Balkinization  

Sunday, January 15, 2017

So what would it take to think about constitutional revision?

Sandy Levinson

It is a commonplace among constitutional design buffs that, with some interesting exceptions, significant constitutional change usually takes place against the background of catastrophes or, at least, train wrecks.  The paradigm cases for the former are Germany and Japan, though the spate of constitution drafting following the dissolution of the Soviet Union or the end of apartheid in South Africa can also be cited for the general proposition.  And, indeed, one could cite the so-called Reconstruction Amendments as well, for they were clearly responses to the carnage of secession and civil war (and, of course, if one is an Ackermanian, the Fourteenth Amendment especially is hard to square with any conventional theory of Article V amendment).  If, on the other hand, things seem to be going reasonably well, then why think of constitutional reform?  The fact that things are going well is taken as evidence--violating the correlation is not causation dictum--that the constitution in question is really working wonderfully, or that, at least, is isn't sufficiently broken to need any fixing. So let sleeping dogs lie, etc.

So where are we right now in the US?  My own view, argued over past six months, and not only since the "election" of the sociopath, is that we are in the most serious political crisis since 1860.  I think that each day demonstrates more and more the psychological divide in the country at large in which we increasingly view Others as the Schmittian enemies who must be defeated at almost any cost.  I am not at all immune from that, given my own views of the sociopath and the truly deplorable people who constitute a significant part of his base and, more to the point, those he is bringing into the White House itself, beginning with Steve Bannon.  But that is not the point of this posting.  Rather, since I continue to think that it is the Constitution itself that helps to explain our deplorable situation, I continue to want a new constitutional convention (believe it or not).

The most common response, other than that I'm crazy, is that the country is just too divided to make a convention other than a nightmare.  I.e., it is precisely because we are close to/in a train wreck that we shouldn't even think of such a thing.  But, of course, when I first started suggesting the desirability of a convention some years ago, the response then was that the country was in fine shape and that only an academic airhead could think that the Constitution needed any deep scrutiny and changes.  These arguments are obviously in tension with one another.  I find myself thinking of Tom Friedman's analysis of Israel's position vis-a-vis serious negotiations with Palestinians.  Either Israel claims to be facing serious terrorist threats and can't be expected to negotiate under such pressures or things are going so well that Israel feels no pressure to negotiate.  In any event, the status quo continues ad infinitum, to the detriment of both Palestinians and anyone who cares about maintaining an Israel worthy or respect and admiration.  So it seems to be with the Constitution.  There never is an apt time for a convention (other than the summer of 1787) either because the times are too fraught (like now) or things are going too well.

Let's start with low-hanging fruit:  Why isn't there a national movement, beginning yesterday, to get rid of the indefensible electoral college?  Why should this vestige of slavery, with its perverse incentives to engage in local vote suppression (amply vindicated in Wisconsin), last one more election cycle?  But we might also have a debate about the necessity of repealing the 1842 act that requires single-member districts in the House, which accounts for much of the degradation of that venerable body. In theory, all that is required is a new statute, but, of course, one cannot expect the beneficiaries of the single-member district process to get rid of it.  Remember Roche's dictum:  Power corrupts, and the prospect of losing power corrupts absolutely.  And, alas, we can't engage in California-style initiative and referendum to repeal the act and replace it with multi-member districts elected via some form of proportional representation.  This means that only a convention could do it. And so on.

I agree, incidentally, that things can get worse.  Perhaps we really will  drift into a more genuine civil war, provoked by bloodshed attached to Trump's desire to crack down hard on any and all undocumented aliens and their families.  Or perhaps some of his own base will start rioting when they realize they're going to lose their medical coverage thanks to Paul Ryan and his merry ban of Randians.  Or the sociopath will blunder into war with Iran or provoke a depression by repudiating the national debt, since only suckers ever pay all their debts (certainly the sociopath did not).

The central question remains whether we as a public are capable of any kind of genuine "reflection and choice" about how we are to be governed or whether we really are condemned to be the passive objects of whatever the political winds bring us.  I fear the latter is the case, not least because we don't trust one another sufficiently to risk the kind of national dialogue that a convention would require.  So will our experiment in a Republican Form of Government end in a bang or a whimper?
We'll begin finding out after Friday.

Comments:

Another reason not to have a convention is that the Republicans might win; they fight harder and dirtier, after all. We could come out of it with a Second Amendment that allows no exceptions, a ban on abortion, no Fourth Amendment, no Eighth Amendment--you get the idea.
 

The real question, both after next Friday, and when Republicans move to amend the Constitution, is whether the Democratic party can accept that they lost, (That it's legitimate for them to lose!) and go forward based on that understanding. Or whether lawsuits, and death threats against electors, (And torture live on FB!) will seamlessly transition into riots and assassination attempts.

I'm not hopeful, watching a sensible man like you descend into full blown TDS. I suspect the left is going to start a civil war, and then the right will end it.
 

A Convention is unlikely, if for no other reason than that people won't agree on how to structure it. That is, should representation be proportional to population? Do we vote by states or by Delegates? Can we limit the subjects of discussion? Would ratification be bound by Art. V? etc.

I'd note that it's not just disaster which allows for new Constitutions, it's the ability to impose them. Voters in Japan and Germany didn't get much say in their shiny new toys. Even in the US in 1788-9, success depended in part on the deference given by "lower classes" to their "superiors" such as Washington. Well, that and depriving women and blacks of any say in the process. I doubt anyone thinks a Convention would have been successful back then if John Adams had "remembered the ladies".

There may come a time when a Convention, or some form of revision, becomes possible; until then we need to consider work-arounds. An easy (well, as these things go) one is to expand the size of the House. It's unquestionably Constitutional and can be accomplished by statute. Increasing the size of the House to, say, 657 (the size of Parliament) would reduce the over-representation of, say, WY compared to TX not just in the House, but in the EC as well. From that point, with a much more representative government, the actual "permanent and aggregate interests" of the nation might be put into effect. Note that this would also go a good ways toward resolving WY's over-representation in the EC.

Other structural reforms might also be accomplished via statute: a national voting rights act; a national re-districting commission to prevent gerrymandering; alternatively multi-district House races as you suggest.

As you yourself have pointed out many times, the great disputes over "Constitutional" questions rarely involve the hard-wired parts. That means that disputes over implementation are the key disputes. Those are the kinds of disputes which can be accommodated by ordinary politics if the government is reasonably representative. Since it isn't now, I think we need to try to move in that direction before taking a big leap to a Convention. Baby steps first.
 

SL has been promoting this idea for years but my basic concern from a few years ago on this blog is not that things were simply "fine" but some form of the Mark Field's comment -- practicality, concern for results and the belief the current system allows for changes ... and if those changes didn't come, not sure how the change of Constitution would (being harder). Plus, some of the details proposed, such by some sort of system where constitutional delegates are chose by lot or whatever seemed impracticable. I am not disagreeing there are some basic problems to fix. OTOH, less, to be blunt, given those in power now, would you actually like the result of a constitutional convention?

It's basic -- Jefferson said this in the Declaration of Independence -- for people not to want to make basic changes of how things are. We accept certain things as givens. And, then there is the fear of change. The idea TRUMP is an appropriate choice (especially with a Republican Congress) doesn't quash such fears. The country is also greatly divided and you need some united (at least as Mark Field notes among those with power) acceptance of change to support a new government.

In bare numbers, you are getting close to that if you head count states controlled by Republicans, but even there, there is some division and we are talking many people who are conservative. That would suggest hesitance to change. Plus, if they have power, why would they want to change things ala Mark Field's House expansion? But, if we do change, I would change in baby steps not via a constitutional convention that I don't think we are ready for now for various reasons anyhow.
 

My position for some time now has been that constitutional change, whether by convention or amendment comes about only after a substantive change in the government or the society in which it exists. Trying to change the government or the society by amendment fails, as the examples of the 14th, 15th and the prohibition amendment demonstrate. The focus, then, has to be on making changes in society or the government that can eventually be ratified by constitutional amendment. Changing the number of representatives in the House or rationalizing the process of drawing voting districts might be such changes.
G Y Larsen
 

My position for some time now has been that constitutional change, whether by convention or amendment comes about only after a substantive change in the government or the society in which it exists. Trying to change the government or the society by amendment fails, as the examples of the 14th, 15th and the prohibition amendment demonstrate. The focus, then, has to be on making changes in society or the government that can eventually be ratified by constitutional amendment. Changing the number of representatives in the House or rationalizing the process of drawing voting districts might be such changes.
G Y Larsen
 

The three amendments cited were results of major changes in society but in various ways (the 14A has certain aspects that did stick immediately) society wasn't ready for the complete fulfillment of them. The Prohibition was an overreach; the others were loaded weapons for when society caught up. There have been changes in society that aren't fully reflected in our Constitution. Like society probably is ready for someone not a natural born citizen to be President. An amendment that formalizes that would not be too much. The proposal of course is much broader than that.
 

Mark, quite apart from any question of merits, your proposals demonstrate a certain unreality that plagues discussions of this sort on the left, of late anyway.

A reminder: Republicans now control 67 of 98 state legislative chambers. In 32 states, Republicans control both chambers.

The contrasting numbers for Democrats are 31, and 13.

It takes 34 states to call a constitutional convention. Republicans are two states away from that magic number, and could reach it by persuading just a handful of Democratic state legislators, in states where Trump did well, to agree to it. Once such a convention was called, Republicans would be in almost total control of it.

Ratification, of course, takes 38 states, but could still be managed with a relatively small number of Democratic defections.

Further, Republicans are a Congressional majority, and their Senate majority seems likely to expand in 2018, while there is little prospect of Democrats taking the House.

What all this adds up to is that, for at least the next two years, and probably the next four, Democrats are not in charge of the agenda. Even your proposed baby steps will have to wait until you've improved your position, they're going nowhere for now.

Worse, from your perspective, is that in the mean time Republicans are largely free to make legal and policy changes which will substantially handicap your efforts to improve your position. The portion of HAVA which demands that voter rolls be purged is now going to actually be enforced, for instance. The Justice department is going to start showing an interest in who was paying for all those riots last year.

I don't think the left have, as yet, come to grips with just how much ground you've lost over the last 8 years, or how hard and long a slog it is going to be for you to get back to even being relevant, let alone in charge.
 

Has G. Y. Lawson done an analysis of the amendments other than " as the examples of the 14th, 15th and the prohibition amendment demonstrate" to support his hypothesis that:

"The focus, then, has to be on making changes in society or the government that can eventually be ratified by constitutional amendment."?

The package of the first 10 As were ratified only two years following the ratification of the 1787 Constitution. What were the changes that took place in that short period of time?

Also, Lawson does not specify the 13th A, with respect to which a significant portion of society disagreed, as witness much of the alleged failings of the 14th and 15th As that were followed by Jim Crow laws. Changes in society brought about, eventually, the Women's Suffrage A, but society has not been been able to push through the proposed ERA A. Changes in society can take many decades but still be ineffective even when governments change. And society can be fickle, including in a pseudo-populist way (e.g., when the winner of the EC loses the popular vote by almost 3 million). Can a change in government trump society?
 

In bare numbers, you are getting close to that if you head count states controlled by Republicans, but even there, there is some division and we are talking many people who are conservative. That would suggest hesitance to change. Plus, if they have power, why would they want to change things ala Mark Field's House expansion?

Let's take an example to show how a rural, mostly (but not entirely) R state might see House expansion as in its interest.* Compare WY to MT. It's a perfect comparison because they're adjacent states with essentially similar characteristics.

As of 2016, WY has 585,000 people. MT has 1,042,000, nearly double. Despite that disparity, both have just one Representative. The current US population is 323,000,000. Divided by 435, that means approximately 1 representative for every 742,000 people.** It's immediately obvious that WY is over-represented compared to MT: WY should have .79 representatives, MT should have 1.4.

If we increase the House to 657, that drops the average population for a House district down to 491,000. Now WY still gets one representative, but MT gets 2. That's as it should be given the relative populations of the 2 states -- MT has 64% of the combined population and would now have 67% of the combined House Members. In the EC under the new system, MT would have 57% of the combined EC votes, where it has just 50% now.

There undoubtedly will be some resistance to the idea even among blue state Dems, though I think recent events may provide some, uh, clarity on that score. But it's not as simple as saying that "liberals will benefit, conservatives will lose". Even in CA, it's not clear how the new representatives would sort out between liberal areas and conservative ones. The key point is not the partisan distribution, but the fact that a larger House would better represent the nation's actual voters, both in Congress and in the EC.

*Putting aside for now that I think reducing the size of House districts would be generally popular.

**I'm simplifying the numbers a bit to keep the example simple.
 

Gerard N. Magliocca is working on a book on the Bill of Rights.

The Bill of Rights was an example of something already broadly accepted by society that was formally addressed in the Constitution. Society were somewhat split on what the various provisions meant and their understanding changed over time.

The language, however, along with a limited practice of judicial review at the time etc. handled that. I think there is charm to such open-ended language, including equal protection and other language that addressed what was covered in the ERA, without a broad narrowly phrased (like some amendment that targeted ONE type of punishment etc.) amendment of that sort. Thus, understanding of sexual equality continued to develop over the last 35 years.
 

This comment has been removed by the author.
 

"The key point is not the partisan distribution, but the fact that a larger House would better represent the nation's actual voters, both in Congress and in the EC."

I agree, which is why I said, "apart from any question of merits"; I was focused on who would be driving the agenda.

Assuming a convention takes place, there will be two general drivers of the agenda:

1. The institutional interests of states as opposed to the federal government. (I am assuming here that Congress will chose legislative rather than convention of the people organization, for reasons of Republican partisan interest.)

2. The interests of the party controlling most of the state delegations.

On the first score, it is patently obvious that your proposal would render most states essentially irrelevant so far as the electoral college was concerned. Do you think the 40 or so states that would cease to have any real say in who was elected President wouldn't notice this?

This is a path dependence issue; Once the balance between the states and the federal government has been redressed, so that states have less to fear from that government being controlled by a hostile party, amendments which would negatively impact the smaller states' representation might be more feasible.

To that end, the left ought to be more open to such amendments; They would clear the way to reforms such as PR which otherwise have no hope of being adopted because of their partisan impact.

Lower the stakes of federal elections, and a lot of reforms people are afraid to adopt become feasible.
 

A second Constitutional Convention might include a challenge to Joe's concluding:

"Thus, understanding of sexual equality continued to develop over the last 35 years."

Such a Convention could be expected to address various Court decisions that continue to rankle social conservatives. Meanings, understandings change over time. Significant segments of society disagree with such changes.
 

it is patently obvious that your proposal would render most states essentially irrelevant so far as the electoral college was concerned.

Let's use MT again as a comparison, this time to CA. Right now, the population ratio between the two is 38:1. In the current House, it's 53:1. After re-districting, it would be 40:1. In the EC right now, the current ratio is 18.33:1. After re-districting it would be 20.5:1. Maybe MT would conclude that the small decline in the EC makes the large gain in the House not worth it. But I suspect that might be a trade-off they would welcome.

Bear in mind that since the true ratio is 38:1, CA should have 152 Reps+Sens in order to balance out.
 

Just to add, since the increase in House size can be accomplished by statute, the actual attitude of MT may be irrelevant. But given the trade-offs they probably wouldn't be terribly upset.
 

There are a lot of reforms which could be accomplished by statue, which fairly reliably aren't going to be accomplished because they're contrary to the interests of existing members of Congress. This is right near the head of the list.

Currently the top 12 states comprise enough EC votes to dictate a Presidential election. Your proposal would reduce that, I estimate, to 9. While the increase in Representatives would benefit some states in the House, and hurt others, which states benefit changes from census to census, it's a quantization error matter, not disproportion. So very few states are going to see any reliably lasting benefit out of it.

The cost to the smaller states, however, is obvious, and lasting. This is clearly aimed at putting the EC on something close to a population basis, not addressing House representation. Not going to happen, barring the importance of federal elections declining radically.
 

The fact that 12 states could decide the EC does not mean that they do. Obviously, TX and CA vote on opposite sides. So do (most years) FL and NY. Etc.

Putting that aside, the actual purpose of my suggestion is to improve representation in the House. That's a claim that can hardly be disputed -- Washington made it in the Convention itself. The size of the House has been fixed for over 100 years. In 1910 the average size of a House district was roughly 212,000 (again, I simplified to make the example easier). Under my proposal, it would be more than double that, which is still too much but there are practical limits.

Changing the House will have carry-over effects to the EC, not all of which are predictable and none of which "harm" people living in smaller states. In any case, the structure of the Senate prevents a truly representative system there, as you can see from the numbers above.
 

The original text of the one original twelve amendments not ratified is a bit out of date but perhaps someone can tinker with it a tad to further Mark Field's proposal.

The 27A came in part thanks to a student paper. Perhaps, one of students of the contributors of this blog can help.
 

We could fix most of the problem by getting California and Texas to agree to be broken up into several states.

"and none of which "harm" people living in smaller states."

For eccentric values of "harm".
 

For eccentric values of "harm".

Yours is actually the eccentric definition. You seem to mean something like "maintain even in the face of perfectly legal statutes, that is, by force, an existing, albeit unjustifiable, unfair advantage".
 

Before discussing whether we need to change the Constitution, it would be useful to revisit why we even need a constitution. The primary purposes of a constitution are to order and limit the powers of government and to guarantee our liberties to enhance the public welfare. Constitutional government assumes government is a necessary evil which needs to be checked by a constitution. Therefore, when we discuss the proper provisions of the Constitution, we begin by identifying the ways in which government is harming the public welfare and then what powers to forbid the government in order to prevent those harms.

Our current progressive political economy is fundamentally dysfunctional, unsustainable and imposes a myriad of harms on the public welfare which are too many to discuss in one post. Every progressive nation in the OECD, including our own, is at some stage of population, labor, economic and fiscal implosion. We are fast approaching the systemic government failure which necessitated the first constitutional convention and remedying today's failure will take the same sort of comprehensive constitutional reform.

The question is how bad things will get before the Congress, or more likely the states, are compelled to act? During the 1780s, the government plunged the nation into a stagflationary depression, wiping out nearly a fifth of the American GDP and driving the people into armed insurrections, before the states called the first constitutional convention. Will we wait until things get that bad before revisiting our Constitution today?

As an aside, the "problem" of presidential candidates gaining a narrow plurality of the popular vote, but losing the electoral vote, is rather small in the scheme of things. Congress can easily and solve the problem by holding runoff elections between the two candidates with the most votes. Candidates with a majority of the popular vote have always won the electoral vote.

 

Mark Field said...A Convention is unlikely, if for no other reason than that people won't agree on how to structure it. That is, should representation be proportional to population? Do we vote by states or by Delegates? Can we limit the subjects of discussion? Would ratification be bound by Art. V? etc.

The system used in the first convention should work today.

The states calling the convention will send equal representation.

The convention ignored the limits of the Articles and set its own lowered threshold of states necessary to ratify the new constitution. Today's convention should do the same thing and lower the threshold to something like 30 states.
 

SPAM I AM!'s: closing obwervation:

"Candidates with a majority of the popular vote have always won the electoral vote."

of course is inapplicable to Trump's EC victory despite getting almost 3 million less popular votes than Hillary since no candidate got a majority of the popular vote. But it may be possible that in the future a candidate with a majority of the popular vote might not win the EC vote.



 

Some readers of Jack Balkin's post of Hamilton's letter to Bayard concerning Aaron Burr as subtle support for Sandy's seeking of a second Constitutional Convention. But those who have read the exchanges between Sandy and Jack post-Nov. 8th know differently. More likely this may have been presented as an early in American history unverified dossier to contrast with the recent "Golden Shower" unverified dossier.
 

"Do you think the 40 or so states that would cease to have any real say in who was elected President wouldn't notice this?"

Let's be clear, we're talking about geo-political units where not many actual people live. That's why they'd have practically little say.

"so that states have less to fear from that government being controlled by a hostile party"

Again, by this meant 'states where a minority of the population has to fear being controlled by the will of the majority of the nation residing in another state.

The GOP's problem is with the idea of consent of the governed as measured by majority rules. It favors rule by a majority of places, not persons.
 

BD: "Candidates with a majority of the popular vote have always won the electoral vote."

of course is inapplicable to Trump's EC victory despite getting almost 3 million less popular votes than Hillary since no candidate got a majority of the popular vote. But it may be possible that in the future a candidate with a majority of the popular vote might not win the EC vote.


My proposal for a runoff election between the two candidates with the most votes would have meant a showdown between Clinton and Trump with 4.48 million libertarian, 1.45 million green and 732k McMullan "independent" Republican voters freed up. Trump would likely have won both a narrow majority of the popular and maybe a heavier majority of the electoral vote. The Democrats grasping at the Clinton plurality for future hope keep ignoring all the GOP votes who went for Johnson and McMullan and provided rhe GOP House and state house majorities.
 

Mr. W: The GOP's problem is with the idea of consent of the governed as measured by majority rules. It favors rule by a majority of places, not persons.

Any electoral system where voters are divided geographically and elect their own representatives is rule by a majority of places.

This is the centuries old Anglo-American electoral system.


 

To follow up on Mr. W's point:

" It favors rule by a majority of places, not persons."

we are aware that some of the original 13 states were small in population as well as in size. What might a current chart depicting the growth in population of these small states to compare to the current large in area lowly populated states? Maybe such analyses have been done. Did the Founders prefer rural cowboys over urban cowboys? Here's a link to Wikipedia's "List of U.S. states by population density:

https://en.wikipedia.org/wiki/List_of_U.S._states_by_population_density

All sides can claim that size matters.
 

Here's an interesting article by Pattie & Johnston "Anglo-American electoral geography: the emergence of a sub-discipline" at:

http://www.persee.fr/doc/espos_0755-7809_2003_num_21_3_2096

to weigh in connection with SPAM I AM!'s response to Mr. W. Of course the geographical differences between the Anglo and the American are significant.
 

"Let's be clear, we're talking about geo-political units where not many actual people live. That's why they'd have practically little say.

...

Again, by this meant 'states where a minority of the population has to fear being controlled by the will of the majority of the nation residing in another state."

Let's be clear: We're talking about geo-political units that have just as big a vote in whether or not to amend the Constitution as California or Texas, so your distaste for the way our government is set up really doesn't over-ride the relevance of their opinions.
 

Shag: Of course the geographical differences between the Anglo and the American are significant.

The House of Representatives and their state counterparts are modeled after Parliament.

The Senate was meant, in part, to fulfill the temporizing function of the House of Lords.

The radical departure was an elected head of state replacing the king.
 

"
Let's be clear: We're talking about geo-political units that have just as big a vote in whether or not to amend the Constitution as California or Texas, so your distaste for the way our government is set up really doesn't over-ride the relevance of their opinions."

That is clearly how the system works. It's also clear it's a travesty in terms of any legitimacy it aims to bestow under democratic principles.
 

SPAM I AM!'s explanation on the Ango fails to reference the impact of America's slavery on the House (3/5ths clause) and the Senate not being subject to amendment w/o state consent) as well as other provisions of the Constitution protecting slavery. Yes, the elected head of state replaced the Ango King but the first, 3rd and a few others were slaveowners. But there were geographical size differences as between the Ango and the American. And the Civil War did not change the Senate even after the Reconstruction Amendments (except for direct vote).
 

Any electoral system where voters are divided geographically and elect their own representatives is rule by a majority of places."

Not so if the representation is tied to place lines which are tied strictly to population, which is an easy enough thing to do

"The Senate was meant, in part, to fulfill the temporizing function of the House of Lords."

You said it brother. It's about as democratic as the HOL.
 

One way to see the failings of the system is to make a slight change from places, regardless of population, having equal or disproportionate representation, to groups. Lani Guiner proposed something like this IIRC. So let's say that blacks, at 12% of the population get equal Senate representation as whites at 70%, Asians get the same, etc. there'll be an EC where each group gets a base amount of EC voted regardless of numbers.

Would any conservative say this is a fair system? And yet arguing that racial and ethnic groups have more salience than where one lives regarding an imaginary politico-geographic line is probably as easy to reconcile with democratic values.
 

BD: Any electoral system where voters are divided geographically and elect their own representatives is rule by a majority of places."

Mr. W: Not so if the representation is tied to place lines which are tied strictly to population, which is an easy enough thing to do


The House of Representatives has a geographical representation with proportional apportionment of voters. A majority of places, not a majority of voters, still rules the House. See 2012.

Mr. W: One way to see the failings of the system is to make a slight change from places, regardless of population, having equal or disproportionate representation, to groups. Lani Guiner proposed something like this IIRC. So let's say that blacks, at 12% of the population get equal Senate representation as whites at 70%, Asians get the same, etc. there'll be an EC where each group gets a base amount of EC voted regardless of numbers.

Your hypo of equal representation for each race is in no way analogous to our geography based representative democracy or the electoral college, which grants states electors based on population.

Try again.
 

"Your hypo of equal representation for each race is in no way analogous"

Both are systems that violate the basic democratic norm of majority rules. One is based on giving people in certain places disproportionate votes, the other people in certain racial/ethnic groups. You're right in one way though, they're different in that the latter is, given US and world history, a more defensible departure from democratic norms.

As to the House, sans gerrymandering it could result in the rule of the majority as well as just places.
 

"That is clearly how the system works. It's also clear it's a travesty in terms of any legitimacy it aims to bestow under democratic principles."

Lose a lot of sleep over Lichtenstein having as large a vote in the General Assembly as China, do you? Small sovereign states do not voluntarily agree to enter or remain in a federation that contains large states without such a setup.

Your complaint boils down to a desire to rule half of a diverse continent from two narrow strips along the coast. The urban left sees everywhere outside the cities as alien territory to be subjugated. Well, the people living in that territory don't desire to be subjugated by distant folk belonging to a very different culture, and, thanks to the structure of the Constitution, find that they don't have to submit.

I would suggest that the better solution is a restoration of federalism, and enough subsidarity at the state level, that neither side of this divide ends up ruling the other. But, if that can't be arranged, (Primarily because your side still expects to ultimately end up supreme.) I'll settle for my side's boot being on your side's throat, rather than your side's boot on mine.

Selfish, I'll grant you, but that may be the best we can hope for until your side abandons it's ambition to rule over all of us.
 

The UN is of course not very democratic at all, so it's (unintentionally of course) a great example for you to turn to.

"rule half of a diverse continent from two narrow strips along the coast."

Again, here's all the proof one needs, people like Brett think in terms of places, not people mattering. It's the bigness of the lands between and the smallness of the 'strips' that matter to him, the fact that more people vote in those strips is paid no mind.

Of course for Brett this is just current partisan posturing. If tomorrow he found federalism to obstruct what he desires, states/localities enacting gun control, affirmative action, sanctuary cities, etc., he'd be invoking national needs and will over the minority rule he now finds convenient to defend.
 

Our own Brettbart (the "unBreit") seem to be repackaging white supremacy principles as they keep themselves down on the farm.
 

It's not just posturing, it's projection. The people of the coasts (IL is on the coast? CO? NM?) don't want to "rule a diverse continent", they want the actual people of that diverse continent to rule themselves. The actual position of "rule others without right or reason" is that of those who want the minority to prevail, treating the citizens who happen to live in those coastal (sic) states as living in "alien territory to be subjugated".
 

Reference to the House of Lords leads me to think about all the changes over the years in respect to both bodies of the British Parliament, including reduction of the power of the House of Lords to block legislation. A court appeal held that there was the power, to cite a summary, "to remove the express limitation and then enact legislation extending the life of Parliament." https://en.wikipedia.org/wiki/Jackson_v_A-G

I think that would work regarding the equal suffrage requirement in Art. V. Or, we can just do what was done when various constitutional amendments needed unanimous support -- call the rule irrational and propose a Constitution that needed only a supermajority. I also support Mr. W's overall support for democracy, but realize there will be various compromises. So, if we take James Madison's support for a popularly apportioned Senate and insert it into our system, there won't be perfectly equal representation.

The Senate could still serve various purposes -- a second somewhat different group being represented, a smaller body with somewhat different rules and mores, a means of checking the other house in general, one with certain specific responsibilities (like advise and consent) that the other does not have.
 

Mr. W: Both are systems that violate the basic democratic norm of majority rule.

The Constitution designed our small "r" republican (not small "d" democratic) government for consensus supermajority (not minority) rule. Popular majorities generally rule the House, geographical majorities representing non-urban areas the Senate, and changing national majorities of both the presidency. In order to get anything done, all three elected bodies need to agree.

Again, here's all the proof one needs, people like Brett think in terms of places, not people mattering.

Our system seeks to represent ALL the people - urban, suburban and rural; east, west, north and south - and all the myriad interests included in our sprawling continental nation. Neither large cities or rural areas alone can rule.

The system you and Sandy seek would have a handful of blue cities impose their interests over the rest of the nation. This is exactly the recipe for the secession and civil wars which have ripped apart other great nations and empires over the millennia.
 

The system you and Sandy seek would have a handful of blue cities impose their interests over the rest of the nation. This is exactly the recipe for the secession and civil wars which have ripped apart other great nations and empires over the millennia.
# posted by Blogger Bart DePalma : 9:58 PM


Yeah, democracy is a real bitch, isn't it? Here's the thing, you fuckwit, the system that you want has the minority imposing their interests on the majority. I'm pretty sure that situation has caused far more wars than the majority imposing their interests on the minorities.
 

"Yeah, democracy is a real bitch, isn't it?"

Indeed, unmodified and unlimited, it is. As libertarians used to say, (I don't know if the newer "liberalitarians" still say it.) "Democracy is two wolves and a sheep deciding what to have for dinner."

From a really crude utilitarian standpoint, it could certainly be that having 51% of the people oppress 49% of the people is "better" than 49% oppressing 51%. By that standard, I suppose the US would be entitled to take over Canada and Mexico; We outnumber them, after all!

I'm not a utilitarian. I would personally rather that neither side be oppressing the other.

With some work and good will, we can construct a system with much less oppression. It's not going to be easy so long as the left still aspires to ruling over all from their urban centers, and so want to retain a system where people living in one place can lord it over people living in another. Our system purposefully makes major changes require supermajorities in the elective branches.

Well, as I said above, if somebody's boot heel must be on somebody's throat, I'd rather it be my side's on yours. And you're not going to get very far in persuading me that the situation ought rightfully be reversed.

But if you ever give up on wanting it to be your boot heel, and feel like walking like equals, I'm sure we can work something out.
 

Oddly enough, there's a system for equals to work things out: it's called "democracy". You ought to give it a try.
 

Mark, you basically ignored the entire content of what I said.

Democracy is only a system for equals to "work things out", if by "work things out" you mean decide who gets to lord it over whom. It's just a system for deciding who shall be the master, and who gets subjugated. It's not an alternative to subjugation.

If three people enter a room, and two of them decide to murder the third, and loot the body, that's democracy. Granted, two walking out instead of one is better, but if two people want to murder the third, and they all three live, isn't that better still, even if it isn't "democratic"?


 

bb: "Yeah, democracy is a real bitch, isn't it?"

As the Founders quickly discovered after the Revolution, unchecked simple majority democracy can be every bit a tyrannical as an absolute monarch or dictator. Under the Articles, state legislative majorities freely persecuted and looted electoral minorities. To ameliorate this inherent problem with representative democracy, the Founders set up a system of electoral checks and balances requiring a supermajority to exercise national government power.

Today, blue cities exercising unchecked simple majority democracy freely persecute and loot electoral minorities, who have been migrating to freer parts of the nation for decades. Why would we want to eliminate the national electoral checks and balances to allow an unchecked simple plurality in these same blue cities to persecute and loot the entire nation?


 

I ignored the context of what you said because it was silly. Nobody thinks democracy is merely an alternative form of tyranny. We do have safeguards in place against the threat posed by tyranny of the majority: the Bill of Rights; separation of powers; representative government; a written Constitution. The problem is that you're not even willing to let democracy function within those safeguards. Instead, you keep insisting that oligarchy -- that's what "rule by the minority" is called -- prevail.
 

BS. Plenty of people think that. You're just demonstrating the left's tendency to deny that anybody could really disagree with them. We just pretend to out of sheer contrariness.

Right, we do have safeguards in place. The safeguards aren't "democracy", they're limits on democracy. They're ways in which the system has been deliberately made undemocratic.

It's one of these undemocratic features, the Electoral college, put in place to keep the big states from democratically running roughshod over the smaller states, that you're railing against. You've proposed a method for, nominally, reducing the quantization error in House representation, which conspicuously, and primarily, has the effect of defeating the Electoral college's protection of smaller states.

We have other safeguards. Separation of powers. Enumerated powers doctrine. Strict interpretation of the extent of federal power. The left spent the 20th century systematically defeating those safeguards.

And now you're horrified that the right has picked up that terrifying weapon you've warped the federal government into being.

But not yet horrified enough to agree to cooperate in beating it back into a plowshare, because you still think it's going to end up in your own hands again, and so want to preserve it for that day, even if in the meanwhile it might be used against you.

Let me know when you've become sufficiently horrified to give up on those dreams of lording it over us again. Until then I've got precious little sympathy.
 

Brett speaks from his "heart" with this redundancy:

"From a really crude utilitarian standpoint, ...."

By the Bybee (no, I haven't forgotten what's rotten), while reading David Brooks' NYTimes column today on a religious history of carnivals and fools, I imagined our own Brettbart (the "unBreit") dancing like David (the biblical David, not Brooks) at the Inaugural Ball, the theme song for which should be "What Kind of Fool Am I?" performed, not, by the B Street Band.
 

Mark Field: Nobody thinks democracy is merely an alternative form of tyranny. We do have safeguards in place against the threat posed by tyranny of the majority: the Bill of Rights; separation of powers; representative government; a written Constitution.

The Founders did.

To start, our Republic's electoral checks and balances was the first of the safeguards against tyranny of the majority. The others you listed were meant to check supermajority rule.

Next, progressive courts largely gutted the other safeguards you listed in order to establish the progressive political economy. Our Republic's electoral checks and balances are arguably the last safeguard standing.


 

The safeguards aren't "democracy", they're limits on democracy. They're ways in which the system has been deliberately made undemocratic.

That's what I said. We don't disagree on this. I might rephrase it to say that these safeguards limit the abuses of "pure" democracy, but the basic idea is the same.

It's one of these undemocratic features, the Electoral college, put in place to keep the big states from democratically running roughshod over the smaller states

The EC was not put into place in order to safeguard the abuses of democracy. It was part of the deal -- a very sordid deal -- with slaveholders. I don't have to respect any such deal, and I don't.

And let's go back to the point I made before: my suggestion is perfectly legal and Constitutional. You don't like the idea because your sole aim is to keep your boot on our necks.

In any case, your own words betray you. You switched from "people" to "states" In a democracy, "states" are irrelevant. The federal government operates on individuals, not the corporate entities of "states". There's no such thing as "big states running roughshod over smaller states". There's only people, choosing among various options. Your objection is completely illegitimate both as a matter of the Constitutional structure and as a matter of democratic theory.

In your heart, you know this is true. Your ideas are unpopular. They have been rejected consistently by voters over the last 7 presidential elections. Your side can only "succeed" by cheating: suppressing voters; gerrymandering districts; dishonest legal opinions; corrupt deals with slaveholders. Even when proposals get made, like the ones I made above, which are perfectly legal, you throw a tantrum. You're resolved to ruin or to rule the state.


 

SPAM I AM!'s response to Mark includes this from his "Classic Comics" source of history:

"To start, our Republic's electoral checks and balances was the first of the safeguards against tyranny of the majority."

Alas, many of these checks and balances were to protect slavery and the minority of slaveowners. Imagine how tyrannical the outlawing of slavery would have been upon this minority by impacting that minority's tyranny over slaves.
 

"Our system seeks to represent ALL the people"

Just some more than others, based on where they happen to live.

"geographical majorities"

Are putting places over persons.

"national majorities of both the presidency"

Nope, national minorities seem to often win.

"a handful of blue cities"

Where a majority of the persons live. You hate democracy, we get it.

"and so want to retain a system where people living in one place can lord it over people living in another"

Bull. You want to lord it over others when it comes to affirmative action, gun control, sanctuary cities, etc.

"the system has been deliberately made undemocratic."

Now we're at least being honest, way to own your anti-democratic tendency.

"put in place to keep the big states from democratically running roughshod over the smaller states"

By 'big' remember, it means more people. Minority rules (but only in terms of places, not, say, racial or ethnic groups, no, no, that would be awful!).





 

It was part of the deal -- a very sordid deal -- with slaveholders. I don't have to respect any such deal, and I don't.

It wasn't just about that though the other reasons are dubious too, if somewhat less "sordid," especially factoring in modern conditions.

They have been rejected consistently by voters over the last 7 presidential elections.

Democrats have a special need to worry about how power in state governments shifted away from them in recent years. The reasons this occurred are mixed, and have unsavory aspects, but are somewhat different (there is overlap) than the national situation.
 

The "rural" party will always control more states than the "urban" party. That's just a function of the way cities aggregate population. I don't think the Dems need worry about those states per se.*

Obviously we need to make sure that the majorities in those states don't engage in tyranny of the majority. The only real way to do that is to use the courts and federal law as protective mechanisms. I think Dems could have done better on both scores, but Rs have blocked many of them, cheated and lied in order to block more, and then blamed the Dems because they're lacking.

*Dem policies benefit the people of those states already and we should continue most of those policies, while adding new ones.
 

" my suggestion is perfectly legal and Constitutional."

Perfectly legal and constitutional, and ain't gonna happen. Look back to my second comment: You're having trouble grasping the reality that you're not in charge of the agenda anymore. And the people in charge of the agenda, MY side of the political spectrum, have no reason to make changes designed to put you back in power.

Stop fantasizing about changes to laws to enable you to rule from the cities, because you're not in any position to implement them. You really should start on those baby steps, and the starting point is re-learning how to win elections outside cities.

It's all about that, you know. If Democrats hadn't largely given up on winning elections outside urban centers, seduced by the idea that you had enough votes in the cities that everywhere else didn't matter, you'd never have gotten into this pickle. Stop dreaming of finding ways to rule from the cities, and re-learn how to appeal to people who don't live in urban centers, and you'll fix all this WITHOUT legal changes.
 

"I don't think the Dems need worry about those states per se."

Population alone would favor Republicans given the number of thinly populated states, but it is partially a question of degree. Thus, it is harder to have an even split or more, as shown by electoral count numbers where twenty states or so is how many Democrats receive. But, when you get to the low teens and so forth, it's troubling.

Also, that's a rather dismissive statement if used too bluntly. The power of state legislatures to district, power over Medicaid expansion (which very well might continue, thanks PPACA, since even red states like it), the limits of the courts and national power etc. to restrain bad legislation (e.g., TRAP laws, lack of funding of basic services etc.) make worrying about those states important.

I'd toss in that think liberal advances help Republicans some in that their voters often don't like the breadth of their rhetoric but it hurts less since the floor is higher. This allows voters to support people for messaging reasons. See, e.g., abortion. At some point, you play with fire doing that.
 

I don't expect the current Congress to pass such a law. The Rs are too dishonest and power-mad a faction to act for the benefit of the nation. They could fix their problems without resort to illegal tactics by re-learning how to appeal to the actual majority of the country.

I have to say, though, that your claims about Dems winning elections are doubly ironic. First because you've spent most of this thread bad-mouthing democracy. And second because you keep ignoring the fact that the Dems have actually gotten millions more votes. Your views are unpopular, and rather than acknowledge that it is and try to work with the majority, your only response is to misrepresent those facts.
 

The power of state legislatures to district, power over Medicaid expansion (which very well might continue, thanks PPACA, since even red states like it), the limits of the courts and national power etc. to restrain bad legislation (e.g., TRAP laws, lack of funding of basic services etc.) make worrying about those states important.

These problems are self-created by the Rs, but there are ways to solve them if the other side would act in good faith (they won't). There are also ways to solve them without such cooperation, such as federalizing Medicaid, but of course we need the votes in Congress to match the majority we already have for the presidency.

Again: Dems absolutely should pass legislation to benefit people across the country. They already do, though less than I would like. But in the current climate they won't get credit for those accomplishments and they still won't win elections in predominantly rural states. That's a structural problem which we can't fix, even as we adopt policies to benefit those who don't vote for us.
 

A concern of mine was taking this comment too far:

"I don't think the Dems need worry about those states per se."

We do. Solutions are possible, but it will be a long hard fight to get them and even then states will retain an important place with a significant amount of discretion. And, until the fixes are in, states in particular will be important, such as districting.

Finally, degree matters. There is a structural problem. But, there is no compelling reason why Democrats cannot win at least a few more state legislatures, governor races or even one house in bicameral systems. Even five states here would significantly help balance things. A Democratic governor in places like LA and NC has or will matter a lot. The wins show it is possible. At times - like past days of racist populists - the winning coalition might have unsavory aspects.

Things for whatever reason have skewered in that respect, accepting Republicans will have a leg up for certain reasons, in recent years.
 

Mr. W: You hate democracy, we get it.

I value liberty.

Historically, republics were merely political economies which replaced absolute rulers with some form of elected legislature, but were often just as tyrannical. As expressed in a variety of founding documents, most prominently the Declaration of Independence, the Founders' objective was to create a new form of republic tasked with protecting individual freedom from government - a free republic. We need to keep this purpose in mind when examining every provision of the Constitution.

The separation of democratic power between localities, states and a combination of the two was not meant to facilitate slavery or to enable minorities to rule over majorities. This separation was meant to and was very successful at checking the small "d" democratic exercise of government power by requiring an effective supermajority consensus.

Progressives have been at war with this separation for roughly a century and a half because it made enacting and maintaining the progressive political economy and its various abridgments of individual freedom very difficult. Their initial solution was to bypass the separation by creating an absolute bureaucracy to impose most law by decree. Now, progressives wish to amend the constitution to eliminate the separation altogether to establish a tyranny by majority..
 

"They could fix their problems"

67 of 98 legislative chambers, majority in both houses of Congress, the White house. What problem are you suggesting they should fix?

I think they're going to fix some problems; Non-enforcement of HAVA's voter roll purge requirements, for instance. Serious enforcement of immigration laws. It's not, however, going to be your problems that they set out to fix.
 

A concern of mine was taking this comment too far

I added the footnote in an effort to avoid that concern, but maybe I should have said more. In any case, I agree. I'm just acknowledging the structural facts that (a) no party wins across the country; (b) even the most successful party will have areas where it's weaker; and therefore (c) we need to recognize the limits. But of course we need to contest states most heavily at the margins, and of course we need to run campaigns in all of them (I'm a fan of the 50 state strategy). And to the extent possible (that is, within the limits of obstruction by the Rs), we should continue to pass legislation to improve their economic lives and protect their individual and political rights.
 

Non-enforcement of HAVA's voter roll purge requirements, for instance

This perfectly exemplifies the flaws in oligarchy. Only a majority can consistently adopt policies which are in the "permanent and aggregate interests" of the nation. Oligarchies tend to focus on non-existent problems or on policies designed to prevent a voting system from operating properly or from adopting solutions to their corrupt rule.
 

"And to the extent possible (that is, within the limits of obstruction by the Rs), we should continue to pass legislation to improve their economic lives and protect their individual and political rights."

You still don't seem to have wrapped your head around the fact that Democrats are the legislative minority. If the minority can't get something passed, it's not "obstruction", it's just being the minority.

Republican Congress, Republican President. If things don't get passed, it will be Democrats obstructing.
 

"This perfectly exemplifies the flaws in oligarchy. Only a majority can consistently adopt policies which are in the "permanent and aggregate interests" of the nation."

What is this, some sort of magical thinking? Only a group representing 51% of the population can do the right thing, (And is presumed to be doing it.) while the 49% are incapable of doing so? 2% makes a categorical difference?

And, even if it did, neither party is remotely a majority, with most people not voting. It's two competing minorities, really, with the majority apathetic or resigned.

HAVA only passed as a compromise, easier registration in return for more diligent policing of registration lists. As is frequently the case with 'bipartisan' compromises, only one side of the deal got enforced.

Prove often enough that it's useless crafting legislative compromises, because the executive won't enforce the parts it doesn't like, and compromise becomes impossible.

Now the side that you cheated has the power to get what your side already agreed to deliver, and you think it an outrage that they don't agree to cheat themselves?
 

This comment has been removed by the author.
 

What is this, some sort of magical thinking?

Try reading Federalist 10.

Now the side that you cheated has the power to get what your side already agreed to deliver, and you think it an outrage that they don't agree to cheat themselves?

You're a true Trumpshevik: use of belligerent language to dodge the point. The point was that HAVA solves no actual problem -- there is no relevant voting fraud -- and because it's a poorly designed "remedy" for a non-existent problem, enforcement inhibits the voting rights of actual people. That's what oligarch's do.
 

The point is, you already agreed to purging of voter rolls. It's the law of the land, agreed to by Democrats. That was the "grand bargain" in the National Voter Registration Act, which passed with a LOT of Democratic votes.

So, you think you're entitled to not have what you already agreed to enforced, just because you didn't really want it?

That's my point: That's the sort of thinking that makes bipartisan compromise impossible.
 

We didn't agree, and couldn't have agreed, to deprive people of their Constitutional rights. Putting it in a statute doesn't change that.

Regardless, you suffered no harm from the purported non-enforcement: there is no voter fraud.

But you're still dodging the point. HAVA is a pointless, if not harmful, law. Despite that, it was the very first thing you pointed to as a possible "achievement" for your minority government. That's what oligarchies do. They focus on immaterial issues as a distraction; they divide citizens from one another in an effort to prevent an electoral majority from re-taking (rightful) control; they block solutions to actual societal problems; they impose dubious, if not downright illegal, restrictions on voting so that the electoral system can't solve the problem. You must be so proud.
 

You declare openly that you don't think you have any obligation to carry through on your side of a legislative compromise, and you complain that the other party won't deal with you? How stupid is that?

This is what parties do, Mark: If elected, they try to implement THEIR priorities, not the losing (That's you.) party's priories. They do it not because they agree with the opposing party, and just stubbornly decide to do what they agree is wrong. They do it because, freakishly, they disagree with you about the right thing to do.

Having won control of the government, Republicans will proceed to work to accomplish what THEY think is the right thing to do, not what you think is the right thing to do. And they'll ignore your every effort to arrive at a compromise, because you've already made clear that you don't abide by compromises, you break them the moment you have the chance.

Your priorities don't matter anymore. And if you continue thinking you don't need to find any way to appeal to people outside cities, they'll continue not to matter.
 

You declare openly that you don't think you have any obligation to carry through on your side of a legislative compromise

I think the record is clear on this, but I'll state it expressly anyway: I said no such thing.
 

I point out to you that the voter roll purges Republicans will likely proceed with this year are actually mandated by existing law that Democrats voted for, and your response was,

"We didn't agree, and couldn't have agreed, to deprive people of their Constitutional rights. Putting it in a statute doesn't change that.

Regardless, you suffered no harm from the purported non-enforcement: there is no voter fraud.
"

Yeah, you've made it clear that you don't think you're obliged to carry through on your side of legislative compromises. Because some variation of the above is going to be your opinion of anything you didn't want, and only agreed to in order to get something out of Republicans.
 

I should add that if you (that is, Rs) had won actual majorities, then I'd agree that they'd have every right to implement whatever they want, as you said at 3:30. But since your control of the government is illegitimate, both by democratic principle and by actual abuse of the system, all you're really doing is playing a power game. That's unlikely to end well.
 

Marty Lederman's post following Jack's post on Hamilton identifies a lot of comparable burrs under the President-elect's saddle..
 

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