So would you argue that Bill Clinton wasn't able to legitimately claim that he was "the people's choice"? Even in 1996, he fell well shy of 50%. This has never been an aspect of our system that's bothered me, largely because of all the problems with the alternatives. Once there's no disincentive to "throw your vote away," support for third parties rises, and you'd pretty frequently get a situation where the candidate with the most first-place votes loses due to second-place votes. Maybe that is more democratic in a sense than our current system, but I tend to think that most Americans would find a winner with fewer first place votes to be illegitimate. Granted, most folks got over the 2000 outcome, but I'd argue that the reason you saw so little ecrasez l'ectoral college fervor is that people were so exercised by the recount drama that they forgot about the much bigger injustice of the election.
 

I think that Tray has a point. In a close election, such as the Franken-Coleman one, perhaps the third-party voters' second choice should be the deciding factor. But imagine that the results had been Franken 49%, Coleman 26%, and a third party candidate 25%, where Coleman was the second choice of all the third-party candidate's supporters. Would it be right then to give Coleman the victory? Perhaps a compromise between Levinson's and Tray's approach would work. Count the third-party supporters' second choice only when the first two candidates end up with only a specified small difference between them.
 

Instant run-off or a runoff election are two options with the first one easier. The Georgia case was a waste -- how expense it must have been for a fraction of one percent?

Anyway, let's say there was only a token third candidate. It could have still been a near tie, so who's the "people's choice" really?

The choice of the one a speck more voted for, I guess. Of course, in many non-presidential elections only a fraction of the electorate votes.

So the "people's choice" in this case can amount to be half of a fraction. This too is something to ponder.
 

It all depends on what the goal is. If the goal of an election is to determine the "will of the people", then it is a goal that, in many cases, will remain out of reach, as that changes moment to moment and even between when an election is held and the results are reported.

If the goal is that the election be "fair" to all parties, large or small, again, this is an unachievable goal.

If goal is reducing the chances of a close election, requiring extra expense or a circus like Florida, with resulting lawsuits, throwing the election into the hands of a tiny judicial electorate, then anything, like instant run-off, which tends to add dimensions to the calculation will be beneficial. That this may result in a candidate receiving more first-place votes yet losing the election is less a problem than that some plurality could over-ride the will of the majority (as happened in 2000, for example.)

That some will grumble in some cases is a given and should be no bar to something more sensible than the status quo.

The existing system is a relic of the days when ballots had to be counted by hand. We could go back to potsherds, but it seems to me that, when umpteen millions of people are involved, a method which takes advantage of modern technology would be a huge leap forward.
 

I propose a "Last Comic Standing" type run-off election. It's too bad the late George Carlin isn't with us anymore for a reality check. So we should settle for Stuart Smalley, who just might pass on his message to other Senators:

"You're Good Enough, You're Smart Enough, and Doggone It, People Like You."

and get rid of cloture.

Happy Holiday to all.
 

I prefer a separate rather than an instant run off to allow protest voting to dissipate and to give those who stayed home a chance to reconsider.

This would have given Gore a chance to get Nader voters and Bush a chance to get the religious conservatives who stayed home on the last minute DUI smear to the polls.

The GOP voters stayed home in droves during the past election. Thus, an instant runoff in the Georgia senate race could have been very close. However, once the reality of a Dem government with nearly no checks sunk in, Chambliss was able to get the GOP to the polls in the runoff election and win a double digit victory.
 

What exactly is it with Minnesota anyway?

First they elect a professional wrestler as Governor, now very likely a buffoonish tax dodging second rate comedian for Senator.
 

There is a plexus of issues which the alternative choice vote method addresses only partly.

In some regions, and some epochs, there are politically engaged but also other politically disenchanted members of society. In some elections, only one eligible voter in seven shows at the polls, in other elections perhaps 2 of 3 eligibles vote; in either instance a numerical minority elects the candidate.

A more technical issue, one that is discussed extensively in electoral law literature, appears when candidates attempt collusion during the campaign, a barter system by which there is agreement between the third party candidate to serve as the spoiler only until the first count is complete. I have read several reports that when a major city in the west instituted "instant runoff", that kind of secret, and often public, slate making became the new rule of the day for political alliance formation. Campaign donors keyed on the candidacies most likely to serve their narrowly channeled causes and supported the slates which would result in the desired outcome for the specific constituency.

Consider as well the ancient tale of how in San Diego the strongest mayoral vote getter was sandwiched out of becoming mayor by a runoff process supplemented by a court which disqualified disputed ballots, some years ago. One of the difficult aspects of the vote count and recount process is the fixed end date by which certification is set and someone indeed takes office. In the San Diego case, an incumbent was tired of being mayor, but special interests persuaded that mayor to enter the election only to serve as a foil for the challenger; three months following the disinterested retiree's reelection that person resigned; local bylaws allowed the town council with a conservative majority to appoint the replacement.

There are many versions of these stories and viewpoints there in SanDiego, and in the other city which has adopted instant runoff.

I am not sure a MN senator race is truly a fair parallel, especially as statewide elections tend to be routinely between the two principal parties rather than splintered local groups who field often even nonpartisan candidates, favoring instead issue-centric individuals who will forward a narrow agenda to reward local socioeconomic pressure groups.
 

Governor Jesse Venutra was not just an actor/entertainment (like President Ronald Reagan) and a professional wrestler. He served admirably in the United States Navy as a Navy UDT and with the Underwater Demolition Team 12, and he was a Navy "SEAL". He was awarded the National Defense Ribbon and the Vietnam Service Ribbon as well. So, like many great politicians before him, Governor Ventura was a decorated soldier. Furthermore, before becoming Governor, he served as Mayor (chief executive of the city) of Brooklyn Park. He always ran as an Independent, not with either party.

Those who make insulting comments to Minnesotans and former governors with distinguished service only prove once again how irrational, dishonest, alien, un-thinking, misread, and out of touch they are. They should just pole vault to Mars so the rest of us may get on with our lives on Earth.
 

Bobby:

Reagan was also a union president, managed a real estate portfolio that made him a fortune and a two term governor before he went to DC.

While Mr. Ventura's service as a SEAL is more than commendable on its own merits, it did not provide the experience to perform the tasks of a governor as demonstrated by his unproductive one term tenure.

Mr. Franken does not even have the character building experience of serving in the military to offer. The man is a second rate comedian, polemicist and tax evader. Minnesota would have been better advised to elect Ann Coulter because she is at least a first rate polemicist and has a law degree and served as a judicial clerk.
 

Baghdad, when one considers that everything you touch turns to shit, the people of Minnesota should be happy that you disapprove of their choice.
 

have the character building experience of serving in the military to offer

If that is where your character was built, the character building experience of serving in the military is overrated.
 

As a candidate, Jesse Ventura was brilliant (some of his speeches were of nearly Obama-like quality). As a governor, he was far from the worst of them, although he had his drawbacks. Let's just say that he did far better in Minnesota than George Bush has done in Washington. Few people express regret at having voted for Jesse, given that the alternatives were a party hack (who was the son of a party luminary) and the obsequious and despicable Norm Coleman.

Obviously, the people of Minnesota found Al Franken's payment of back taxes (after he discovered he'd mistakenly paid his taxes in the wrong state) acceptable, so he's only a "tax evader" in Bart's fevered imagination.

Whether the people of Minnesota found the reports of Norm Coleman's acceptance, through his wife, of kickbacks from a wealthy supporter, or Coleman's sleazy "rent" arrangement with a GOP operative, a reason to vote against him, or whether they simply thought Coleman too much a GOP member (in spite of his desperate attempts to distance himself from his party) is not really known.

Or perhaps, like the people of Saint Paul, where Coleman ran as a Democrat to get elected, and then switched to Republican to get his next gig, Minnesotans find Coleman to be a sleazy, characterless opportunist -- and while politicians of such stripe can get elected in other states (as Tancredo did, in one of those western states -- I forget which one), their career in Minnesota is over if they are perceived that way.

Al Franken's campaign was smart, well-run, and Al comes across honest, in sharp distinction with Norm, who appears to have been crafted in the same workshop as Pinocchio, but sans the redeeming qualities.

It's not just Bart's imagination that Franken is a liberal, so, even if everything else were explained away, Bart would still find it impossible to understand why people would vote for Franken.

Perhaps, though, the question ought to be why the people of Minnesota ever elected Norm Coleman. (Here's a hint: plane crash just before the election. Otherwise, Norm's career would have ended before it began.)

I know, I know, when trying to inform the void inside Bart's skull, remember that you cannot fill up, get useful information out of, or even illuminate, a black hole.

Back to the issue at hand, another reason for instant run-off is to enhance the voting experience. If you give the voters more choices, turnout will almost certainly improve. Except for the GOP, I think everybody is in favor of improving voter turnout, yes?
 

The purpose of the Georgia runoff is to allow two white candidates and a black candidate to run without any possibility of the black candidate winning because of a nearly equal white split. It works against a populist candidate because it requires the mobilization of the hard to turn out for two successive elections. Turnout at the second election is typically less than half of that at the first.

Ranked voting is by far the better alternative from a democratic theory point of view. However, in a country that can't figure out a butterly ballot, it seems beyond the ken of the electorate. We'll see how well the digital TV transition goes. While electronic voting makes it more possible than ever before, can you imagine everyone doing touchscreen drag-and-drop? Where people can't make an X in a box, can they be expected to choose between making an X in a 1st choice or 2nd choice box?
 

Moderators: The reason why more intelligent people don't comment on this otherwise great blog is solely due to the insulting, un-reasoned attacks of "Bart dePlama." He has had a "good" run here. He behaves like a comment troll insulting citizens of a state and never, ever advancing clean, well-supported arguments (I happen to be Libertarian and a Minnesota resident so I am open to principled, reasoned conservative views but not insults, attacks, silly comments without evidence, homophobic bigotry, etc--all examples of "Bart's" abuses.

You may wish to ban him in the new year. Please take note of what I'm saying. Comments are moderated on every board.

Most here agree with me.
 

Bart said, "Minnesota would have been better advised to elect Ann Coulter because she is at least a first rate polemicist and has a law degree and served as a judicial clerk."

If one considers hate mongering, crude insult, unfunny "humor" and distortion of fact as the rhetorical tools of a first rate polemicist, perhaps this does not read as such a startling and fantastic statement. However, to more critical readers, Ms. Coulter can only be seen as a grotesque reflection of the worst and most irrational (and anti-rational) aspects of our national id. In addition to her contempt for America and for reasoned discussion, she seems almost psychopathically devoid of humanity.

As for her law degree and clerkship, one need only view John Yoo or David Addington to see that such apparent experience and education as many lawyers may obtain is no innoculation against terrible judgement and criminal culpability for the worst of which humans are capable. Franken, if he should secure office, may prove to be a good or bad or indifferent Senator, but his lack of a legal background is no criterion at all to assume the worst, and may even be a reason to hope for the best.
 

Robert:

I guess my sarcasm went to waste. The point was that Franken no more belongs near the halls of actual power than Coulter.

Ms. Coulter and Mr. Franken are of the same ilk. All of your criticisms of Coulter, some of them justified, can equally be applied to Franken's Air America show and his books.

I would never cast a vote for Coulter and I cannot conceive of any serious person, nevertheless half a state, voting for Franken.

This has the same surreal quality of the Italians voting for porn star La Cicciolina.

The folks in Minnesota must have a black humor from too many months of snow to send someone barely qualified to be a court jester to our version of the royal court as their Senator.

This is not a GOP thing, or a Dem thing, its a you shouldn't elect unqualified abusive fools thing.
 

You may wish to ban him in the new year.

I'm with Bobby. And, if the moderators won't do it, then the rest of you ought to ignore him. His comments are not worth answering seriously, and they are not worth answering with insults such as "everything you touch turns to shit." He is just trying to provoke, and, when you reply you give him what he wants.
 

He is just trying to provoke, and, when you reply you give him what he wants.

# posted by Henry : 7:22 PM

That is not true. He's using this blog to spread rightwingnut propaganda because it's the largest audience he can get. Ignoring him won't stop him, it just leaves his bullshit unopposed.
 

As a dedicated reader of one of the best blogs and comments sections on the net, and as one of those who has taken his share of swipes at 'Bart,' I have to agree with Henry. Bart has long outlasted his sometimes useful role as provocateur, and while I personally agree with the site's decision to not ban him I think Henry's right that Bart should be ignored. I know this discussion has been had before, and I know certain folks insist on responding to 'Bart's' effluvia, but at this point as a dedicated reader I'm finding his tripe, and perhaps more importantly the responses to it, to be less puerile than... disappointing. Please let it go, folks.
 

He's using this blog to spread rightwingnut propaganda because it's the largest audience he can get. Ignoring him won't stop him, it just leaves his bullshit unopposed.

Bartbuster, do you think that he can change the minds of any readers of this blog? I don't think that even he is stupid enough to believe that he can. No harm will come of leaving his bullshit unopposed, and, if we ignore him, then we can have worthwhile conversations with each other instead.
 

do you think that he can change the minds of any readers of this blog?

I have no idea. I didn't think we we would be dumb enough to re-elect Bush in 2004.

In any case, I don't believe that ignoring scum like Bart is the way to go. They should be confronted. Sorry.
 

I don't think that even he is stupid enough to believe that he can

I'm not sure he's that stupid, but he's definitely that fanatical.
 

I didn't think we would be dumb enough to re-elect Bush in 2004.

We didn't re-elect Bush in 2004; people like Bart did. We can intelligently discuss things among ourselves instead of responding to Bart.

By way of analogy, one might take the trouble to respond to a Holocaust denier on an anti-Semitic blog, but one wouldn't bother to on this blog.
 

We didn't re-elect Bush in 2004; people like Bart did

No, people like Bart think we should elect Palin. It took a lot more than that to elect Bush.

Look, I would rather see the owners of tbis blog ban Bart, but that is not going to happen. The next best option is to confront him. Perhaps once the blog comments section is completely unreadable the owners will feel compelled to do something about it.

By way of analogy, one might take the trouble to respond to a Holocaust denier on an anti-Semitic blog, but one wouldn't bother to on this blog.

I would hope that a Holocaust denier would be confronted in here.
 

Perhaps once the blog comments section is completely unreadable the owners will feel compelled to do something about it.

I'm not sure that it can get any worse. Bart's comments and the responses to them have dominated the comments section for as long as I can remember. I generally skip over the comments by Bart and his adversaries, which leaves me little to read in the comments section. This conversation started when Bobby, at 5:35 p.m., wrote, "The reason why more intelligent people don't comment on this otherwise great blog is solely due to the insulting, un-reasoned attacks of 'Bart dePlama.'" I think that he's right.
 

I would hope that a Holocaust denier would be confronted in here.

I'm sorry to belabor this, but, seriously, why? A Holocaust denier cannot be educated by facts, and no one else who reads this blog needs to be told that the Holocaust occurred. If you were to confront a Holocaust denier, then you would be allowing him to choose the subject for discussion. I hope that it is clear that what I've just said applies to Bart, whose comments are worthy of little more attention here than a Holocaust denier's would be.
 

seriously, why?

To stop it from happening again.

Look, in 2003 our country essentially invaded Poland. Had it gone as well as the real invasion of Poland, we probably would have invaded France/Iran. The people who made that happen (Bart) must be confronted. They convinced this country that invading Iraq was a good idea. You are very naive if you think the resulting disaster has completely stopped them.
 

bobby, henry, et al, it's probably the case that most of the readership here agree with you and would prefer to have Bart banned as Glenn Greenwald did at his blog. I'm an interested non-lawyer who comes here to try and learn by observing the discourse among professionals, and even I can recognize that in the few instances where Bart tries to test his own lawyerly skills (rather than simply provoking), he rarely argues in good faith and generally resorts to obfuscation and prevarication. Consequently, I've taken to just skipping remarks with his signature -you'll get the gist from the subsequent schooling he takes from the likes of Mourad- I recommend you do the same.
The people who suggest ignoring him are on the right track. While I'm sure he would dismiss the notion, judging from the time he invests, this site is likely one of Bart's passions in life- there's probably no where else he can go and be the belle of the ball, even if it takes frequently acting the fool. All of the insults folks throw at him would be nothing compared to just making him invisible - let him and bartbuster ultimately enjoy their own private dialogue.
 

Why doesn't Bartbuster or somebody create a Whack-A-Bart blog? The first person encountering a Bart post will cross-post it to Whack-A-Bart and leave a comment saying so. Then everyone who wants to deal with Bart can do so without cluttering up otherwise interesting threads.
 

Why doesn't Bartbuster or somebody create a Whack-A-Bart blog? The first person encountering a Bart post will cross-post it to Whack-A-Bart and leave a comment saying so.

# posted by r.friedman : 4:59 PM

That is probably the most idiotic idea I have heard for dealing with this clown.
 

Bartbuster, to call an idea "idiotic" without stating why you think it is idiotic does not advance the discussion. Even Bart does not usually engage in that kind of posting. Your insistence on confronting him makes you, in a sense, his mirror image. By assuming the name that you have, you have allowed him to define your identity, and, by refusing to ignore him, you and others have allowed him to define the identity of the comments section of this blog.
 

The insignificance of little Lisa's bro reminds me of a law school classmate's description back in the early 1950s of someone similarly situated as "A nit on a gnat's nut." This may not have been original with my classmate but it sure put things in perspective.
 

Bartbuster, to call an idea "idiotic" without stating why you think it is idiotic does not advance the discussion.

Where did you get the idea that I wanted to "advance the discussion"?
 

And the reason I didn't state why I think that idea is idiotic is because it's fucking obvious why it's idiotic.
 

I come rather late to this thread and I see there has been a repeat of the recurring "what to do about Bart" question.

On the subject matter of the thread:-

"First past the post" elections were and still are the model for UK Parliamentary elections and it is well-known that they favour a two party system by squeezing smaller third parties whose candidates can be depicted as unelectable.

For those who have an interest in the subject and would like to review research and progress in other countries, may I commend the web site of The Electoral Reform Society which has been campaigning since 1884 for a fairer electoral system in the UK.

Like the Society, I believe that the Single Transferable Vote system ("STV") is a fairer and better system than first past the post with fewer disadvantages than the various alternatives.

But every bit as, if not more, urgent matters for reform could be postulated - the scandalous cost of US elections which means that many members of the House are effectively in permanent fundraising and electioneering mode - which seems inimical to good government, the deficient franchise for the Senate, favouring the rural voter against those of the cities, the farce of the electoral college and "winner takes all" in presidential electons.

I have suggested elsewhere that many perceived deficiencies result from the rather ramshackle state of the US constitutional settlement, its justice system and its judicial appointments system and all perhaps ought to be a subject for systematic reform. I would like to see the coming Obama Administration devoting some resources to such a process. That might be fitting for a former teacher of constitutional law.

It is always difficult to reconcile competing interests - as the UK experience with House of Lords reform shows only too well - so reform requires very special leadership and it is just, just possible that your next President might be the sort of leader who could rise above party interests in the national interest - we shall see.

On the "what to do about Bart" issue:-

I think US academic lawyers (who have far greater influence on the US legal system than their UK counterparts do on ours) have in general been far too mealy mouthed in responding to challenges from the far right. I have often wondered about the extent to which the faculties have been infiltrated and influenced by the considerably more than 30 pieces of silver of the far right foundations.

I noticed a post by David Kopel on the Volokh Conspiracy yesterday (28 Dec) pushing a book by Stephen Hallbrook on the 2nd Amendment in which Kopel writes:

"now that originalism is becoming the leading method of constitutional interpretation, the book provides an outstanding template for examination of the range of sources which indicate the original public meaning of a constitutional provision"

If, heaven forfend, Kopel is right and this heterodox method of constitutional interpretation is indeed now in the ascendancy, it can safely be said that one of the objectives of the far right has been accomplished and the protections Americans can expect from the Bill of Rights (the US 1789 version improving on the English 1689 original) have been seriously emasculated. It will also mean that the US legal system will have departed the common law consensus on the proper manner of constitutional interpretation.

The USA already has a criminal justice system that is unmatched by any "western" system for its savagery, as witness the company it keeps in relation to capital punishment (China, Iran, Saudi Arabia and Pakistan); as witness the relative incarceration statistics; as witness the conditions of incarceration in many states.

In many respects the civil justice system is nothing to write home about either. In particular, the limitations on judicial review of executive action have been shown up in the so-called "war on terror".

Because the USA is the most powerful nation in the world, it has enormous influence for good or evil in the affairs of the whole planet. Therefore many issues on this blog do not just concern the USA, but the whole world. The tendency of the US Courts to hold that "citizens" have rights which "non-citizens" do not in circumstances where the English, Canadian or other common law tradition courts would hold that the rights in issue are those of any human being regardless of citizenship is a particularly worrying trend.

I understand that the founder of this blog is opposed to any form of censorship on this blog and that is laudable. It may be inconvenient, but freedom of speech within the law always is.

But the views of the neofascist right - which LSR Bart systematically parrots - should not go unchallenged and while I agree that some of us (me included) may sometimes over-react to some post we may consider particularly obnoxious or fallacious, I do not subscribe to the proposition that instead of censoring Bart, those who disagree with his views should engage in some kind of voluntary self-censorship just to keep the threads tidy and relevant.
 

Mourad: On the "what to do about Bart" issue, your warnings that we be vigilant against the neofascist right are well taken, but are they necessary with respect to this blog? My sense is that to spend our time replying to Bart on this blog will consist almost solely of preaching to the choir, with few readers other than Bart needing to hear our replies (and Bart, at least, being impervious to them).

Meanwhile, the purpose of refusing to reply to Bart is not "just to keep the threads tidy and relevant," but to engage in fruitful discourse.
 

Henry:

I do not suggest for a moment that it is desirable to respond to every piece of drivel that LSR Bart posts.

For example, I did not think it was worth responding to some of his cheap shots on this thread.

But there are assertions Bart makes which do require a response.
 

Henry, if you can ignore Bart, you should have no problem ignoring the people who choose to confront him.
 

Mourad --

Thanks for you usual well researched, well thought out post. I don't think it's true that "originalism is becoming the leading method of constitutional interpretation," indeed I think Heller was its high water mark.

It's rare that we have to determine the meaning of the constitution on a relatively clean slate, just as it's rare that we have an uninterpreted section of the original Securities Acts, but when we do, we are attempting to discern legislative (or ur-legislative) intent, using the usual tools: plain meaning of the text, legislative history, remedial purpose, then-contemporary understandings of the state of the law, etc.

Originalism in the sense that the constitution means no more and no less than what it meant at the time of its promulgation is entirely unachievable in a legal system that works on individual cases and mostly respects stare decisis. Lacunae and conflicts are the inevitable outcome of an imperfect legislative process, and it is always in the interest of one side or the other to invoke them. Scalia implicitly admits this when he refuses to overturn longstanding precedent on originalist grounds. Neither the authors of the First Amendment nor the Twenty-First Amendment gave any thought at all to their consequences for nude dancing in bars.

"Originalism" has in many ways become like "strict construction," merely a stick with which to beat the Warren Court. That Court relied on the commerce clause and necessary and proper clause, along with the Reconstuction Amendments to promote a strong federal government. The Reaganoid counterrevolutionaries relied on the 11th Amendment and the Redemptionist courts of Hans v. Louisiana, the Civil Rights cases and the Slaughterhouse cases for their anti-federal decisions through Seminole Tribe. Can either side in this debate be considered unoriginal when the tension between strong federal government and state sovereignty has been a feature of our polity ever since independence?
 

The hypocrisies here are rich...

1) I support freedom of speech, but will no one rid me of this meddlesome conservative?

2) I support democracy, but unelected judges rather than elected Presidents and Congresses should establish policy by rewriting the Constitution.

3) I think that the US criminal justice system is "unmatched by any "western" system for its savagery," but the President should be allowed to withdraw a pardon to free an imprisoned man because the full formalities have not been observed. :::sniff:::

4) I believe in the rule of law, but the Courts really should abandon that "heterodox" textualism and ignore the law in the name of "reform."

Amazing.
 

1) I support freedom of speech, but will no one rid me of this meddlesome conservative?

You have your own blog where you can freely spew all the nonsense you want.
 

And until you stop blocking posts on your blog, you're really not in a position to whine about people wanting to kick your sorry fascist ass out of here.
 

Bart writes:
What exactly is it with Minnesota anyway?

First they elect a professional wrestler as Governor, now very likely a buffoonish tax dodging second rate comedian for Senator.

...

Later on spews various defences and additional insults


This supports my theory that Bart is actually a social experiment rather than a real person, as he never fails to lower the bar of any given discussion.
 

This comment has been removed by the author.
 

Shag:

My post concerning Mr. Franken was accurate, with well earned derogation.

You are of course free to make the case as to why Mr. Franken is at all qualified to be a United States Senator apart from the fact that he has a little "d" following his name on the ballot.
 

Bot writes:
My post concerning Mr. Franken was accurate, with well earned derogation.


No it wasn't. It was just another insult.
 

No person shall be a Senator who shall not have attained to the age of thirty years

Check.

...and been nine years a citizen of the United States...

Check.

and who shall not, when elected, be an inhabitant of that state for which he shall be chosen.

Check.

It would seem that if a person meets those requirements, they are qualified by dint of election, regardless of what an outsider might think of their character or resume.

Are they the people's choice? Not necessarily, as Sandy points out, and I would support a transition to an alternative transferrable vote system, even though I also agree with the qualifications made above by ethanol.
 

Which of the following is more delusional?

1. to believe, as Bart does, that he has something worthwhile to say on virtually every blog entry,
2. that he is always right (anybody ever see him admit any error?)
3. that his every comment deserves a rebuttal, or
4. that he will go away if he is ignored?

(I'd hate to see Bart banned, as he's often -- and invariably unintenionally -- hilarious.)
 

Mr. DePalma



The hypocrisies here are rich...

1) I support freedom of speech, but will no one rid me of this meddlesome conservative?


No one wants to get rid of you because you are a conservative, they are pondering what to do with you because of your long history of bad faith, dishonest and deceptive discourse, and refusal to be corrected.


2) I support democracy, but unelected judges rather than elected Presidents and Congresses should establish policy by rewriting the Constitution.

This is tired and old. Our republic establishes unelected judges with a role in government. "rewriting the Constitution" is meaningless rhetoric, since when conservatives do the same thing, you ignore it.


3) I think that the US criminal justice system is "unmatched by any "western" system for its savagery," but the President should be allowed to withdraw a pardon to free an imprisoned man because the full formalities have not been observed. :::sniff:::

Actually, (in an act unlike anything you would ever do) I find you to make an excellent point regarding the liberty interest in a pardon. The principle question in that discussion seems to be when the interest should be considered to vest. If Congress were to pass a bill giving me $100,000, but the President vetoes it, I think you would agree I did not have a vested interest in that money that would make the denial actionable. So at what point does the pardon interest become irrevokable? Because the Constitution is vague, and gives us no procedure, it is a difficult question. Mourad argues there has to be some set of formalities, so true assent by the executive can be proven in an action to establish a vested right. Where would you set the line, and what would your standard for enforcebility be? Would it be when the President announces it, when a aide confirms the pardon to the requestor's attorney, on delivery, etc.? It isn't as easy a question as you make it out to be.


4) I believe in the rule of law, but the Courts really should abandon that "heterodox" textualism and ignore the law in the name of "reform."

Again, purely argumentative and derogatory, without any basis. We have shown you to ignore the law on countless occasions when you want to achieve some kind of policy. The only mention of reform I can see on this thread is from Mourad, who seems to want the Obama administration to pass reform on elections, which in no way seems to involve ignoring the law.

Amazing.

Too true.
 

R.Friedman: I sincerely hope you are right in your assessment of the impact of the originalists. I am less than sure you are right.

I have no problem with the standard methods of judicial interpretation of statutes as cited by you. The problem comes with the approach to constitutional guarantees.

The common law consensus is set out admirably in these two paragraphs of a UK Privy Council decision: Reyes v. R (Belize) [2002] UKPC 11, [2002] 2 WLR 1034, 12 BHRC 219, [2002] 2 AC 235

"The approach to interpretation
=====================
25. In a modern liberal democracy it is ordinarily the task of the democratically elected legislature to decide what conduct should be treated as criminal, so as to attract penal consequences, and to decide what kind and measure of punishment such conduct should attract or be liable to attract. The prevention of crime, often very serious crime, is a matter of acute concern in many countries around the world, and prescribing the bounds of punishment is an important task of those elected to represent the people. The ordinary task of the courts is to give full and fair effect to the penal laws which the legislature has enacted. This is sometimes described as deference shown by the courts to the will of the democratically-elected legislature. But it is perhaps more aptly described as the basic constitutional duty of the courts which, in relation to enacted law, is to interpret and apply it.

26. When (as here) an enacted law is said to be incompatible with a right protected by a constitution, the court’s duty remains one of interpretation. If there is an issue (as here there is not) about the meaning of the enacted law, the court must first resolve that issue. Having done so it must interpret the constitution to decide whether the enacted law is incompatible or not. Decided cases around the world have given valuable guidance on the proper approach of the courts to the task of constitutional interpretation: see, among many other cases, Weems v United States (1909) 217 US 349 at 373; Trop v Dulles (1958) 356 US 86 at 100-101; Minister of Home Affairs v Fisher [1980] AC 319 at 328; Union of Campement Site Owners and Lessees v Government of Mauritius [1984] MR 100 at 107; Attorney-General of The Gambia v Momodou Jobe [1984] AC 689 at 700-701; R v Big M Drug Mart Ltd [1985] 1 SCR 295 at 331; State v Zuma 1995 (2) SA 642; State v Makwanyane 1995 (3) SA 391; Matadeen v Pointu [1999] 1 AC 98 at 108. It is unnecessary to cite these authorities at length because the principles are clear. As in the case of any other instrument, the court must begin its task of constitutional interpretation by carefully considering the language used in the constitution. But it does not treat the language of the constitution as if it were found in a will or a deed or a charterparty. A generous and purposive interpretation is to be given to constitutional provisions protecting human rights. The court has no licence to read its own predilections and moral values into the constitution, but it is required to consider the substance of the fundamental right at issue and ensure contemporary protection of that right in the light of evolving standards of decency that mark the progress of a maturing society (see Trop v Dulles, above, at 101). In carrying out its task of constitutional interpretation the court is not concerned to evaluate and give effect to public opinion, for reasons given by Chaskalson P in State v Makwanyane, 1995 (3) SA 391, in para. 88:

“Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised, but this would be a return to parliamentary sovereignty, and a retreat from the new legal order established by the 1993 Constitution. By the same token the issue of the constitutionality of capital punishment cannot be referred to a referendum, in which a majority view would prevail over the wishes of any minority. The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society.”

Perhaps you would agree that it is the words in bold derived from Trop v Dulles from which the originalists seek to retreat.

I was struck by Justice Scalia's cheerful admission in a Millenium Lecture at the Middle Temple in his capacity of an Honorary Master:

" "The principal controversy in current American constitutional theory can be described as a disagreement over what sort of common law courts we should be when we interpret and apply [the broadly based guarantees of our Bill of Rights]. Those such as I, who go by the unexciting name originalists, believe that those terms embody - and set out as a constitutionally required minimum - the actual practices of the society in 1791, when the Bill of Rights was adopted."

I adopt the view of the late Justice William J. Brennan:-

“In its most doctrinaire incarnation, this view demands that Justices discern exactly what the Framers thought about the question under consideration and simply follow that intention in resolving the case before them. It is a view that feigns self-effacing deference to the specific judgments of those who forged our original social compact. But in truth it is little more than arrogance cloaked as humility.

It is arrogant to pretend that from our vantage point we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions. All too often, sources of potential enlightenment such as records of the ratification debates provide sparse or ambiguous evidence of the original intention. Typically, all that can be gleaned is that the Framers themselves did not agree about the application or meaning of particular constitutional provisions, and hid their differences in cloaks of generality. Indeed, it is far from clear whose intention is relevant—that of the drafters, the congressional disputants, or the ratifiers in the states?—or even whether the idea of original intention is a coherent way of thinking about a jointly drafted document drawing its authority from a general assent of the states. And apart from the problematic nature of the sources, our distance of two centuries cannot but work as a prism refracting all we perceive."

as well as that of some Canadian Judges reported by Binnie J of the Supreme Court of Canada as reported by Mr Justice Kirby of Australia:-

"It was in the context of defending the Canadian approach to that task", said Mr Justice Kirby "that Binnie J let slip the opinion (which he suggested was held by some Canadian judges) that the approach of their counterparts in the United States could only be explained by appreciating that Americans were engaged in a ritual of ancestor worship"

nerpzillicus: I'd suggest a broader reform agenda than just constitutional reform. Given that there is never a "right" time for reform, what I thought would be a start would be the establishment of something like a deputy secretary for constitutional and legal reform within the Department of Justice to set in motion a systematic approach to reform issues.

LSR Bart professes "amazement" at some of the comments on this thread. Since "amazement " is synonymous with "astonishment", I can only repeat that in my experience, this is an expression which should be used with a degree of caution, since astonishment is very often the precursor of enlightenment.

In a discussion on alternatives to first past the post elections, our pet loathsome spotted reptile choses to speak in derogatory terms of one of the candidates no doubt intending to provoke a reaction and now he whines - it all smacks a little of: "Cet animal est très méchant. Quand on l'attaque, il se défend."
 

Before this thread was hijacked -- not just just by and about "Bart" but more generally to talk about the relative merits of Franken, Coleman, Ventura, et. al. -- several people expressed reservations about Prof. Levinson's proposal. That would have been a far more valuable discussion.

The alternative vote (in the U.S. most people call it instant runoff voting or ranked choice voting) isn't perfect. But it is better than the other methods available for executive branch elections and single member districts. Even so, when the discussion is about legislative elections, instant runoff is a baby step compared with getting rid of winner-take-all entirely in favor of proportional representation.
 

Bart said:

This would have given Gore a chance to get Nader voters and Bush a chance to get the religious conservatives who stayed home on the last minute DUI smear to the polls.

Smear? You mean it wasn’t true? Why then, did Bush admit to it?

If Bush hadn’t lied about it earlier, it could not have come out just before the election.
 

I think Professor Levinson's point that the winner, whomever it may end up being once the dust settles, won't have a majority resumes that a winner needs a majority in a democracy. That's not always possible, and in this case, another election might very well again yield a winner with no majority, as long as there are more than two candidates.
 

I value the friend who for me finds time on his calendar, but I cherish the friend who for me does not consult his calendar.
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