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Balkinization
Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.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 Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu 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 yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Abandon all hope: Why I persist
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Wednesday, September 12, 2018
Abandon all hope: Why I persist
Sandy Levinson
David Super joins most of my family, friends, and colleagues in denouncing the idea of a new constitutional convention. I persist, and in fact more strongly than ever, in believing that a new convention is a vital necessity. I won't rehearse all of the arguments that I've made over the years, but I do have a few observations about David's posting.
Comments:
If there were a convention, do you think the delegates should consider themselves bound by the terms of ratification set out in the current constitution, considering that it declared its own terms rather than abiding by the Articles of Confederation?
Constitutional amendments are not "basically impossible" due to Article V; Article V is still the same as it was at the time of the Constitution being adopted, and the Constitution has been amended via it on a number of occasions, most recently in 1992.
Of the 33 constitutional amendments proposed by Congress, 27 have been ratified, not a bad fraction unless you think the states ought to be a rubber stamp. But, while the last amendment was ratified in 1992, the last amendment was proposed to the states by Congress in 1972, nearly half a century ago. You have to conclude that the obstacle is not ratification by the states, but instead origination by Congress. Congress has stopped originating amendments. Hence the mounting pressure for a Convention. Why would Congress, under an unaltered Article V, and with states demonstrably open to ratifying amendments, stop originating them? You may have your own theory, but I think it evident that the cause is living constitutionalism: Given a cooperative federal judiciary, Congress does not need amendments to get the "changes" it wants. Want abortion or same sex marriage to be a constitutional right? No need to draft an amendment, and win enough support to get it out of Congress and ratified by the states! Just suborn a few well placed Justices, and it's accomplished, with the states having no way to refuse the 'amendment', and no way to 'repeal' it except the amendment process you bypassed, which you only need minority support in Congress to obstruct. Article V is intended to permit amendments which have at least a reasonable level of well distributed support. (It needn't be a super-majority support among the people, even a modest majority, if widely distributed, would result in a super-majority of representatives finding that a majority of their constituents supported an amendment.) Living Constitutionalism is designed to permit 'amendments' which a President and majority of the Senate favor, (And thus will chose Justices who support.) even if the general public is not in favor of them. Want more amendments? Reform the judiciary.
Jennifer, the reason the original convention wasn't bound by the unanimity rule of the Articles of Confederation, is that they didn't propose amendments to the Articles, but instead a new constitution entirely.
To use an analogy, if a baseball team suddenly decides that they'd rather play Lacrosse, the rules of baseball don't apply to them anymore, so you don't have to ask if the rules of baseball permit you to walk off the field. You just do it, and ignore that referee blowing his whistle, because he's a baseball referee, and you're not baseball players anymore. But it only worked because there was a widespread agreement that the Articles were a failure. There isn't any such agreement that the Constitution is a failure, so an attempt by a convention to replace rather than amend it is, in the first instance unlikely, and secondly likely to result in its work product being ignored by the states.
شركة مكافحة حشرات بالرياض
شركة مكافحة الفئران بالرياض شركة مكافحة الصراصير بالرياض شركة مكافحة النمل الابيض بالرياض شركة رش الدفان بالرياض افضل شركة لرش مبيدات بالرياض شركة تنظيف كنب بالرياض شركة تنظيف موكيت بالرياض
A basic problem of the contemporary Left is that it has fundamentally lost any faith in what used to be called "the people." Thus the attraction to technocrats (as Obama turned out to be in spite of a quite different campaign in 2008, which led me to support him over Hillary Clinton).
First, on many issues, designing bridges, for example, it makes sense to prefer technocrats to "the people." More important is that we do not have a government of "the people," or of technocrats, for that matter. We have a rather silly structure that distributes voting power among the people somewhat randomly, and has, as a result of a number of demographic causes, given inordinate power to an extreme right-wing segment of the population. I share Super's belief that representation in a Constitutional convention would be no different. The minority that controls Congress and the White House would control the convention as well. Hence, no improvement can be expected and things can easily get worse. The whole thing seems like a dead end. I do think Super dismisses the problem with the EC too easily. Thus, although the winner of a thin plurality of the popular vote can lose the Electoral College – and did in 2000 and 2016 – a solid majority of the popular vote is all but assured of translating into the presidency. " Clinton's 3 million vote margin in 2016, more than 2% of the combined Clinton-Trump vote, was much larger than a "thin plurality," and Gore's 450,000 vote margin was not insignificant. And I doubt that he really meant to say that the President is elected on a basis that gives much more weight to the outcomes in more populous states
Constitutional amendments are not "basically impossible" due to Article V;......Of the 33 constitutional amendments proposed by Congress, 27 have been ratified, not a bad fraction unless you think the states ought to be a rubber stamp.
This is no argument at all. First, your numbers are deceptive. Ten amendments are essentially part of the original document, and three more took a civil war to get enacted. At least three others - 12, 20, 25 - are largely procedural, more in the nature of "technical corrections" than anything else, and there are some that make relatively minor changes. Second, proposed amendments can fail at the Congressional level as well as at the ratification step. Lots do. Third, the very difficulty of the process may well deter the introduction of amendments. No point wasting resources on a doomed proposal. So "basically impossible" seems accurate.
"Clinton's 3 million vote margin in 2016, more than 2% of the combined Clinton-Trump vote, was much larger than a "thin plurality," and Gore's 450,000 vote margin was not insignificant."
I would say that in any case where the difference between the plurality and minority is substantially smaller than a third party candidate's vote, (2.1% vs 3.3%) yeah, the margin was insignificant. Democrats really need to learn that doing phenomenally well in California isn't a substitute for winning votes elsewhere.
"Second, proposed amendments can fail at the Congressional level as well as at the ratification step. Lots do."
Almost all do. But the point is that the states have recently demonstrated that they're still capable of ratifying amendments, while Congress has failed to propose an amendment for the last 46 years. It sure does look to me like the problem is with Congress, not the states or Article V. It's not the difficulty on an absolute scale which is the problem. It's that living constitutionalism has provided a much easier process, without any risk of the states refusing to ratify. So Congress no longer bothers to use Article V. Modern Congressional 'attempts' at originating amendments aren't even serious, they're just for show. Would Congress start originating amendments again if they didn't have such easy access to 'amendments' accomplished by judicial 'interpretation'? Maybe, maybe not, but you can't blame Article V for the fact that they're not using it anymore. It hasn't changed a bit in over 200 years.
It seems to me that it's hard to discuss the merits of a Convention in the abstract. We need a lot of preliminary discussion about the mechanics of any such Convention: who gets appointed as a Delegate and how; the rules for voting; etc. Setting up a Convention without some agreement in advance on the rules is a setting up a failed Convention.
But I also think there needs to be preliminary work on what we want the new government to look like. Should we give in to the universal preference for a parliamentary system? Do we want to keep the basic structure of the existing system but fix the problems? Do we even agree on what those problems are? How does, or should, a democratic system operate? Again, without some agreement in advance, it's hard to see how a Convention could succeed.
The problem with a progressive Article V convention of the states is simple math. Not all the folks who vote Democrat are progressives. Progressives make up a minority of voters, made politically weaker in our geographical system by their self-segregation in blue megalopolises, and control an even smaller minority of state legislatures.
The first step requires two thirds of the state legislatures to apply for a convention. Legislatures generally enact applications setting out a limited agenda for the requested convention. During this process, how precisely do progressives propose to convince small and medium state legislatures to transfer their power in the Senate to CA and NY? Do progressives think the super majority of legislatures controlled by the party of business will agree to truncate the First Amendment to allow the government to censor business speech? Progressives could simply lobby for an open ended convention to propose amendments as set forth in Article V, hoping to avoid the first gauntlets of legislatures. The problem with this approach is red states will enjoy a super majority of delegates at any convention, almost guaranteeing a libertarian/conservative runaway convention meant to reverse to some extent of the progressive state. Think a balanced budget amendment, cap on spending, and a prohibition of the bureaucracy from exercising legislative and judicial power - all of which would enjoy popular voter support and have a decent chance of being approved by GOP state legislatures. It is true that the GOP will not control the 3/4 of the state legislatures Article V requires to ratify proposed amendments. However, what if the runaway convention takes a page from the 1787 constitutional convention and simply agrees to a reduced ratification threshold of say 3/5ths of the states? Suddenly, we have a re-limited government under which progressives have little power to impose their policies. THIS is why libertarians and conservatives are the ones seriously organizing and lobbying for an Article V convention. Such a convention can only be a losing proposition for progressives. As for Sandy's concerns about how such a convention would operate, the 1787 convention provided a template and the Convention of States movement has already developed a set of rules and conducted a dry run of their proposed convention.
I think at the time the Constitution was quite defensible in respect to its structures but (like RBG said in an interview about constitution-makers now not looking at our own) that over time it was not in certain respects. This doesn't mean it lacked problems. But, Utopia was a not a history book.
As to constitutional amendment, it is very hard to get them, though over time, there were various major events and movements that did lead to them occurring. Thus, e.g., a four term president led to a formal rule regarding two terms. Court decisions influenced others. Popular movements others. So, it's possible, and I would not be surprised if one or more occur in the next decade or so. It has been a while. I am concerned about the convention approach and bm and Mark Field provide good points there. I do think there are certain aspects of the Constitution that are defective. But, I do also think there is a lot of play in the points and given the supermajority necessary to have a convention and the black box nature of it in various respects plus the basic reality that I simply don't trust what the people in power now will wrought there, I rather try to work with the current mechanism and perhaps aim for certain amendments (e.g., to deal with voting rights). The whole thing seems theoretical since the people as a whole are not interested in such a thing. The usual line about the conservative nature of people there from the Declaration of Independence is suitable. A major upset occurred before the new nation was quite done in 1787 and after a civil war. The situation now is quite perilous and I can see significant change eventually. But, it isn't "reboot" time.
Democrats really need to learn that doing phenomenally well in California isn't a substitute for winning votes elsewhere.
And you need to get over your obsession with California, and the notion that CA vote somehow shouldn't count as much as say, AL votes. It's ridiculous to weight a vote by what state someone lives in. Utterly insane, no matter how often you scream, "They're all in California." I would say that in any case where the difference between the plurality and minority is substantially smaller than a third party candidate's vote, (2.1% vs 3.3%) yeah, the margin was insignificant. Another bad argument pulled out of nowhere, but I guess it makes you feel good. The third party has nothing to do with it. Is a 3 million vote margin significant if a third party gets only 2 million, and not significant if the third party gets 4 million? That makes no sense. We are talking about a contest between two major party candidates. Third party voters are in the same category as non-voters. The chance of a 51.1-48.9 split if the public is actually evenly divided is vanishingly small.
"Legislatures generally enact applications setting out a limited agenda for the requested convention."
Futile, with no constitutional basis. All it does is result in applications with different wording, providing a Congress with nothing to gain from a Convention, and much to lose, with an excuse to not add the applications together and arrive at 38. The very purpose of the convention is to propose amendments, you can't take that power away from it, and try to use it as a puppet to only originate the amendments you want. If we have a convention, it, not the state legislatures, will be calling the shots. You know, it only takes a majority vote of Congress to admit that the states have demanded a Convention, and decide the terms. Republicans should go ahead, ignore the futile attempts to limit subject matter, and declare that the convention has been called. Wouldn't that be great fun, watching Democratic heads explode?
In 1912 Wilson beat Taft by 18 points. That margin was, sadly, less than TR got as a third party candidate, so I guess it was insignificant.
"The third party has nothing to do with it. Is a 3 million vote margin significant if a third party gets only 2 million, and not significant if the third party gets 4 million? That makes no sense. We are talking about a contest between two major party candidates. Third party voters are in the same category as non-voters."
Hillary got 48.18% Trump got 46.09% (A lot more than Bill Clinton got his first time around, notice.) Johnson got 3.28% And Stein got 1.07% Since we don't do any of the fancy rank order voting tricks, you can't really say who'd have gotten whose votes if it was only Clinton vs Trump, but just for yucks: 48.18+1.07= 49.25 46.09+3.28= 49.37 So, the right got more votes than the left. ;) What we can say with confidence is, Trump won under the rules they were both running under, which were known in advance. So, enough of this whining about popular votes, there no way of knowing how people would have voted if the popular vote had mattered.
Now we've gone from "popular votes in CA don't matter" to "the popular vote doesn't matter at all".
While I think Brett's arguments here are weak, his posts do demonstrate a real issue for a potential Convention. Prof. Levinson seems to take as an assumption that we need more democracy. Features like the Senate, the EC, and Art. V should therefore be modified or abolished. But we can easily see just from the limited sample of commenters here -- to say nothing of the current political scene -- that there are Americans who don't believe in democracy at all. It's hard to see how a Convention could reach any form of agreement in the case where some large fraction of the nation doesn't want to keep the republic.
One thing that intrigues me is to have some sort of instant run-off voting (those expert on the topic can discuss the nuances of the various options).
For instance, a recent discussion elsewhere led me to look up and see that nearly 10% of the vote for president in Minnesota did not go to the top two. The difference between the top two being but a fraction of that, it is a concern. A local federal House race [NY being confused, we have a separate state primary election today] had numerous people running and the winner received under 10K vote. It being a safe seat, the person will represent something like 450K. Getting a plurality of a small voting pool. But, as Mark Field notes, a convention that takes place today very well might not make this any better, even though it is clearly a concern.
"who don't believe in democracy at all"
This isn't completely fair. If the courts decide things the "wrong" way, e.g., appeals to democracy do occur.
Brett:
Slight correction. In 2016, both the GOP House and the three candidates who were past or current Republicans running as libertarian conservatives (Trump/Johnson/McMullin) won majorities of the national popular vote. This is counting the couple million "provisional ballots" by alleged voters who did not appear on the rolls which CA placed in the Clinton column in the weeks after the election which make up her plurality margin over Trump.
Yes, I was only looking at the national candidates, not one state spoilers. You're quite right that if you add McMullin, and limit yourself to votes reported on election day, rather than dug up later, the right managed an absolute majority of the votes. And even after the usual boxes found in the trunks of abandoned cars, it was very close to 50%.
Who knows how the popular vote would have turned out, if it had actually mattered, and the candidates had been TRYING to win it? Republicans also got over 50% of the total popular vote in House races. So, naturally Democrats obsess about their having gotten a majority of it in Senate races, where a significant number of states didn't even HAVE senate elections. Absurd to declare the outcome of an election illegitimate on such sketchy grounds. Again, my advice to Democrats: Learn to appeal to people outside city centers, and you won't be so disadvantaged.
there no way of knowing how people would have voted if the popular vote had mattered.
No way of knowing, but a reasonable way of estimating, which is to assume it wouldn't be all that different. Otherwise you have to provide some reason why voters who didn't vote for Clinton or Trump, including non-voters, would have voted in very significantly different proportions than those who did. I don't think you can do that. limit yourself to votes reported on election day, rather than dug up later, the right managed an absolute majority of the votes. And even after the usual boxes found in the trunks of abandoned cars, it was very close to 50%. I know you automatically assume that when something happens you don't like it must be because of some nefarious activity by Democrats, or judges, or someone. But it's a really bad, paranoid, assumption, that discredits much of what you say. Stop believing Fox, Breitbart, Limbaugh, etc. They lie a lot. Here is some information on the delays. my advice to Democrats: Learn to appeal to people outside city centers, and you won't be so disadvantaged. I thought it was California, not city centers. I guess you don't think urban voters should count as much as rural ones either.
" Otherwise you have to provide some reason why voters who didn't vote for Clinton or Trump, including non-voters, would have voted in very significantly different proportions than those who did."
THAT is trivially easy. Take California, for instance. Why should a Republican even bother showing up for the general election? Who is there for them to vote for? That matters, I mean? Their vote for President is doomed, for lower offices there may be nobody of their own part on the ballot anyway, thanks to the jungle primary. It's quite reasonable to believe that Trump would have gotten more votes in California if the Presidency were a contest for the popular vote. California is the extreme case, of course, but in any "blue" state, if you're a Republican in a city, you might as well just stay home, and probably do. Oh, and even in California it's mostly a matter of Democrats carrying the city centers, and losing elsewhere.
THAT is trivially easy. Take California, for instance. Why should a Republican even bother showing up for the general election? Who is there for them to vote for? That matters, I mean?
Your usual partisan blindness. Sure, there were Republicans in CA, just as there were Democrats in TX, AL, etc., who thought it pointless to bother voting. Still, there were about 4.5 million CA voters who did bestir themselves to vote for Trump, so maybe your argument is not such a slam dunk. Besides, there were surely Democrats in blue states, and Republicans in red ones, who decided not to bother because their candidate was certain to carry the state regardless. Not so trivial a case after all. And, as a side note, the EC that you love so much pretty much disenfranchises those 4.5 million Trumpists in CA, doesn't it? Oh, and even in California it's mostly a matter of Democrats carrying the city centers, and losing elsewhere. You mean winning where the people live, and not elsewhere. And your statement is not really true. Yeah, thinly populated areas went for Trump, but once you get to counties with a population of 50,000 or more, hardly urban centers, it's overwhelmingly Clinton. Anyway, you have a strange obsession with the importance of where voters live, and seem to have your own hierarchy - CA, Northeast, cities, bad; Rural, southern, small state, good. Wonder where that comes from.
"but once you get to counties with a population of 50,000 or more, hardly urban centers, it's overwhelmingly Clinton."
Gee, you suppose counties with a population of 50,000 or more might have urban centers in them? Anyway, my point here was not whether one should prefer the EC or a popular vote for President. It was only that it is foolish to assume that the popular vote for President under the EC system tells you what the popular vote would have been under a popular vote system. Both campaigns and voters would have behaved differently.
Your definition of "urban centers" seems to be, "Any place that voted for Clinton."
And you stick to your geographic theories of the appropriate distribution of political power. And you unsurprisingly distort my point when you say, "it is foolish to assume that the popular vote for President under the EC system tells you what the popular vote would have been under a popular vote system." I don't think it would be exactly the same, but it is clear that, as a matter of probability, the popular vote would most likely have favored Clinton. You have presented nothing that comes anywhere close to challenging that. Just some ravings.
" don't think it would be exactly the same, but it is clear that, as a matter of probability, the popular vote would most likely have favored Clinton."
Why would it be clear? The popular vote barely favored her as it was, and the EC does function to suppress the Republican vote in some rather populated areas of the country. No, it's far from clear, and Democrats just tell themselves the contrary to have an excuse to claim their losses under the EC are somehow illegitimate.
I'm curious, too. My impression is that the leading candidates would be abolishing the Electoral College, and repeal of the 1st and 2nd amendments. But perhaps they have some genuinely interesting proposals.
"And you stick to your geographic theories of the appropriate distribution of political power."
OK, let me make a general note on that: I'm a libertarian: My view of "political power" is that there should be as little of it as feasible. My views have evolved on that, I used to be an anarchist, but I've come to accept that anarchism is unfeasible, at least under current conditions, and possible just period for humans. "Nice theory, wrong species." might not only be true of communism. Political power is to be minimized, and to the extent it can't be, the damage it causes should be minimized. "Political power" is what you concern yourself with after you've already decided to run roughshod over individuals. Running roughshod over individuals is bad. I'm also an engineer, and I think like an engineer. When I look at the Constitution's institutional arrangements, I think about them as an engineer, in terms of control theory, feedbacks, corrective mechanisms. Not abstract ideological points like "democracy". So I don't view the EC as achieving some just distribution of political power, that would be like a just distribution of assault. I view it as a way of minimizing the damage political power causes, by preventing this concentrated group of people over here from crushing that group of people over there under their hobnailed boots. I do understand that you're concerned that your hobnailed boots chafe, and need some grinding to fit better. And you're annoyed that all these institutional arrangements are getting in the way of the left ruling this country like conquered territory from their urban strongholds. I feel for you, must be frustrating.
I do understand that you're concerned that your hobnailed boots chafe, and need some grinding to fit better. And you're annoyed that all these institutional arrangements are getting in the way of the left ruling this country like conquered territory from their urban strongholds.
I feel for you, must be frustrating. Your usual, Brett. No one who disagrees with you is operating in good faith. All actions you don't like are the result of a left-wing conspiracy against the common good. So I don't view the EC as achieving some just distribution of political power, that would be like a just distribution of assault. I view it as a way of minimizing the damage political power causes, by preventing this concentrated group of people over here from crushing that group of people over there under their hobnailed boots. But it doesn't do that, unless it's the very fact that some places are densely populated makes them bad, somehow. What it does is give random groups of voters disproportionate power. I mean you love the idea of of a small, not-so-concentrated, group of people ruling much larger groups, apparently because the large groups are concentrated. (You like to talk about "urban warrens," as if city dwellers are somehow inferior to the "real Americans" of the countryside). That's insane, of course, and you don't really believe it. You favor them, and make up silly arguments - a county of 50,000 people is an urban center - to justify it, when what it comes down to is you agree with the not-so-concentrated group. I mean, really. Do you claim that the Republicans adhere to your libertarian ideals? Don't feel for me, Brett. Get help for your paranoia and irrationality.
"What it does is give random groups of voters disproportionate power."
Look, I'm not terribly concerned with defending the electoral college approach to picking Presidents. I wouldn't mind IRV, personally. I was using the EC as shorthand for allocation of power by state. My bad. As I said, there's no good reason to be confident Trump would have lost if they'd been competing for the popular vote. They were BOTH competing to win in the EC, or Hillary was an idiot. Trump was the one that succeeded at what they were BOTH trying to do. If they'd both been trying to win the popular vote, they would have ran different campaigns, the voters would have behaved differently, and it's quite possible the same guy would have won. In fact, under IRV, he probably WOULD have won the popular vote, because right-wing candidates got more votes in total than left-wing ones did. I will defend the Senate, though. Yes, it's disproportionate. But there are TWO chambers to Congress, and one of them is already by population. So one only passes legislation if popular, the other only if that popularity is not regional in nature. And I'm fine with that result. " a county of 50,000 people is an urban center " No, I said a county of 50,000 people probably contains an urban center.
I can agree that Hillary made some bad decisions in the campaign.
The point about the EC is that it doesn't at all fit your notion of "avoiding hobnailed boots" or whatever. Someone is going to get elected after all. The issue is on what basis the winner should be chosen. I think the EC stinks. The argument that a candidate should have dispersed support is silly. First, there are a lot of subgroups of the population whose experience and life differs from others. Why privilege the "lives in a small state" subgroup? Second, who says a candidate doesn't have support in an area just because they didn't carry the state. Trump got 4.5 million votes in CA. Half the states don't even have that many residents, never mind voters. Clinton got 3.9 million votes in TX, roughly the number of residents of Oklahoma. So there is plenty of geographical diversity. As for the Senate, I disagree. I don't care about the regional stuff. Most "regional differences" are not regionally based at all; they are points of view popular in some places and not others. And of course the same argument about geographical diversity applies. Just because there are not enough Republicans in CA to elect a Senator doesn't mean that there is not a lot of support for GOP policies, just as there was a lot of support for Trump. So the whole thing is sort of nonsensical. Now, if you want the Senate to reflect a broader consensus than the House, make it proportional and require a 60% vote on everything. I don't think that's a great idea, but it does a better, fairer, job of what you want than the current arrangement. We arbitrarily say that ND and SD, combined population about 1.6 million, get to outvote CA, population 39 million, in the Senate. So if the other senators split evenly SD and ND win. Thats nonsense. And it's nonsense not only because of the result, but because the allocation of power to those 1.6 million people is arbitrary, completely arbitrary and irrational. If you think minorities ought to be able to block things, why should it be only minorities defined by where they live? Why don't we say that Jews, Christians, and Muslims all get equal representation in the Senate? Or African-Americans, Hispanics, and whites? because that makes no sense, and neither does the current structure. No, I said a county of 50,000 people probably contains an urban center. My mistake, but that makes it worse, not better.
"Why don't we say that Jews, Christians, and Muslims all get equal representation in the Senate? Or African-Americans, Hispanics, and whites? because that makes no sense, and neither does the current structure."
We don't say that because that's not what the Constitution says, not because it "makes no sense." (There are even, in fact, countries such as Lebanon that have exactly that sort of arrangement in their own constitutions or governing documents.) And the current structure makes perfect sense when you consider that the states were all separate sovereigns at the time the U.S.A. became independent and that the Articles of Confederation and Constitution were both drafted on the premise that states could choose not to participate in the U.S.A. if they wanted to. Now maybe there's an interesting argument to be made that states admitted after the original 13 colonies should not be treated as separate sovereigns because they were created by the U.S.A. itself rather than being preexisting and that therefore they should be treated differently, but the Constitution doesn't contemplate different treatment of states depending on when/how they entered the Union, and I don't think there are any SCOTUS decisions pointing that way either.
The states were never sovereign in any meaningful sense of that term after the DoI, and arguably (by Lincoln, among others) not before that.
Nor was the Constitution drafted with the idea that states, qua states, could refuse to participate. Ratification expressly required approval by the people precisely because the Framers considered the states themselves inadequate for that purpose: “July 23: Mr. ELSEWORTH moved that [the Constitution] be referred to the Legislatures of the States for ratification. Mr. PATTERSON seconded the motion. Col. MASON considered a reference of the plan to the authority of the people as one of the most important and essential of the Resolutions. The Legislatures have no power to ratify it. … Whither then must we resort? To the people with whom all power remains that has not been given up in the Constitutions derived from them. It was of great moment, he observed, that this doctrine should be cherished as the basis of free Government. … There was a remaining consideration of some weight. In some of the States the Governments were not derived from the clear and undisputed authority of the people. This was the case in Virginia. Some of the best and wisest citizens considered the [Virginia] Constitution as established by an assumed authority. A National Constitution derived from such a source would be exposed to the severest criticisms. … Mr. MADISON … considered the difference between a system founded on the Legislatures only, and one founded on the people, to be the true difference between a league or treaty, and a Constitution. … In point of political operation, there were two important distinctions in favor of the latter. 1. A law violating a treaty … might be respected by the Judges as a law, though an unwise or perfidious one. A law violating a constitution established by the people themselves, would be considered by the Judges as null and void. 2. The doctrine laid down by the law of Nations in the case of treaties is that a breach of any one article by any of the parties, frees the other parties from their engagements. In the case of a union of people under one Constitution, the nature of the pact has always been understood to exclude such an interpretation.” Alexander Hamilton re-emphasized the importance of ratification by the People in Federalist 22: “It has not a little contributed to the infirmities of the existing federal system [i.e., the Articles of Confederation], that it never had a ratification by the PEOPLE. Resting on no better foundation than the consent of the several legislatures, it has been exposed to frequent and intricate questions concerning the validity of its powers, and has, in some instances, given birth to the [outrageous] doctrine of a right of legislative repeal. Owing its ratification to the law of a State, it has been contended that the same authority might repeal the law by which it was ratified. However gross a heresy it may be to maintain that a PARTY to a COMPACT has a right to revoke that COMPACT, the doctrine itself has had respectable advocates. The possibility of a question of this nature proves the necessity of laying the foundations of our national government deeper than in the mere sanction of delegated authority. The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.” As for different treatment of states, of course there have been differences. The Midwest states were admitted under the Northwest Ordinance. Southern states were not. Some states were admitted under the Missouri Compromise. Some were not. Texas was admitted with all kinds of special agreements (mostly relating to their debts). And then there's the complex question of how the traitor states were re-admitted after the Civil War.
"And the current structure makes perfect sense when you consider that the states were all separate sovereigns at the time the U.S.A. became independent and that the Articles of Confederation and Constitution were both drafted on the premise that states could choose not to participate in the U.S.A."
Doesn't really make "perfect" sense even skipping over Mark Field's post. James Madison and others wanted to apportion the Senate like state senates are done under current constitutional doctrine -- by population. So, skipping over Mark Field's discussion, perhaps it makes some sense. But, a basic respect for equality of persons, not land masses, is rather sensical too, even looking at the status of states at the time.
Joe's point is well-taken. Equality of persons is not just important for allocating representation, it's intrinsic to republican theory: the People are sovereign. Nobody gets more votes than anyone else.
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