Category Archives: Constitution

An Immodest “Modest Proposal”

Talk about “thinking outside the box”!

Ever since the 2016 election, there has been increasing concern voiced about the blatantly undemocratic aspects of American governance–the Electoral College, of course, and the enormous impact of money in politics–but also the fact that the “majority” party in control of the Senate represents about fifteen million fewer people than the “minority” party.

Changing these inequities through the constitutional amendment process would be a fool’s errand. Given the political environment, and the difficulty of the process, it ain’t gonna happen.

We could work around the need for constitutional changes, however, if we followed the advice of a recent article in the Harvard Law Review. As Vox explains,

An unsigned note, entitled “Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation” and published in the Harvard Law Review, offers an entirely constitutional way out of this dilemma: Add new states — a lot of new states — then use this bloc of states to rewrite the Constitution so that the United States has an election system “where every vote counts equally.”

To create a system where every vote counts equally, the Constitution must be amended. To do this, Congress should pass legislation reducing the size of Washington, D.C., to an area encompassing only a few core federal buildings and then admit the rest of the District’s 127 neighborhoods as states. These states — which could be added with a simple congressional majority — would add enough votes in Congress to ratify four amendments: (1) a transfer of the Senate’s power to a body that represents citizens equally; (2) an expansion of the House so that all citizens are represented in equal-sized districts; (3) a replacement of the Electoral College with a popular vote; and (4) a modification of the Constitution’s amendment process that would ensure future amendments are ratified by states representing most Americans.

The Constitution provides for the admission of new states through an ordinary act of Congress requiring a simple majority vote. If it weren’t for a different provision–one that prevents new states from being “carved out” of existing ones unless the legislature of the existing state consents– we might just root for the folks who are trying to divide California into three states.

Since it’s unlikely that California’s legislature– or that of any other state–would agree to be split, the alternative is to chop up the District of Columbia. That gets around the constitutional problem because Washington, DC, isn’t a state.

Similarly, the Constitution effectively prohibits amendments that eliminate Senate malapportionment. The Harvard note proposes getting around this problem by transferring the Senate’s powers to another body. “The Senate’s duties,” it argues, “could be changed without modifying its composition.

Details aside, however, the wild thing about this Harvard Law Review proposal is that it is absolutely, 100 percent constitutional. The Constitution provides that “new states may be admitted by the Congress into this union,” but it places no limits on the size of a state either in terms of population or in terms of physical space.

It turns out that there is a long and ignoble history of partisans admitting new states in order to give their party an added advantage in the Senate. Vox notes that In 1864, Republicans admitted Nevada — at the time a desert wasteland with a few thousand residents — in order to give the GOP two extra Senate seats.

We have two Dakotas because those same Republicans celebrated their 1888 victory by dividing the Republican Dakota Territory into two states, in order to get four senators rather than two. And thanks to gerrymandering, each rural vote is worth 1 1/3 of each urban vote.

As the article concludes:

So let’s be frank. The Harvard note’s proposal is ridiculous, but it is no more ridiculous than a system where the nearly 40 million people in California have no more Senate representation than the 578,759 people in Wyoming. As the Harvard note says of its own pitch, “radical as this proposal may sound, it is no more radical than a nominally democratic system of government that gives citizens widely disproportionate voting power depending on where they live.”

Just because we’ve always done it that way doesn’t mean it makes sense.

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Those Damn Courts Can’t Overrule Me!

Sometimes, only a Yiddish word is capable of adequately conveying the disdain of an insult. Chutzpah is infinitely stronger than gall, its most common English translation. It’s also more earthy than hubris, and more all-encompassing than smugness.

And chutzpah absolutely permeates a measure that has been introduced in the Indiana House of Representatives by  Representative Curt Nisly. Here is the digest of House Bill 1089:

Protection of life. Repeals the statutes authorizing and regulating abortion. Finds that human physical life begins when a human ovum is fertilized by a human sperm. Asserts a compelling state interest in protecting human physical life from the moment that human physical life begins. Provides that court decisions to enjoin the law are void. Specifies the duty of Indiana officials to enforce the law. Specifies that federal officials attempting to enforce contrary court orders against Indiana officials enforcing the law shall be subject to arrest by Indiana law enforcement. Redefines “human being” for purposes of the criminal code to conform to the finding that human physical life begins when a human ovum is fertilized by a human sperm. Makes other conforming changes.

Where to begin…

Ignore, for purposes of this rant, the fact that the only life Rep. Nisly is interested in “protecting” is that of the fetus; if the pregnancy threatens the life of the woman carrying that fetus, evidently that’s just too bad.

There is, of course, the enormous chutzpah displayed by a man with no medical credentials–a man who owns a sheet-metal company–who feels entitled to determine when life begins, and the chutzpah of a person who can never be pregnant dictating behavior to those who can be. (Pregnancy, as people with medical credentials will confirm, is a greater risk to women’s health than abortion. But Rep. Nisly is willing to force all women, whatever their medical or emotional or financial circumstances, to assume that risk. No skin off his nose.)

That’s bad enough, but what really is astonishing about this piece of excrement–what demonstrates both outrageous chutzpah and monumental constitutional  ignorance–is Nisly’s apparent belief that the legislature can pass a bill that overrules the courts and prevents the executive branch from enforcing court orders.

Checks and balances? Piffle.

Separation of powers? What’s that?

The Constitution? If Trump doesn’t have to read, understand or obey it, why should Rep. Nisly?

Even in a legislative chamber as overwhelmingly rightwing as Indiana’s, this is highly unlikely to pass. (I use the term “rightwing” rather than “conservative” because there is absolutely nothing conservative about people who don’t want to conserve the values of the Constitution and Bill of Rights.) Even our legislature’s dimmer bulbs aren’t likely to endorse a measure that simply ignores our country’s entire legal structure. But you have to ask yourself: who votes for the sort of ignoramus who would propose a bill like this?

And what sort of ego–what monumental amount of chutzpah–does a person have to have in order to run for public office without bothering to understand the government he wants to be part of?

Oh yeah…

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It’s Called Projection

In psychology, the term “projection” means accusing someone else of a flaw or negative characteristic that you, yourself, exhibit. (We see lots of examples from this President, who calls other people “dumb” or “fat” or “a liar”…)

A recent report from the Washington Post provides a perfect example.

A Post survey found that white Evangelicals in the U.S. are convinced that atheists and Democrats (categories that they see as interchangeable) would, if elected, strip them of their rights.

Of those white evangelical Protestants, we found that 60 percent believed that atheists would not allow them First Amendment rights and liberties. More specifically, we asked whether they believed atheists would prevent them from being able to “hold rallies, teach, speak freely, and run for public office.” Similarly, 58 percent believed “Democrats in Congress” would not allow them to exercise these liberties if they were in power.

In other words, these respondents believed that–if they were in power– atheists and/or Democrats would refuse to extend fundamental civil liberties to people with whom they disagreed.

Admittedly, there are many Americans who take the position that “freedom is for me but not for thee.” Research confirms that a very troubling percentage of the general public is willing to curtail the liberties of groups they dislike. That research suggests that only 30% of the general public would grant disfavored groups the same rights they themselves enjoy, an incredibly depressing finding.

The perception by white Evangelicals that they are disliked is also pretty accurate.  Research into intergroup attitudes confirms that white Evangelicals are among the least-liked groups by pretty much everyone else, and certainly by atheists and Democrats. The question isn’t about likes and dislikes, however. It’s whether distaste translates into a desire to deny the objects of that animosity their First Amendment rights.

It turns out that 65 percent of atheists and 53 percent of Democrats who listed Christian fundamentalists as their least-liked group are nevertheless willing to respect the civil liberties of those fundamentalists. As the article noted, that’s a much higher proportion than the sample overall.

And that brings us back to the psychology of projection, because it also turns out that those fearful White Evangelicals are attributing their own unsavory motives to atheists and Democrats.

We found that a smaller proportion of white evangelicals would behave with tolerance toward atheists than the proportion of atheists who would behave with tolerance toward them. Thirteen percent of white evangelical Protestants selected atheists as their least-liked group. Of those, 32 percent are willing to extend three or more of these rights to atheists. In fact, when we looked at all religious groups, atheists and agnostics were the most likely to extend rights to the groups they least liked.

Conservative Christians believe their rights are in peril partly because that’s what they’re hearing, quite explicitly, from conservative media, religious elites, partisan commentators and some politicians, including the president. The survey evidence suggests another reason, too. Their fear comes from an inverted golden rule: Expect from others what you would do unto them. White evangelical Protestants express low levels of tolerance for atheists, which leads them to expect intolerance from atheists in return.

The Golden Rule isn’t the only thing these people have inverted, according to my friends in the clergy.

It’s ironic that self-proclaimed “Christian Patriots” are perfectly willing to subvert the clear mandate of the Bill of Rights– and the equally clear teachings of the Savior they purport to worship– in their pursuit of social dominance.

They lack both authentic Christianity and genuine patriotism–the very deficits they project onto atheists and Democrats.

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Beating That Dead Horse

I’m still mulling over that screenshot I referenced a few days ago–the one from the pro-Trump website showing the names and pictures of four people identified as Democratic Senators who were switching to the GOP in protest of the President’s Impeachment.

As you’ll recall, none of them were real Senators–or, probably, real people.

Whoever created that website clearly operated on the assumption that visitors would be  partisans so civically-ignorant that the phony names and stock photos wouldn’t trigger doubts or send them to a fact-checking site.

It was probably a well-founded assumption.

We occupy a fragmented media environment that increasingly caters to confirmation bias.  As I’ve frequently noted, Americans no longer listen to the same three network news shows and read the same daily newspapers; the ensuing intense competition for eyes, ears and clicks has spawned a treacherous information terrain.

A post at The World’s Most Dangerous Beauty Salon, Inc. is enough to curl your hair. (Sorry–couldn’t resist.) It even has graphs showing how Right-wing hoaxes and Trump’s tweeted lies proliferate.

Yesterday I talked about how Trumpists flocked to their latest article of faith that Trump isn’t really impeached because the House hasn’t transmitted the articles of impeachment to the Senate.  There is no basis in law or fact for that belief, but it’s there anyway, virally spreading throughout Trumpland.

Another profoundly stupid message that has evidently convinced those who want to believe: now that Trump is impeached, he’s automatically eligible to run 2 more times.

With rampant propaganda proliferated over social media facts or truth no longer matter.  Worse, Trump’s Twitter account amplifies these lies.  Every time he tweets one of his insults, childish taunts, threats, or lies,  it goes out to millions or users, retweeted thousands of times.  In the hands of an immoral politician like Trump, social media is weaponized for the dark side.  You can see it, but can also measure it.

The above-referenced graphs of Google trend lines show searches for these “facts.”

When I first practiced law, an older lawyer in my firm told me that there is really only one legal question, and that’s “what should we do?” That maxim applies more broadly; it absolutely applies to the absence of what has come to be called “news literacy.”

Every so often, one of my more naïve students asks why the government can’t just pass a law requiring media outlets to tell the truth. As I try to explain, truth and fact are often honestly contested—and of course, there’s the First Amendment. But we aren’t powerless just because government is prohibited from censoring us.

There’s no reason the private sector cannot develop tools to help citizens determine who they can reasonably rely on—and who they can’t. (The current criticism of Facebook for allowing campaigns to post dishonest political ads is based upon that company’s legal and technical ability to eliminate them.)

What if a nonpartisan, respected nonprofit—say the Society for Professional Journalists—developed an analog to the “Good Housekeeping Seal of Approval,” attesting to the legitimacy of a media source? The award of that seal wouldn’t indicate the truth or falsity of any particular article, but would confirm that the organization was one that adhered to the procedures required of ethical, reputable journalists.

It would take substantial funding, of course, to develop and maintain the capacity to monitor the practices and procedures of media outlets claiming to be “news.” And that “seal of approval” wouldn’t mean that any given report wasn’t flawed in some way—genuine reporters are human and make mistakes. But it would allow citizens who actually care about accuracy and evidence-based reporting to be reassured about the journalistic bona fides of sources they encounter.

Those bona fides are important, because in the new information world we all must navigate, each of us is our own “gatekeeper.” The days when editors and reporters decided what constituted verifiable news are long gone.

And that brings me back to the screen shot shared by my friend.

I know I’m beating a dead horse, but propaganda flourishes when only 26% of adults can name the three branches of government, fewer than half of 12th graders can define federalism and only 35% of teenagers know that “We the People” are the first three words of the Constitution. When politicians make claims that are blatantly inconsistent with America’s history and form of government, widespread civic ignorance virtually guarantees the uncritical acceptance of those claims by partisans who desperately want to believe them.

Adequate civic knowledge can’t guarantee that visitors to a website will know fake Senators when they see them–but it’s an essential first step.

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When Should The Majority Rule?

In the wake of Boris Johnson’s victory in the election in the UK, a distinguished scholar of comparative constitutionalism posted a lengthy analysis to a listserv in which I participate. Much of that analysis is technical and of interest mainly to other academics, but I was struck by her opening observation:

Calling the Johnson victory a landslide assumes that the results of nationwide first-past-the-post constituency elections adequately capture public sentiment. Yes, Johnson got an overwhelming majority of seats but he didn’t win even a simple majority of the vote. In fact, it turns out that the Tories were up a mere 1.2% in vote totals over their disastrous 2017 election results – in which they lost their parliamentary majority and had to enter a confidence-and-supply agreement with the DUP. Labour is now being called down and out with the worst election results (measured in seats) since the 1930s because they were 7.8% down from 2017. Compared with the 2015 election, they were only 2% down, hardly the stuff of grand tragedy…

The UK first-past-the-post electoral system is fiendishly sensitive to small vote shifts which can produce seismic effects depending on how they are distributed across constituencies.

Sound like another electoral system with which you’re familiar?

Politicians and pundits will continue their ongoing arguments for and against the Electoral College, and the British are evidently embroiled in similar discussions about the operation of their system, but there is an underlying issue with which we very rarely engage: what sorts of social and legal arrangements ought to be decided by popular majorities, and what sorts ought to be protected from the passions of those same majorities?

Defenders of the Electoral College point to the Founders’ well-documented concerns about those “passions of the majority,” and to their initial reluctance to remit even the choice of Senators to popular vote. Opponents point to evidence that the Electoral College was a concession to Southern states– they would have been severely disadvantaged in a system where the popular vote prevailed, because their slaves wouldn’t count.

Whatever side of that argument you find most persuasive, the question remains: in the 21st Century, which decisions should be made by popular vote, and which should not?

A fair reading of the Founders’ basic approach–buttressed by political philosophers from the Enlightenment to modern times–suggests that they favored some form of majority rule for issues of governance, and protection from the “passions of the majority” for issues of human and/or individual rights.

If we look at the Constitution, we see that laws are to be made by representatives of the people (the reason we call ourselves a representative democracy). Although it is certainly true that those representatives were supposed to vote for legislation based upon their presumed knowledge and personal beliefs, if those votes proved to be inconsistent with the desires of their constituents, the constituents could vote them out. (It’s also worth noting that legislation was supposed to be passed by a simple majority vote of those legislators–something that seems quaint in an era where overuse of the filibuster means we need super-majorities in the Senate to pass pretty much anything.)

If we look at the Bill of Rights, we see a very different standard. Because the Founders believed in “natural rights”–that is, they believed that humans (okay, white male humans) are born with certain “unalienable rights”–they protected the exercise of those rights against the sentiments of popular majorities.

When you think about it, it’s a striking dichotomy.

It is supposed to take a majority of American voters (or states) to choose the people who will run our government. It is supposed to take a majority of lawmakers to pass legislation. But individual citizens are supposed to be protected against the disapproval of those same popular majorities when they are exercising their fundamental rights.

We can–and do–argue about how to define “fundamental rights” and how to ensure that vote totals accurately reflect majority sentiment. But I think it is fair to say that when electoral systems operate to privilege minority parties and candidates over those preferred by majorities, those systems are neither democratically nor constitutionally legitimate.

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