an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Procedures matter!!! And the New York Times misleads its readers
The New York Times reports, in a story headlined "Connecticut Budget is Upended as State Workers Reject Deal," on the "rejection" by Connecticut's public employee labor unions of a deal crafted by the Democratic governor that would have, he says, avoided the necessity to lay off 7500 public employees (and throw the state into a renewed recession). So why do I have scare quotes around the word "rejection"? The answer is simple, although one has to go deeply into the story to discover this absolutely vital information:
But the rejection reflected a complicated whirl of factors, not least of them the approval process itself, in which about 60 percent of workers voted in favor of the agreement only to have it fail.
Under longstanding collective bargaining rules, the agreement needed to be approved by 14 of the 15 unions in the State Employees Bargaining Agent Coalition, with the bargaining units voting in favor representing 80 percent of the 45,000 state workers covered by the deal.
What doomed the package was its rejection by two unions —including, notably, the American Federation of State, County and Municipal Employees Council 4, which covers about one-third of all unionized state employees.
What's also interesting, though one has to read one of the "comments" to Peter Applebone's story to discover the information amind the host of other comments denouncing the labor unions, is that this odd procedure is the result of "a system imposed by [Republican Governor Lowell] Weicker in the 90's during his income tax crusade in which the unions representing state employees had to agree to bargain as a group (through SEBAC, the State Employees Bargaining Coalition) on medical and retirement components of their contracts."
This is like saying "country rejects the ERA," whereas the correct story is that because of our indefensible amendment procedures set out by Article V, it really doesn't matter if a majority of the population in a majority of the states supports an amendment; it still goes down. Or, of course, the various headlines about "Senate rejects...." even though a majority of the senators representing a majority of the population have voted in favor of the proposition (including the nominee for office, see, e.g., Goodwin Liu).
This is basically a terrible job of reporting and headlining by the "paper of record," insofar as it only adds to the venemous hatred of public employee unions, a majority of whose members in fact supported the deal that was made. Anyone who is critical of the public employees in this case is simply being dishonest, for the criticism should be directed at the procedures that gave the minority of dissenting public employees a veto over the deal. (For all I know, there were good reasons to reject the deal, but that's obviously not the point. Rather, this is just another example of how truly undemocratic so many features of American government are.) Posted
by Sandy Levinson [link]
Since the rules are largely unknown by the general public, I agree the headline was misleading.
But, the public is more aware that in various cases, a body "rejects" something even if a majority agrees. So, a jury "rejects" a guilty verdict even if one juror is the only holdout. Five friends can "reject" seeing a movie, if they settle such things by consensus, and only three want to see it.
The "defensibility" of the procedures must be examined in each case. Though I disagree with Prof. Levinson on the merits in various cases, he is correct to be concerned with ignorance of the assumptions involved.
Joe, as usual, makes a good point: Most people are fully aware that it takes unanimity (in the federal and most state systems) to convict in a criminal trial. That being said, it also takes unanimity to acquit. A hung jury provides the basis for a new trial, should the prosecution want it. I take it that both of us agree that almost no one in the entire US, save for very savvy Connecticut political buffs, know of the peculiar process in Connecticut for ratification of deals with public employees.
" ... because of our indefensible amendment procedures set out by Article V, ... "
I recently attended a Bicentennial Commemoration of Wendell Phillips. Prof. Paul Finkelman in his presentation related Phillips' views of the provisions in the Constitution that made it proslavery. Prof. Finkelman then pointed to certain provisions that Phillips had not referenced, in particular that the mathematics of the Article V amendment process provided the slave states assurance that no amendment could be adopted without their approval to interfere with slavery. So it might be said that Article V is a remnant of slavery.
This is like saying "country rejects the ERA," whereas the correct story is that because of our indefensible amendment procedures set out by Article V, it really doesn't matter if a majority of the population in a majority of the states supports an amendment; it still goes down
Sandy, if you do not believe in a requirement for supermajority approval of the Constitution, why have a constitutional basic law in the first instance when it is no different from majoritarian national legislation?
Perhaps Sandy can respond to our yodeler with his proposal for an Article V governing amendments. It need not be merely a "... majoritarian national legislation ... " by including an involvement of the states, whether majoritarian, super-majoritarian, or some place in between. There would have to be a balancing between majority rule and minority rights to avoid tyranny of either the majority or the minority. Alas, it's not easy.
With regard to Mr. DePalma's question, one can defend an amendment procedure more difficult than passing ordinary legislation without defending Article V, which establishes the US Constitution as the most difficult constitution on the planet to amend. It is instructive, for example, to compare the US Constitution with the 50 state constitutions, all of which are easier to amend (some very easy, some not so easy, but all easier than the US Constituiton). That is what is indefensible. If Mr. DePalma loves the US Constitution so much, would he favor amending the Colorado Constitution and all other state constitutions to make it equal in difficulty to amend. (Though I dare say it would be unconstitutional to give each county, say, an equal voice and thus require that 3/4 of Colorado's counties endorse a given amendment.)
MY's comments make Silver's article weaker than it already is. Cuomo is praised for getting support of a few Republicans, e.g., but on DADT, Obama did just that. Comments at the NYT article underline various flaws.
And, as to the 60 vote rule, the NY Senate Leader didn't HAVE to bring the matter up to vote either. Even if a majority supported the measure. NY is criticized as a place where "three men in a room" have a lot of power, that is leadership in each legislature and the governor.
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