Lessig limited his argument on two major points:
- The founders intended the electoral college to be a circuit breaker, yes, but to prevent the mob mentality of a minority of states with greater population concentrations forcing ideology on the majority of states.
- Clinton has been subject of many investigations and scandals over the years, including being up for potential indictment during the campaign for her actions holding public office, which, if followed through during her presidency, she’d be impeached, like Nixon….effectively a disqualification. Trump has not been indicted, nor was their any pending indictable offenses.
“it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States.”
Perhaps, there should be an amendment to the constitution that disqualifies a candidate under investigation for alleged indictable crimes carried out while holding public office. The reason being that even if they do get into office, they may be impeached anyway and, if not, they certainly hold a powerful position to actually curb investigative activities during their term or give the appearance of impropriety. A long held principle in the law is that a judge must recuse himself to avoid the look of impropriety in the interest of justice. Why should the executor of the law (or even legislators and administrators also) not be held to the same standard?
From Federalist 68 on the electoral college:
“Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one querter [sic], but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union?” (emphasis added) [Herein lies the problem with Hillary’s emails, pay for play and foreign contributions to the Clinton Foundation.]
“But the convention have guarded against all danger of this sort, with the most provident and judicious attention. They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment.” (emphasis added) [The electoral college changes and does so to avoid being tampered with by the candidates. It is also about having a person on the ground to see if the people vote free of duress, intimidation, hindrances, and general corruption.]
“The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States. It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue. And this will be thought no inconsiderable recommendation of the Constitution, by those who are able to estimate the share which the executive in every government must necessarily have in its good or ill administration. Though we cannot acquiesce in the political heresy of the poet who says: “For forms of government let fools contest That which is best administered is best,” yet we may safely pronounce, that the true test of a good government is its aptitude and tendency to produce a good administration.” (emphasis added)
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