prudence aside to placate the frustration of voters with gridlock. But as an old legislative colleague of mine used to say, “Sometimes you can get there faster by going slower.” Advice some of our current politicians would do well to heed.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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