Category Archives: Constitution

If We Have To Keep The Electoral College…

Discussions of Constitutional originalism tend to illuminate the very different meanings that different people ascribe to that term.

I’m currently reading “We the People” by Erwin Chemerinsky, the Dean of Berkeley’s law school, and I will return to the subject of “original intent” and his (and my) take on it once I’ve finished the book. But today, I want to propose an “originalism” experiment for those of us who are critical of the current, undemocratic operation of the Electoral College.

Democracy, of course, wasn’t the point of the College. But then, neither was its use as a partisan tool advantaging a reactionary political party, which is what it has become.

There’s a pretty robust consensus that a constitutional amendment simply getting rid of the Electoral College is unlikely to succeed, at least for the foreseeable future. And since some of the College’s most ardent defenders are also proponents of “originalism a la Scalia” (a legal approach so flawed that even Scalia couldn’t consistently apply it), I think we should begin a movement to make the College operate as originally intended.

Article II, Section 1, Clause 3 of the Constitution provided the original plan by which the electors voted for president. (Electors did not originally vote for vice president. The President would be the person who received a majority of votes from the electors, and the person receiving the second most votes would become vice president. That changed with the emergence of political parties, a phenomenon necessitating the 12th Amendment.)

Individual electors were supposed to be selected by a vote of citizens on a district-by-district basis, and were supposed to exercise their independent judgment when casting their votes for President. Wikipedia shares the following quote from Alexander Hamilton, describing the Founding Fathers’ “original intent” with respect to the electors:

A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated [tasks].

Over the years, the “original intent” of the Electoral College has been ignored.

Rather than electors who have been chosen by their neighbors to exercise their informed judgment on behalf of the citizens who chose them (and presumably knew who they were, either personally or by reputation), we now have slates of faceless elector candidates pledged to vote for their parties’ respective candidates. Most states also have passed laws prohibiting so-called “faithless electors”–that is, electors who exercise independent judgment and opt to vote for a candidate who did not win that state’s popular vote.

Does anyone believe that a majority of electors possessing “information and discernment” and exercising “independent judgment” would have cast their votes for Donald Trump? (Or for that matter, that such electors would have confirmed Florida’s “hanging chad” results?)

So here’s my proposal: If we must keep the Electoral College, by all means let’s start a movement to assure that it operates in a manner that is consistent with the Founders’ “original intent.”

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Limiting Power

Credit where credit is due: not only has the Trump administration rekindled civic engagement (scholars tell us that the number of people on the streets protesting exceeds the number who protested the Vietnam War), but his accidental ascension to the Presidency has highlighted the need to revisit constitutional provisions that no longer serve their intended purposes.

The problem, of course, is that We the People are too divided and too historically and civically illiterate to be trusted with the task of constitutional revision.

When–and if–the time ever comes that we are capable of making careful revisions to our foundational document, there are a number of issues to consider. The most obvious, of course, is the Electoral College, but there are also several aspects of federalism that should be reconsidered in light of contemporary technology and transportation. For example, there is no reason elections should continue to be administered by the states. A national, nonpartisan agency could maintain a national registration database, ensure standardized procedures and hours, and dramatically curtail partisan game-playing of the sort we’ve seen in Georgia and the incompetence Hoosiers experienced in Porter County, Indiana.

There is an even more significant assumption that we  need to re-think.

The American Constitution limits the power of the state. It was written at a time when governments were the entities wielding the most power, and focusing on the state made sense because constraining power was the whole point. The protection of personal autonomy–our individual right to direct our own lives, so long as we don’t harm the person or property of others and so long as we are willing to let others do the same–was the goal, and it required restraints on power.

I thought about that when I read this article from Common Dreams. Today, many governments are less powerful than multi-national corporations.

As corporations in the United States and around the world continue to reap record profits thanks to enormous tax cuts, widespread tax avoidance schemes, and business-friendly trade and investment policies, an analysis by Global Justice Now (GJN) published Wednesday found that the world’s most profitable companies are raking in revenue “far in excess of most governments,” giving them unprecedented power to influence policy in their favor and skirt accountability.

Measured by 2017 revenue, 69 of the top 100 economic entities in the world are corporations, GJN found in its report, which was released as part of an effort to pressure the U.K. government to advance a binding United Nations treaty that would hold transnational corporations to account for human rights violations.

“When it comes to the top 200 entities, the gap between corporations and governments gets even more pronounced: 157 are corporations,” GJN notes. “Walmart, Apple, and Shell all accrued more wealth than even fairly rich countries like Russia, Belgium, Sweden.”

As difficult as it can be to subject governments to the rule of law, constitutions and legal systems do provide mechanisms to hold them accountable.  By contrast, it is incredibly difficult for citizens to hold powerful corporations to account.  Increasingly, as the article notes, trade and investment deals allow corporations to demand that governments do their bidding rather than the other way around.

“From a coal mine in Bangladesh that threatens to destroy one of the world’s largest mangrove ecosystems to hundreds of people at risk of displacement from a mega-sugar plantation in Sri Lanka, corporations and big business are often implicated in human rights abuses across Asia” and the world, Friends of the Earth Asia Pacific noted in a blog post on Wednesday, describing the U.N. treaty as a potential “game-changer.”

“Companies are able to evade responsibility by operating between different national jurisdictions and taking advantage of corruption in local legal systems, not to mention the fact that many corporations are richer and more powerful than the states that seek to regulate them,” Friends of the Earth concluded. “We must right this wrong.”

The question, of course, is how?

It is becoming increasingly clear that massive reforms to global law and governance will be required if human liberty is to survive the changes that increasingly confront us. Given the numbers of people who have an overwhelming fear of change and who respond by embracing tribalism and autocracy, the odds of a successful “reboot” look pretty daunting.

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People Without Power

I’m old enough to remember the 60s slogan “Power to the People!”  And I’ve lived long enough to see “the people”–at least the people who vote– overpowered.

I’ve written periodically about the various ways in which America’s systems have become undemocratic–about gerrymandering, vote suppression, the Electoral College–but Ezra Klein puts it all together in a truly chilling essay for Vox. 

Brett Kavanaugh was nominated to the Supreme Court by an unpopular president who won 3 million fewer votes than the runner-up. He was confirmed by a Senate majority that represents a minority of the country. He was confirmed despite most Americans telling pollster after pollster they did not want him seated on the Supreme Court.

As Klein points out, a constitutional system built in America’s founding era, structured to address the issues of that era, is currently making the country both less democratic and less Democratic.

Since 2000, fully 40 percent of presidential elections have been won by the loser of the popular vote. Republicans control the US Senate despite winning fewer votes than Democrats, and it’s understood that House Democrats need to beat Republicans by as much as 7 or 8 points in the popular vote to hold a majority in the chamber. Next year, it’s possible that Republicans will control the presidency and both chambers of Congress despite having received fewer votes for the White House in 2016 and for the House and Senate in 2018.

Kavanaugh now serves on a Supreme Court where four of the nine justices were nominated by a president who lost the popular vote in his initial run for office, and where the 5-4 conservative majority owes its existence to Senate Majority Leader Mitch McConnell’s extraordinary decision to deny Merrick Garland a hearing. This Court will rule on the constitutionality of gerrymandering, voter ID laws, union dues, campaign finance, Obamacare, and more; that is to say, they will rule on cases that will shape who holds, and who can effectively wield, political power in the future.

When it is all put together, it amounts to a bloodless coup. (“Bloodless” in the sense that the GOP has taken power without force of arms. Not so bloodless if you think of people who are dying for lack of access to medical care although majorities favor Medicare-for-All, or consider the rising suicide rate being attributed to despair, or factor in the deaths that will occur as a consequence of ignoring climate change.)

Sandy Levenson teaches Constitutional law at the University of Texas, and has been warning about waning democracy and American government’s lack of legitimacy for several years. The article quotes him warning “At some point, people will get so angry that they will either talk about secession or start engaging in more direct measures, whether it takes the form of rioting or violence.”

Klein’s article goes into some detail about the original reasons for our unrepresentative systems–the compromises that were “baked into” the Constitution in order to get it ratified. As he points out, any free political system must determine how to ensure that different interests can engage in balanced competition. The problem in our system is that what we balanced for–large and small states– is no longer what’s competing.

The compromises made to calm the divisions between places is exacerbating the divisions between the parties, as Republicans dominate rural areas while Democrats cluster in urban centers.

By 2040, 70 percent of Americans will live in the 15 largest states. That means 70 percent of America will be represented by only 30 senators, while the other 30 percent of America will be represented by 70 senators.

It is not difficult to imagine an America where Republicans consistently win the presidency despite rarely winning the popular vote, where they control both the House and the Senate despite rarely winning more votes than the Democrats, where their dominance of the Supreme Court is unquestioned, and where all this power is used to buttress a system of partisan gerrymandering and pro-corporate campaign finance laws and strict voter ID requirements and anti-union legislation that further weakens Democrats’ electoral performance.

For those inclined to dismiss this analysis as overheated, Klein says

If this seems outlandish, well, it simply describes the world we live in now, and assumes it continues forward. Look at North Carolina, where Republican legislators are trying to change the state Constitution to gain power over both elections and courts. Look at Wisconsin, where state Republicans gerrymandered the seats to make Democratic control a near impossibility. Look at Citizens United, which research finds gave Republicans a 5 percentage point boost in elections for state legislators. Look at Georgia, where the GOP candidate for governor currently serves as secretary of state and is executing a voter purge designed to help him win office.

Klein references a number of changes that are being proposed, but whatever we might think of those changes, they won’t even be considered unless Democrats can overcome the odds and win control of both the House and Senate.

Pundits are always insisting that whatever election is imminent is “the most important of our lifetime.”

This one is.

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Oh, Texas–You Are So Predictable…

The Texas Attorney General is supporting a school district that expelled a student for failing to stand for the Pledge of Allegiance.

Where do I start?

Let’s begin with one of my all-time favorite Supreme Court opinions, written by Justice Jackson in the case of West Virginia Board of Education v. Barnett. It is a famous case, in which Jackson wrote that compelling a gesture of respect for the flag pledge violates the fundamental values of the First Amendment, which protects freedom of expression and thought from government intrusion.

The case is made difficult not because the principles of its decision are obscure, but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. … [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

Despite being a lawyer–or so I assume–the Texas Attorney General, Ken Paxton, has consistently demonstrated ignorance of the constitution. He did so once again in this case, issuing a statement saying “School children cannot unilaterally refuse to participate in the Pledge.”

Um…yes, they can.

India Landry, who is 17, was expelled from her school for refusing to recite the Pledge of Allegiance. That refusal was prompted by her considered belief that the government is not honoring the principles that flag is supposed to represent.

“I felt the flag doesn’t represent what it stands for, liberty & justice for all & I don’t feel what is going on in the country, so it was my choice to remain seated, silently.”

Forgive me if I view Paxton’s stirring–if embarrassingly uninformed–defense of the flag and the pledge as an effort to distract voters from his upcoming trial for fraud. According to the Dallas News, 

Texas Attorney General Ken Paxton was indicted for fraud nearly three years ago but is unlikely to go on trial before Election Day.

Paxton’s trials are on hold while the Texas Court of Criminal Appeals decides whether the prosecutors on the case are being overpaid. The court went on summer recess Wednesday, and won’t hear any cases or issue any major opinions before the fall.

This means they won’t announce a decision in the pay case until September, at the earliest, which experts said will delay Paxton’s trial dates until after the Nov. 6 election — and probably into next year.

You might think that pending fraud charges would be politically damaging, but hey! This is Texas. Republicans in Texas are apparently even less concerned with moral lapses and ignorance of job requirements than  Republicans elsewhere who still support Trump.

Paxton, a Republican, is running for a second term as the state’s top lawyer. Despite the indictments that have hung over him since months after his election in 2014, he has remained popular with conservative Republicans, raking in half a million dollars for his legal defense and boasting record fundraising numbers.

I guess he’s been too busy raising money and defending against fraud charges to research applicable legal precedents…

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Meanwhile, Under The Radar….

One of the problems with political discourse grows out of specialization–as the world around us gets more and more complicated, people who are experts in different fields, who use different vocabularies and operate from within different conceptual frameworks have trouble communicating with each other and with the public.

This “silo-ing” can be frustrating, and it’s made worse by the unnecessary use of jargon. But a lot of it is inevitable. I can’t follow the more detailed statistical analyses of my economics colleagues, or the computations that support climate science, or the medical terminology my doctor uses.

Similarly, very few Americans follow legal matters that are more complex than an episode of “Law and Order.” That’s why a case currently pending before the Supreme Court has gotten very little attention, despite its potential consequences. The case is Gamble v. United States.

To its credit, The Atlantic had an article explaining the issue, and those consequences.

Gamble addresses a fairly arcane area of constitutional jurisprudence:  the dual-sovereignty doctrine. That’s a 150-year-old exception to the Fifth Amendment’s prohibition of double-jeopardy. In plain English, the doctrine allows state and federal courts to prosecute the same person for the same criminal offense.

And why, you are asking yourselves, should you give a rat’s patootie about that?

Within the context of the Mueller probe, legal observers have seen the dual-sovereignty doctrine as a check on President Donald Trump’s power: It could discourage him from trying to shut down the Mueller investigation or pardon anyone caught up in the probe, because the pardon wouldn’t be applied to state charges. Under settled law, if Trump were to pardon his former campaign chairman Paul Manafort, for example—he was convicted last month in federal court on eight counts of tax and bank fraud—both New York and Virginia state prosecutors could still charge him for any crimes that violated their respective laws. (Both states have a double-jeopardy law that bars secondary state prosecutions for committing “the same act,” but there are important exceptions, as the Fordham University School of Law professor Jed Shugerman has noted.)

If the dual-sovereignty doctrine were to be tossed, then Trump’s pardon could theoretically protect Manafort from state action.

Senator Orrin Hatch has submitted a brief in the case, arguing that the doctrine should be invalidated, although he claims the Mueller investigation has nothing to do with it. (Pardon me while I snicker….)

Here’s the analysis: If Trump shuts down the Russia investigation, Mueller  could “farm out” cases to state-level attorneys general. Those AGs can’t be shut down by Trump and they can, within some limits, charge people with state crimes, even after those people have received a federal pardon. If the dual-sovereignty doctrine is invalidated, however, a federal pardon would essentially block a subsequent state-level prosecution.

The original issues in the case had nothing to do with the Russia investigation; it began as a relatively arcane argument about how federalism should work. And Paul Rosenzweig, a senior fellow at the conservative R Street Institute thinks it may not have the effect that Orrin Hatch evidently thinks it will.

Trump’s pardon power is “explicitly limited in the text of the Constitution to pardons for ‘offenses against the United States,’” Rosenzweig said. If that language is interpreted to mean federal criminal offenses specifically, a Trump pardon wouldn’t protect against a state criminal prosecution, he said, no matter what happens to the double-jeopardy clause in Gamble.

If that Constitutional language is interpreted that way. But it probably won’t be, if Brett Kavanaugh–or someone like him– is on the Court.

That’s one example of why judicial philosophy–and appointments to the Court– matter a lot more than many people think.

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