Balkinization  

Monday, May 18, 2020

The "chaos" we fear and the chaos we ignore

Sandy Levinson

Justice Kavanaugh made a great deal of the possibility of "chaos" ensuing should the Court rule that electors can no more be "instructed" by state law on how to vote than can those other representatives elected to the House or Senate.  "Chaos" has become a mantra for those, such as the editorial board of the Washington Post, who believe that states should in fact be able in effect to instruct electors.  It is as if they suddenly perceive Godzilla threatening an otherwise stable American constitutional order.

My own view, for what it is worth, is that Larry Lessig was completely correct in his argument and that this should be regarded as a relatively easy case, especially if one purports to be an originalist.  If the Court in fact rules against Lessig, as most people apparently believe will be the case, it will be entertaining, to say the least, to see how the self-styled denizens of originalism explain their willingness to ignore what is quite clear about the "original meaning" of the electoral college as representatives of the public called upon to make decisions in the public interest as to who would be best suited to take on the roles as president and vice president.  The fact that electors are very particularistic "representatives" does not in the least change that fundamental character.  If we wanted direct democracy (which I am more sympathetic to than most people I know), we'd simply scuttle the electoral college in favor of a national vote.  We haven't.  As a matter of fact, Kavanaugh's concerns about "chaos" seem overblown inasmuch as Lessig demonstrated that we've had the "problem" of "independent," "rogue," "faithless," or "Hamiltonian" electors, depending on your own nomenclature, since at least 1796, and they have not generated chaos.  To be sure, one can envision a situation when that is possible--the black swan possibility.  But if one adopts as a general rule of constitutional interpretation (or construction) that one must always decide in terms of imagining the worst possibility, however small, and crafting doctrine accordingly, that would have significant consequences indeed.  In Printz, for example, the Court seemingly said that no circumstances at all would every justify the national government's "commandeering" state officials to implement national policy.  Perhaps that makes sense as a general practice, though I have my doubts even there.  But it is idiotic to say that even in times of genuine emergencies, state officials should be free of being "conscripted," if that is the proper term, to serve vital national goals.


But my real point is that it is the electoral college itself, and not the exceedingly slim possibility that an independent elector could indeed be decisive, that generates "chaos."  It is Godzilla, and we wish to avoid any serious discussion of that reality and instead focus on what is really one of the most trivial features of the electoral college system.  It is as if we suddenly became aroused when observing that Godzilla refused to stop at a traffic light and simply ignored the destruction he had already wreaked on the country.  Twice in this century, the "people's choice" as measured by votes actually cast was deprived of the White House, with undoubtedly disastrous consequences for the country generally.  (Even if one now looks at George W. Bush somewhat more kindly than was true at the time, this is only because the sociopathic Donald Trump has become the baseline of comparison.)  But it is also crucial to realize that Richard Nixon in 1968 and Bill Clinton in 1992 took the White House with only 43% of the popular vote.  Neither could make a genuinely plausible claim to truly democratic legitimacy even if they did come in first and got a majority of the electoral vote.  And, most importantly, Abraham Lincoln took the White House in 1860 with only 39.8% of the popular vote, and civil war ensued.  If, say, the US emulated France or several American states, there would have been runoffs, and the final results might have been different. (Or not. Obviously we'll never know for sure.)  One might also think of the 1912 election, when Wilson won because of Teddy Roosevelt's third-party candidacy.  The US has what is undoubtedly the worst presidential election system among all so-called democracies.  Imagine, for example, the not completely unlikely possibility that Donald J. Trump will lose the popular vote in November by, say, 5 million votes, but will nonetheless eke out an extremely narrow electoral vote victory, in part because GOP stooges like Texas's own Attorney General do whatever they can to prevent the move toward mail-in ballots and to engage in other forms of voter suppression.  My own view is that that result would certainly generate "chaos" and perhaps even a move toward civil war.  There would be no reason at all for Democrats to be "good sports" and view such a "victory" as legitimate, given the nature of  Donald J. Trump as a president.  That's what should concern us.  But that, of course, is just too scary, so instead Kavanaugh and others become hysterical about legitimating a practice that has in fact been with us now for almost 225 years.

Kavanaugh's and Alito's professed concerns about "chaos" are interesting principally as exemplifications of the peculiar world that they live in.  They cheerfully join in agreeing that the Supreme Court can do nothing with regard to the democracy- and legitimacy-destroying reality of partisan gerrymandering while professing great worry about the behavior of individual electors.  Why do we take them seriously as sages about our political system?  They have had no relevant experience within the American political system; it is not clear that their legal education forced them to think about the realities of the American political system; and now they get to make authoritative pronouncement about what is or is not potentially "chaotic" about it.

[ADDENDA:  Instead of a brand new posting, it seems better to add the following:

Some countries prohibit elected representatives from "crossing the aisle" by leaving the party that elected them and joining one of the other parties.  So in such countries one could not have, say, Richard Shelby, re-elected in 1992 as a Democratic Senator from Alabama.   The day after the Republican capture of Congress in 1994, he betrayed his party and his voters by switching to the Republican Party.  It was clearly a good political move insofar as he has been re-elected ever since.  Much more recently, New Jersey Representative Jeff Van Drew became a turncoat, at Donald J. Trump's invitation, and switched Republican after being re-elected as a Democrat in the 2018 election.  I suspect that most readers of Balkinization will be fonder of Senator Jim Jeffords of Vermont, who switched the Senate from Republican to Democratic control in 2001 when he discovered that he could not stomach the Bush-Cheney GOP.  That switch might even be described  as "chatoic" for those with certain political views, but the point is that no one suggested that Jeffords could legitimately be penalized in any way (other than being tossed out by the voters in the next election) for what many of his supporters undoubtedly viewed as his betrayal of their legitimate expectations.  One might argue that the most important single act of a senator is to cast his or her vote on how to organize the Senate.  It is the direct equivalent of an electoral vote.

So, if I'm correct, that Shelby, Van Drew, Jeffords, and other "aisle crossers" in our history did nothing objectionable under the Constitution and, more to the point, were protected in their independent judgment, why exactly should it be different with regard to electors?  There is a good answer, but it rests entirely on one's views of desirable public policy and has nothing truly to do with "constitutional interpretation" save as a cover for one's political preference.  As an often hardcore "legal realist," I have no principled objection to this, so long as one is honest in admitting it.  But we're told by the current majority of the Supreme Court not only that they are not "politicians in robes," but also that they are (or at least most of them) genuinely constrained by obedience to the wishes or the words of the Framers, come what may).

Comments:

"My own view, for what it is worth, is that Larry Lessig was completely correct in his argument and that this should be regarded as a relatively easy case, especially if one purports to be an originalist."

I would replace "especially" with "only". I don't see any support for the idea that "electors should come to independent conclusions" at any point in our history or practice. It's true that there have been rogue electors on multiple occasions, but I don't see that as the actual issue. To me, the issue is whether electors collectively can decide contrary to the democratic vote, as was originally intended. I don't see any benefit to that and the lack of historical support for it makes me even more dubious.

That's not to approve the EC. It should be abolished. I'm just skeptical of hypothetical "improvements" to an inherently dysfunctional system.


 

"But it is idiotic to say that even in times of genuine emergencies, state officials should be free of being "conscripted," if that is the proper term, to serve vital national goals."
An extreme Philip K. Dick thought experiment. It's 1942. The IJN took out the oil tanks at Pearl Harbor and sank the USN carriers at Midway. The Japanese invaded the defenseless West Coast and conquered California. The state government in Sacramento turned quisling, after a few strategic assassinations and arrests. Is it arguable that FDR had constitutionally to respect the autonomy of the elected state government, acting in legal form butunder duress?
 

Good analysis of the oral arguments, here in the Scotusblog ( by Amy Howe ):

https://www.scotusblog.com/2020/05/argument-analysis-in-a-close-case-concerns-about-chaos-from-faithless-electors/
 

Mark, I have to disagree with the idea that the E.C. could not be made functional with certain changes (which, of course, as they would require the approval of those who derive the most advantage from the current dysfunction, is unlikely...)

Imagine an E.C. where the electors are chosen by elections in precincts established under a rule that they represent equal numbers of people, not by the current massively unfair system. Even allowing for gerrymandering that would be better than the status quo. If the regions were set up by an independent body according to rules that would limit such gerrymandering (mathematical rules, such as: all regions must be convex except where they may follow rivers or watershed boundaries) it would further improve the E.C.

Heck, even the National Popular Vote attempt would go quite a long way toward reducing the dysfunction in the current system.

And if the size of the E.C. were sufficiently large, statistically speaking, it would in almost every instance produce the same results as a plebiscite.

 

Larry Lessig was completely correct in his argument and that this should be regarded as a relatively easy case, especially if one purports to be an originalist

I would avoid the adjectives.

An "originalist" is an unclear term which has been applied in a variety of ways. Not that I think originalism is an ideal approach. Only a few members of the Supreme Court even claim to be fully fledged originalists. Roberts and Alito do not appear to say that. Kavanaugh appears to be something of a faint-hearted one, especially since he says stare decisis is cooked in. Anyway, inconsistent originalism is a parlor game. See, e.g., the writings of Prof. Eric Segall.

I'm not going to try to parse exactly what was "originally intended" in carrying out the Electoral College for which a mixture of concerns were evident. This includes giving states discretion, rejecting a one size fits all rule.

The specific issue here is how exactly states can regulate their specific electors. (That is, if procedural issues are addressed.) The states argue that some other state very well might allow independent electors. But, Art. II specifically gives the legislature wide discretion here. Even Lessig accepts that an elector might be chosen pledged to someone. This stacks the deck -- he clearly does not take this pledge to mean they have no discretion. But, a few outliers aside, a pledge is going to result in a standardized result. For many, pledging might have more power to restrain than the threat of a fine.

Again, the Electoral College was set in place for a variety of reasons so supporters or opponents should not just selectively cite them (e.g., slavery). Bottom line, it is outdated at any rate.
 

First: I agree that elector autonomy IS dictated by originalism. Second, the Court will not rule that way; The only originalists on the Court are half hearted, nomination by politicians sees to that.

Third: "There would be no reason at all for Democrats to be "good sports" and view such a "victory" as legitimate, given the nature of Donald J. Trump as a president."

It is a characteristic failing of utilitarian, 'end justifies the means' thought, that those in the grip of it are drawn to a Manichean view of the world and their foes. After all, if you're competing for power with people no worse than yourself, you're very limited in what you can do. If you're fighting ultimate evil, what can't you justify doing?

Who doesn't like being free? And thinking the opposition horrible frees you. You have that opinion of Trump in order that you can treat him as illegitimate.
 

Bircher Brett once again demonstrates he is the least self aware creature in out galaxy.
 

And Sandy, you wonder then: " Why do we take them seriously as sages about our political system" , well, and with all due respect, they don't need to be expert in this domain (formally). What is needed, is them, to prevail in legal and constitutional issues. Suppose, that one person, is pleading insanity, and pleads to be dismissed in certain criminal case. The judge is not a medical expert, nor psychiatrist. Yet, it is up to him, to decide and prevail whether the person is sane or not, or was sane while committing the offense(after examining medical opinion). That's it. The same for the political domain. Yet, even so, they are the most trained and experienced persons, even in that arena, simply because(among others) they deal with hell of variety of issues. Ranging from:

Privacy, military, International, criminal, civil, tort, constitutional issues and more. And many times, one issue, from one domain, demands integral understanding. Let's take the current pandemic ( Covid - 19 ). You can't detach it from issues of:

Privacy. Emergency rules. Administrative issues. Medical issues ,and so on....

But above all:

They are well trained for being impartial, and having objective attitude. You for example, you hate Trump that much, that it is hard to imagine, how would you even somehow, agree, that he can do or say something, not nasty, or reasonable at first place. But, they are well trained, to ignore any partiality, and being attached to both sides arguments.While you, well entrenched on one side, you wouldn't be able whatsoever, to raise your head, look around, and identify, even one crazy ISIS fighter. That's it.

Thanks




 

This comment has been removed by the author.
 

I like the bit about Thomas only being a half-hearted originalist. But, hey, in a fashion that is correct. See again the writings of Eric Segall regarding originalism in action.

Just to clarify, this is a more complete quote:

Donald J. Trump will lose the popular vote in November by, say, 5 million votes, but will nonetheless eke out an extremely narrow electoral vote victory, in part because GOP stooges like Texas's own Attorney General do whatever they can to prevent the move toward mail-in ballots and to engage in other forms of voter suppression.

Note the hypo includes not just a popular vote loss & electoral vote win but illicit voter interference.

If SL wishes to be real harsh, he can use terms like "bank robbers" or something.
 

Kavanaugh's completely right.

Of course the EC is supposed to mean the electors choose the President. Some of the argumentation in this comments thread is incredibly dishonest. We know that the electors are supposed to choose the President because that's what the Constitution says. It's not, actually, ambiguous.

But historical practice changed. And you can't insert electors choosing the President BACK INTO THE MODERN SYSTEM.

Indeed, I wish the Court's conservatives would more consistently apply the "avoid chaos" canon. It's a good one.
 

C2H5OH, I agree that the changes you suggest would make the EC "better". But it looks to me as if it would be "better" because it would closely mirror the actual vote. In that case, it seems to me that the actual vote should be preferred.
 


And speaking of impartiality of judges, I quote Justice Scalia at the time ( in that motion to recuse himself in Cheney v. United states district court( Columbia )) here:

" To expect judges to take account of political consequences—and to assess the high or low degree of them—is to ask judges to do precisely what they should not do. It seems to me quite wrong (and quite impossible) to make recusal depend upon what degree of political damage a particular case can be expected to inflict."

That is the difference among others, between us, experts of all sorts, and them, the judges.

Here to the ruling:

https://www.supremecourt.gov/opinions/03pdf/03-475scalia.pdf



 

You would think that the Trump wing of the Court would be happy with the originalist interpretation. After all, the electors (minor party operatives and activists) would likely have amongst them a number of people who would be susceptible to bribery or blackmail. It wouldn't be necessary to indues them to vote for Trump - just to throw their vote away on a third-party candidate or non-candidate (Bernie, perhaps). And the bribe could be of a sort that this Supreme Court has already said is no bribe at all.
 


BTW, el roam, this is what Scalia said to justify his vote in Bush v Gore:

The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.

So there, the political consequences were paramount. Funny how that works.
 

"But historical practice changed. And you can't insert electors choosing the President BACK INTO THE MODERN SYSTEM."

Oh, come on. If things can change in one direction, they can change in the other.

What you can't do, without massive controversy and unrest, is to change practice after the votes have been cast. People need to know that the rules announced up front will be enforced even after we know who benefits from their enforcement.

Can we agree that Congress should expeditiously originate an amendment making the EC votes a formality? That amendment would be ratified in record time, while an amendment abolishing the EC would likely not stand a chance.
 

"If things can change in one direction, they can change in the other."

Really? Let's see you reverse entropy.
 

If things can change in one direction, they can change in the other.

Yes. The law develops over time and can circle back. What is "reasonable" under the 4A or "cruel and unusual" can change. In the 1960s, there was a strong understanding the death penalty was cruel and unusual. That -- in part in response to the times -- changed. This was reflected in judicial decisions, judges appointed and confirmed by political actors who in some part respond to popular opinions.

As to abolishing the EC. Well, that isn't the issue at hand. As to standing a chance, safe bet unless the result of an election makes it a felt demand. 2000 was a joker there especially since the vote in Florida was so very close. 2016 is harder to handwave. Third time might be the charm there especially if the 2020s brought a new environment open to significant changes.

As to the matter of electors being basically potted plants, well, that isn't merely modern history. People when the 12th Amendment was ratified was saying the independent elector concept wasn't playing out how many expected. This would factor into interpreting the 12A.

Kavanaugh's chaos test assumes an ambiguous case, a tiebreaker. See transcript.
 

"Really? Let's see you reverse entropy."

I have a machine in my kitchen that reverses entropy. It's called a refrigerator.

You can't globally reduce entropy, but you absolutely can do so locally, so long as you increase it more somewhere else.
 

I very much appreciate the comments received so far. I reply to one one of them, Mark Field's seeming suggestion that the state's right to "appoint" electors carries with it the right to "instruct" them in how to vote. But consider the Senate, at least prior to the 17th Amendment. The Constitution clearly and unequivocally gives state legislatures the right to appoint senators. There were those at the time who believed in the theory of "instructed" representatives, and they clearly and unequivocally lost such debates. No one at the time suggested that electors were "special" kinds of representatives, whether appointed or elected, who were subject to instruction in a way that representatives and senators were not. Even after the fiasco of 1800 and the corrective Twelfth Amendment, the Constitution did not adopt the notion of instructed electors. Their vote was a matter of the political process, and the creation of political parties is precisely what created the possibility of "faithless" electors. But we've been on notice for literally two centuries that that is a potential problem, but only recently have states proclaimed the constitutional power of coerced "instruction," as against asking them for promises (which can be broken) to vote for the party's candidate.


 

I don't see why originalism dictates that the electors are free to vote as they wish, or rather that the states may not restrict them.

The "manner of appointment" of electors is up to the state legislature. The grant is broad and I see nothing to suggest that the legislature may not impose whatever requirements it likes, including a pledge which would carry criminal penalties if broken.

Of course, there is nothing to authorize that either. My own, no doubt unoriginal, belief is that there are Constitutional questions that the Constitution does not answer. Such questions either did not occur to the framers or they chose not to address them. So when they arrive lots of people start scurrying for justifications for their preferred reading.

In this case, "What the framers expected to happen," is one such justification. But who cares what they expected? They didn't expect political parties either, but that doesn't mean the Constitution outlaws them. It just means that their expectations were not realized.

I wrote the above before I saw Sandy's comment. But I think that instructing a Senator is vastly different than instructing an elector. Legislation that a Senator votes on is often complex, a result of compromises, with lots of different provisions. Instructing a Senator is not, in general, practical. Not so with an elector, whose options are few, discrete, and well-known in advance. To tell an elector he must vote for Foghorn if chosen, as he promised to do, is straightforward.
 

Mark and C2H5OH,

I think the best immediate reforms for the EC are 1) make the math automatic (no electors **) and 2) allocate the electoral votes in each state in proportion to the statewide popular vote with a minimum 15% threshold for getting any electoral votes.

Mark correctly points this scheme is close to using a nationwide popular vote. So why not move to a nationwide popular vote? Because 3/4 of the states won't go for it. My proposal retains the advantage that a Wyoming voter has a over a California voter while getting rid of the most pernicious effect of vastly more power given to purple-state voters. Because the identity of purple states changes with time, perhaps 3/4 of the states would be willing to go for my proposal.

** I strongly suggest Jeff Greenfield's "The People's Choice" for a tale of EC chaos.
 

byomtov,

I agree the states can require a pledge from an elector. But, if the Constitution guarantees the right of an elector to vote as she wishes, then punishment for breaking the pledge should be considered as verboten as punishment for exercising one's freedom of speech.
 

"Mark Field's seeming suggestion that the state's right to "appoint" electors carries with it the right to "instruct" them in how to vote."

I do think the issue of individual rogue electors is not very important (though it could be). Outside of the originalist argument, I don't see any historical support for the idea that electors *generally* could vote contrary to the voters of their respective states.

Of course, at the limit the vote of an individual elector or those of electors more generally could potentially swing an election. For an originalist, this shouldn't be a problem. Everyone else, I think, would find that a huge problem. To the extent that this implies that states can prevent such an outcome, I guess that includes the power to instruct them. Since this would enforce the historical practice by which the electors follow the returns of their states, I think it's more defensible than reverting to an originalist position which has never been followed. In this regard, byomtov's point about the single issue instruction seems important.

 

just_looking: Without doing the math, I'm pretty sure your suggestion would strongly favor the Republican Party. Just for example, WY would have cast roughly 2 votes for Trump in 2016 instead of 3. CA, by contrast, would have cast 21 for Trump instead of 0. Because the EC tilts so heavily in favor of rural states, and because those states vote R by large margins, the effect would be to take blue state votes away from the Dems and allocate them to the Rs.

Assuming that's true, the blue states wouldn't agree to it.
 

Had my proposal been in place in 2016, Clinton wins 272-265-1 (McMullen gets one Utah EC vote).
 

And, if you modify my proposal so that the number of EC votes is proportional to the statewide population (e.g., Wyoming gets 1 EC vote and California gets 65), Clinton wins 275-262-1. So, there is a small tilt towards the red states in my proposal. But, it does away with the primary effect in the current winner-take-all system which is a much larger tilt towards purple states.
 

Electors cast votes in the states at issue. The idea of an independent elector requires original understanding or something beyond mere text. Kagan was correct there. And, the exact nuances of the Electoral College was not much discussed in 1787; selectively citing what one or the other Framer said and determining that is the Word of God is the usual game here though.

Ray v. Blair [1952] and the state briefs provide historical evidence going back to the 1790s (or even as far back as the first presidential contest) of an understanding of a pledged elector. This is a form of "instruction" and was already basically a given & was said as much when the 12th Amendment was being drafted and ratified.

This also was used what states passes laws regarding the appointment of electors. As one state noted: "It also became standard practice for States to allow political parties to nominate electors pledged to the parties’ candidates."

A pledge isn't trivial. It is a matter of honor. Duels were fought over such things. And, since faithless electors are outliers, this is well shown. In time, pledges were also common when legislatures chose senators (thus some were "Douglas" men or "Lincoln" men). Also, some voted those pledged to be "ratifiers" or "anti-ratifiers" of the Constitution in 1787. The basic concept is reasonable.

In answer to a question by Thomas, one of the states noted that back in the 1910s an elector was removed when it was deemed he would break his pledge. There wasn't much of a need to check electors more given so few were "faithless." But, the briefing cites examples (after a faithless elector arose) in multiple states in the 1960s and 1970s that bound electors.

I also think byomtov says things well.
 

just_looking: Thanks.
 

"Had my proposal been in place in 2016, Clinton wins 272-265-1 (McMullen gets one Utah EC vote)."

It has to be remembered that the candidates craft their campaigns based on the current functioning of the Electoral College. If the rules were changed, they'd campaign differently. The voters would react differently.

IOW, you really can't assume the votes would have ended up the same if they'd been counted up in a different manner.
 

Brett,

Of course the campaigns would have been run differently. They would be conducted as they should be, instead of as they are with large swaths of blue and red America being ignored.
 

It's funny that Bircher Brett likes the explicitly written in the Constitution un-democratic features of the EC in one aspect (favoring the voters of Wyoming over California) but not in another (those darned 'elite' electors might do something wacky).

I mean, you'd think he'd be fine with a rogue elector. What principle that he respects are they hurting? I mean, it's just a sheep refusing to do what the wolves who want to eat him voted him to do....
 

As to the OP, I think Sandy makes two correct points:

1. The text ("The Electors shall..vote by ballot for President and Vice-President") and original expectation (which is fairly worthless imo) mean the elector can't be bound and
2. That's crazy.

It is funny to see self-proclaimed 'originalists' or 'textualists' like Alito and Kavanaugh let 2 'trump' 1 here.
 

Regarding the members of Congress who have switched parties, in theory that shouldn't matter, because they remain free to vote as they please. Of course, for the most part, members go along with their party, but that's not the main problem with their switching parties, because that's their choice.

The main problem is the winner-take-all way that the House and the Senate work. Why should the fact that there are more Republicans than Democrats in the Senate mean that the majority leader has the sole power to decide what bills or what Supreme Court nominees go to the floor? Perhaps one-quarter or one-third of the members ought to have that power. Why can't members of the minority party conduct hearings and investigations? It's not as if parties are mandated by the Constitution. Why should my representative or senator have less power than yours merely because voters in other states have caused him to be in the minority party?
 

"I mean, you'd think he'd be fine with a rogue elector. What principle that he respects are they hurting? I mean, it's just a sheep refusing to do what the wolves who want to eat him voted him to do...."

Look, the original concept for the EC was that the people selected would be prominent and well respected individuals; Retired judges, elder statesmen, the sort of people you might trust to make momentous decision. Didn't work out that way. Predictably so, in retrospect.

Once it was established that the Electors would be inconsequential nobodies expected to perform a purely ministerial role, the purpose of having them be actual people was gone.

This is entirely orthogonal to the question of how the votes should be weighted in the Electoral college.

I personally think it winner takes all allocation of EC votes has a distorting effect, and think the way Maine and Nebraska do it, two EC votes statewide, and one allocated to the winner of each Congressional district, makes sense.

But, as usual, I distinguish what I think would be good policy, from what the Constitution actually mandates, while maintaining that it is overwhelmingly good policy to obey the Constitution's mandates, or amend it if this is seen as undesirable.

So, should Electors have discretion? No. Do they? Yes. Let's change that, and doing so calls for an amendment.
 



Unkown,

Well, this is really senseless with all due respect. Those quotes made for the media. He has provided very serious and complete and legal/ constitutional explanation in his concurring opinion ( written by Justice Rehnquist). Go and read it, and all the way down to details, and understand his decision. Here ( from p. 111):

https://supreme.justia.com/cases/federal/us/531/98/case.pdf

Thanks

P.S: p. 111 means in the original pages, not the digital presentation of the adobe reader program. There, it is presented as: 1-61.



 

"Retired judges, elder statesmen, the sort of people you might trust to make momentous decision."

Really respected sheep should make the decision for all the other sheep.

Just like the political professional sheep should make the decision for all the other sheep under the pre-17th Amendment regime.

This is 'anti-elitism.'

We get it Bircher.
 

It occurs to me that the election of 1800 turned on the *absence* of a faithless elector. One of the electors was supposed to vote for Jefferson rather than Burr, but the party leaders screwed up. I guess that's evidence supporting faithless electors. However, the ratification of the 12th A solved that particular problem and the assumption ever since has been that electors will vote for "their" candidate.
 

"Really respected sheep should make the decision for all the other sheep.

Just like the political professional sheep should make the decision for all the other sheep under the pre-17th Amendment regime.

This is 'anti-elitism.'

We get it Bircher."

Wow, you're really losing it here.

There's not much question that the electors were initially expected to act on their own discretion, and were expected to be selected from the elite to this end. Do you see anywhere I advocate this way of doing things? If you do you're hallucinating.
 

I [...] think the way Maine and Nebraska do it, two EC votes statewide, and one allocated to the winner of each Congressional district, makes sense.

Because of gerrymandering and geographically compact districts that overwhelmingly vote Democratic, allocating EC votes by congressional district will unfairly favor Republicans. Democrats need to win the nationwide congressional popular vote by about 5%-points in order to control the House.
 

"Because of gerrymandering and geographically compact districts that overwhelmingly vote Democratic"

Gerrymandering is practiced by both parties, and almost entirely cancels out. The fact that Democrats tend to be much more concentrated than Republicans is their real problem. I happen to think that a political system designed to punish merely local appeal is actually a good thing. Perhaps Democrats should learn to better appeal to people who don't live in urban centers?

Evaluating partisan gains from Congressional gerrymandering: Using computer simulations to estimate the effect of gerrymandering in the U.S. House

Abstract:
"What is the effect of gerrymandering on the partisan outcomes of United States Congressional elections? A major challenge to answering this question is in determining the outcomes that would have resulted in the absence of gerrymandering. Since we only observe Congressional elections where the districts have potentially been gerrymandered, we lack a non-gerrymandered counterfactual that would allow us to isolate its true effect. To overcome this challenge, we conduct computer simulations of the districting process to redraw the boundaries of Congressional districts without partisan intent. By estimating the outcomes of these non-gerrymandered districts, we are able to establish the non-gerrymandered counterfactual against which the actual outcomes can be compared. The analysis reveals that while Republican and Democratic gerrymandering affects the partisan outcomes of Congressional elections in some states, the net effect across the states is modest, creating no more than one new Republican seat in Congress. Therefore, the partisan composition of Congress can mostly be explained by non-partisan districting, suggesting that much of the electoral bias in Congressional elections is caused by factors other than partisan intent in the districting process."
 

Reference was made how a senator and an elector are different characters. I would think that starts the ball rolling on why the addendum is not really the same thing. The switching House member, e.g., is up for re-election. An elector isn't.

As to Henry's point, there are means to force votes, though it's a rarely used device. One can imagine a better system there & yes it has been abused of late in the Senate.

The minority party having less power is a matter of majority rule eventually and this goes beyond parties. Minority members still have some role -- they have membership on committees, have the right by rule to call some witnesses etc.

==

Brett's gerrymander stuff was handled in the past including maybe Republicans should appeal to urban voters etc. But, Dems do appeal to more than urban voters. In 2018, e.g., they gained a majority in part by appealing to suburban voters. Gerrymandering over the years have benefited both parties. The one person, one vote rule in the 1960s also affected both parties.
 

But, as usual, I distinguish what I think would be good policy, from what the Constitution actually mandates, while maintaining that it is overwhelmingly good policy to obey the Constitution's mandates, or amend it if this is seen as undesirable.

As does many others, though you disagree with them on the particulars. At times, you think your idea of "good policy" is mandated when it isn't.

I think the evidence suggests that binding electors is allowed by the Constitution and this was the case from the 1790s. Whatever mixed original understanding, the matter in no way clearly settled especially since the Electoral College was a compromise with the various sides as is usual in such cases not in full agreement on the particulars.

But, let's amend the Constitution. The Electoral College is out of date. The half-way workarounds might be necessary though if there was actually a chance for ratification, maybe going all the way is possible.
 

"To overcome this challenge, we conduct computer simulations of the districting process to redraw the boundaries of Congressional districts without partisan intent."

This is way off topic, but there's no such thing as "the" districting process. There are many ways to draw districts and I suspect their assumptions mandate their conclusion.
 

"This is way off topic, but there's no such thing as "the" districting process. There are many ways to draw districts and I suspect their assumptions mandate their conclusion."

Their districts were generated by a requirement for equal population, and compact boundaries. Otherwise they were randomly generated. Then they just used precinct level voting data to figure out what the likely outcome would be.

Yes, there are many ways of drawing districts, gerrymandering is merely drawing them to attain a particular outcome. Unless you deliberately set Democrats doing well as a driving goal of districting, or GROSSLY violate compactness, (Each district is just a random collection of disjoint precincts, for instance.) you tend to get maps that are disadvantageous to Democrats. That just naturally falls out of the way Democrats and Republicans are distributed.
 

"Their districts were generated by a requirement for equal population, and compact boundaries."

As I suspected -- they gerrymandered the districts under the pretense of "objective" criteria. How very Republican of them.
 

There was no "original intent" concerning the proper method of choosing the POTUS. The convention was irreconcilably divided between those who wanted Congress to choose the POTUS like a British PM and others who wanted a direct election. The idea of state legislatures choosing electors equal to the state's Senators and Representatives a compromise born of frustration, where the delegates all had a different ideas of how the vaguely defined system would function.

Textually, the Constitution effectively delegated execution of the new system to the state legislatures: Each State shall appoint, in such Manner as the Legislature thereof may direct.... The legislatures eventually created the system we have today, a winner take all direct vote by state where the function of the electors is ministerial.

The Constitution grants legislatures the power to set conditions on the appointment of electors, including voting for the winner of the state or district popular vote. Indeed, the Constitution's guarantee of a republican government to each state would appear to require this.
 

"As I suspected -- they gerrymandered the districts under the pretense of "objective" criteria. How very Republican of them."

As I knew quite well: You'll define any districting scheme that doesn't go out of its way to advantage Democrats as "gerrymandering".

That's why only Democrats take Democrats' complaints about "gerrymandering" seriously anymore: You define "gerrymandering" in such a way that the only way to avoid being accused of it is to commit it!

Hm, kind of resembles your approach to "racism", too, come to think of it. I guess it's your general approach to everything.
 

Take Virginia. They didn't have a statewide elected official for about a decade iirc but they had 8 of 13 Congresscritters GOP and a majority of state legislators GOP.

But according to anti-democratic Birchers like Brett it's the fault of that solid majority for preferring city life.
 

"But according to anti-democratic Birchers like Brett it's the fault of that solid majority for preferring city life."

I don't blame them for preferring city life. Hey, to each their own. Like any vice, life in the city has it's benefits. Though the increasing urbanization of America is as much a product of legal incentives as public preferences. (Cities can annex surrounding areas, for instance, but not the other way around.)

The problem is that urban living at high population densities is deeply unnatural for us partially evolved tool using apes. It psychologically damages us. It warps people. Throughout all recorded history, and today, too, cities have been population sinks, they're where people go to die.

And then they get to thinking that everybody should live by their neurosis'. That's what I really object to.


 

As I knew quite well: You'll define any districting scheme that doesn't go out of its way to advantage Democrats as "gerrymandering".

This is delusional.

According to your criteria, a system to avoid gerrymandering it is necessary to have a scheme that disadvantages Democrats. Your obsession with "urban voters shouldn't count as much as rural ones" has no basis is logic or common sense.

And the talk of "merely local appeal" has no such basis either. It's more geography worship disguised by meaningless verbiage.
 

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Gerrymanders are irregularly shaped districts running across and breaking up communities of interest.

Because the Dems are primarily self-segregated in urban areas, the only way to maximize their votes in state elections is to create gerrymanders extending from urban centers, pulling in a large minority of red suburban and rural voters who have little in common with the city dweller majority.
 

The kind of party-switching Marty describes is indeed closer to an elector violating a pledge than a legislator simply voting in an unexpected way. But there are still significant differences.

Legislative candidates are known to the voters. They make speeches, give interviews, are in the news, etc. At least some of the votes they get are based on their personal qualities and publicized views, rather than purely on party affiliation. Voters generally expect them to exercise their judgment when in office. None of that is true of electors. In November 2016 I did not know the name of a single elector, of any party, on the ballot. Did anyone? I will wager that at least 99.99% of Presidential voters are voting for a candidate for President, not candidates to become electors.

In each case Marty cites the switcher was influenced by events and policy issues. No elector can plausibly claim to have changed her mind during the five weeks between the November election and the casting of electoral votes.

And of course the legislator who switches may well have to face the voters again. Shelby has had no problem there, and Van Drew is running this year for the first time since his switch. Jeffords chose not to run after switching. Electors are not subject to this sort of discipline.

What it amounts to is that being a legislator is a complex job, and the legislator's commitment to the voters is imprecise. Being an elector is simple. You vote once, choosing from a very small number of options, and the expectations of the voters as to how you will vote are clear and well-defined. That lends itself to requiring a pledge in a way that a legislative campaign does not.
 

"According to your criteria, a system to avoid gerrymandering it is necessary to have a scheme that disadvantages Democrats."

No.

What I'm saying is that "gerrymandering" is, just precisely, drawing the district lines to attain a particular outcome, rather than drawing them by non-political criteria and just letting the result be what it is. That's all it means: Trying to dictate the outcome of elections by the way you draw the districts!

And any map drawing that doesn't set out to give Democrats an advantage is going to naturally cause them trouble, because Democrats are inefficiently distributed. That doesn't mean that drawing compact districts is being done in order to hurt Democrats.

You're trying to invert the meaning of "gerrymandering", to make the only way to not be guilty of it be to commit it by the original meaning of the term. Either the districts are deliberately drawn to improve Democrats' prospects, or you'll call it a "gerrymander".

That IS rather like the way Democrats now declare that refusing to racially discriminate is "racist". I guess the pattern here is just the Democratic tendency to redefine words so that you automatically win.
 

Brett said, I happen to think that a political system designed to punish merely local appeal is actually a good thing.

Awarding EC votes based on congressional district gives much more power to a voter in a purple district than a voter in a deep red or blue district. It appears that Brett thinks such a system is desirable. I do not.
 

Brett: That doesn't mean that drawing compact districts is being done in order to hurt Democrats.

Of course it is.

A practice can be both done for partisan advantage and be perfectly legal and good policy (keeping communities of interest together).
 

"It appears that Brett thinks such a system is desirable. I do not."

Yes, I think that a political system should incentivize parties to have a broad appeal, rather than just achieving over-all majorities by utterly dominating a particular segment of society.

Democrats have so precisely tuned their appeal to urban dwellers that they get 70, 80, 90% of the urban vote. They've turned urban centers into one party states where anybody who disagrees with them has to either shut up or get out; Their absurd super-majorities in cities aren't achieved just by being really good at representing city dwellers, they're really good at suppressing dissent, too.

And they figure that having done this to the point that they get narrow majorities in the nation as a whole, should entitle them to rule the whole country from their urban strongholds.

Basically they want to treat everywhere but urban centers like conquered territory.

Geography really is a legitimate part of representative government. These people HERE should not end up under the thumb of those people over THERE. It matters where the people are.

I think a system really should be set up so that having a broad appeal is rewarded. So that getting 90% of the vote in cities, and doing meh everywhere else doesn't entitle you to rule the whole thing.
 

Yes, Sandy Levinson's examples in his addendum don't really match electors and as more independent agents with a diverse portfolio they might actually have some cause (such as a liberal Republican in 2001 responding to how Bush governed) to shift parties. The representative who shifted based on his impeachment position also is defensible (if not on the merits) given the central issue at hand. And, the people could decide in the next election. Plus, if two hundred years of history simply deemed that simply an improper way of doing things, it still would be an issue if a representative shifted parties.

One can imagine extreme cases involving events that occur between the election and the electoral vote (such as a candidate committing a crime in late November) that in theory would be relevant if we had a system of independent electors. The 2016 situation was not that. We knew Trump before Election Day. I guess an argument can be made his election was such a surprise that it was a sort of "black swan" event that would provide grounds for faithless electors. Many did think even on Election Day Trump would lose. But, that just takes us back to the understanding basically our whole history that presidential electors were not independent agents.

It was flagged an absolute binding rule might result in some problems if a candidate died or something. The only time a presidential candidate died in such a situation was the losing candidate (a losing v.p. also died). It is as one professor in a piece linked at Election Law Blog argued unlikely the states would enforce the binding rules if electors vote for the candidate the party selects to fill the vacancy here. But, states should factor that in. This might otherwise result in the House (by the also misguided one vote per state rule) needing to settle things.

One more thing. Faithless electors basically never mattered (except maybe Mark's 1800 example) but very well could have. 1876 could have been different with a couple faithless electors. Gore received 267 electoral votes (one elector voted null, so it was counted 266, to make some sort of D.C. related protest). So there too. And, 2020 very well might be very close.
 

Democrats have so precisely tuned their appeal to urban dwellers that they get 70, 80, 90% of the urban vote. They've turned urban centers into one party states where anybody who disagrees with them has to either shut up or get out; Their absurd super-majorities in cities aren't achieved just by being really good at representing city dwellers, they're really good at suppressing dissent, too.

Or, Republicans tuned their appeal so that urban dwellers find them so unpleasant that so few of them vote for them. Republicans have their own one party areas. Republicans must just be really good ...

And they figure that having done this to the point that they get narrow majorities in the nation as a whole, should entitle them to rule the whole country from their urban strongholds.

Granting this rhetoric, I gather this is better than ruling the nation as a whole w/o even gaining a majority, but benefiting from minority rule mechanisms including in the Senate that repeatedly was a result of strategic state line drawing. But, the rhetoric is that since so many people live in cities, this is somehow a problem, and land should get more coverage in legislatures than people.

Basically they want to treat everywhere but urban centers like conquered territory.

Still having hard feelings about 1865? But, anyway, this is crap. They can not gain power merely by appealing to cities. They showed this in 2018 by in part finding means to win in suburban areas.

Geography really is a legitimate part of representative government. These people HERE should not end up under the thumb of those people over THERE. It matters where the people are.

Majority rule with a bunch of checks (this prevents "conquered provinces") is part of representative government. This includes not giving equal representation to thinly populated areas. Geography can factor in somewhat but it doesn't really matter as much as all that. There are a variety of interests and giving Texas and Vermont the same amount of senators is not a good way to represent them.

I think a system really should be set up so that having a broad appeal is rewarded. So that getting 90% of the vote in cities, and doing meh everywhere else doesn't entitle you to rule the whole thing.

Democrats don't just have support in cities. They have broad appeal because people support the basic things that they support, including halfway credible skillful executives, health care, Social Security, gay rights etc. But, if this is your concern, if you are consistent, maybe worry about your own house.
 

set out to give Democrats an advantage

You have a funny idea of the meaning of "advantage."

they're really good at suppressing dissent, too.

Laughable, coming from a supporte of the "voter fraud" scam.

Plus what Joe said.
 

"Majority rule with a bunch of checks (this prevents "conquered provinces") is part of representative government."

That was certainly the original understanding:

Federalist 22: “Its [Articles of Confederation] operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail."

Federalist 58: "In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority.”

George Washington: The Whiskey Rebellion "violate[d] the fundamental principle of our Constitution, which enjoins that the will of the majority shall prevail.”

Thomas Jefferson, First Inaugural Address (March 4, 1801): “[I]t is proper you should understand what I deem the essential principles of our Government.... absolute acquiescence in the decisions of the majority, the vital principle of republics....”

Usual caveats about the Founders' failure to adhere to actual majority rule, but the principle remains true. Except in the EC and in gerrymandered R states.
 

"Majority rule with a bunch of checks (this prevents "conquered provinces") is part of representative government."

Right, and this is a big part of the problem. Those checks are gone. Every election is for the whole ball of wax.

I'd like those checks, those limits on what government is allowed to do, back. I'd like elections to be low stakes affairs.

I'd love to live in a country that wasn't one election away from having basic civil liberties abolished because Democrats responded to the Supreme court saying the couldn't censor political speech or ban guns with threats of Court packing. And Court packing only takes a cooperative President and a bare majority in Congress.

We can't rely on the checks, because whether or not there should be checks is the exact thing we're fighting over, and you're on the side fighting to destroy all the checks. Fighting to render government all powerful.

Fighting to make every election for the whole ball of wax, because you're incapable of admitting anything you want is off the table.
 

brett: Yes, I think that a political system should incentivize parties to have a broad appeal, rather than just achieving over-all majorities by utterly dominating a particular segment of society.

Wouldn't winning 90% of urban voters and 40% of rural voters show a broader appeal than winning 10% of urban voters and 60% of rural voters?
 

The fundamental problem with Brett's thesis, that geography should matter, is that geography is not where the intelligence resides. Unless one thinks that the rural areas are wiser (and the election of 2016 provides a powerful disinclination to believe that. Did the voters in 2016 elect Trump because they thought he'd protect the constitutional rights of people? It is to laugh.)

A further problem is, if one accepts this idea, the question then is raised, by how much more should these rural areas get a say in the running of this country? (We note that, if one had a reason why this should be true, it might be possible to quantify the value of rural voters, but absent that, it's hopeless.) To claim that the way it is now is the ideal is fatuous on the face of it.

So, anyone, do you want to try and justify this thesis on any sound logical footing?
 

These people HERE should not end up under the thumb of those people over THERE. It matters where the people are.

Yet right this very day people living in blue states are under the thumb of those living in red states, and this troubles you not one bit.

Like it or not, there are more Democratic voters in th country than republican, yet Republicans control the Senate and the White House and as a consequence the judiciary.

Democrats responded to the Supreme court saying the couldn't censor political speech or ban guns with threats of Court packing.

No they didn't. Once again, as always, the statement of some Democrat is taken as "the Democrats" for your purposes. Now, to be fair, I actually do favor court packing, but it has little to do with gun rights or political contributions and more to do with responding to the GOP's court-packing.

I know. You're going to define "court-packing" in a very specific way to exclude what McConnell hath wrought. Doesn't matter. The GOP has pulled out all the stops it could to tilt the courts to a right-wing agenda. I see no reason the Democrats shouldn't move aggressively to counter that.

And I rather imagine that others who favor court-packing do do for similar reasons.
 

It's not a question of which part of the country is smarter. Does claiming to be a little bit smarter, or better educated, or just better credentialed, entitle you to rule like natural lords?

Did the voters in 2016 elect Trump because they thought he'd protect the constitutional rights of the people? At least in part, yes. There are constitutional rights, explicitly guaranteed, that the Democratic party is hostile to. Part of your hostility is just laughing off the idea that they're real, that anybody cares about them. But look at how the Democratic party reacted to Citizens United telling you you couldn't censor political speech, at how you reacted to the Heller decision telling you you couldn't ban gun ownership. You guys went freaking NUTS.

You think you're entitled to order people to buy insurance, or maybe prohibit people from buying it, depending on how you feel about it on any given day. You think you can tell us what sort of light bulbs we can use, how much water can run through our shower nozzles, you name it. There isn't ANYTHING you don't think you're entitled to issue orders about.

Should the rural and suburban areas rule the city centers? No, no more than the city centers should rule the countryside. Nobody should rule anybody, really, people should be free.

But if the only choice you're going to give us is us ruling you, or you ruling us, if leaving each other alone is just off the table because you won't freaking leave us alone, why wouldn't we prefer ruling you?
 

"I know. You're going to define "court-packing" in a very specific way to exclude what McConnell hath wrought."

Yes, I'm going to define it as what it has meant for about a century. Rather than a Republican Senate not confirming a Democratic President's nominee.
 

Right, and this is a big part of the problem. Those checks are gone.

They are not. For instance, different areas of the country might have different religious beliefs. But, a basic check (admittedly attacked by the likes of Trump/Pence) is the individual religious liberty.

I'd like those checks, those limits on what government is allowed to do, back. I'd like elections to be low stakes affairs.

When is this golden age?

Elections are not supposed to be merely "low stakes" affairs. Lots of policy is a political question, down to matters of war and peace. This is what government is about, locally to nationally. You rather us not have basic republican government.

I'd love to live in a country that wasn't one election away from having basic civil liberties abolished because Democrats responded to the Supreme court saying the couldn't censor political speech or ban guns with threats of Court packing. And Court packing only takes a cooperative President and a bare majority in Congress.

There is no chance of "banning guns" when the presumptive Democratic pro tempore in the Senate has a shooting range on his property. The issue is certain gun regulations and "well regulated militia" etc. is not absolute.

The right to speech is not absolute. The issue harped upon is campaign finance regulations, including regulating how corporate and union (which leans liberal) should pay for certain types of speech during campaigns. As was allowed historically. For those who care about that.

Meanwhile, Republicans like Trump want to sue people criticism their campaigns in the wrong way via libel suits by their campaigns, block people on Twitter while using it for official announcements, sic the government on rivals like the head of Amazon etc. They want to require reproductive centers to provide religious laden ideological cant. They want to ban certain type of sexual materials. etc.

One can go on. Republicans want to force woman to carry pregnancies to term. Now, this is not as much involuntary servitude as serving black people, to some, but it is not a minor thing. They wanted to deny same sex marriage, including blocking legislatures from voting on it. Some even want to ban sex toys. And, let's not go into the average conservative criminal justice policy.

This is just to balance your usual slanted Republican talking points. Judicial review and picking people who appoint/confirm judges is part of the mix. And, overall, liberty is doing a fairly good job. But, elections matter.

We can't rely on the checks, because whether or not there should be checks is the exact thing we're fighting over, and you're on the side fighting to destroy all the checks. Fighting to render government all powerful.

Checks like having courts stop illicit policies that you are the one calling foul over since your guy is being restrained? Can you try a bit harder? You disagree on certain checks while supporting others. Standard stuff from Hamilton v. Madison.

Fighting to make every election for the whole ball of wax, because you're incapable of admitting anything you want is off the table.

This is b.s. as has been repeatedly noted though re-electing a spectacularly horrible resident of the White House makes this election significantly more important than many.
 

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Brett, I know you aren't noted for logical consistency, but every single thing you said in your last comment is a justification for not having any vote count more than others. Perhaps you can't see that.

And the idea that Trump is interested in protecting anyone's constitutional rights is so laughable you can't seriously mean it. Unless, of course, you mean it in the sense George Orwell meant in Animal Farm: "All animals are equal, but some animals are more equal than others."

 

It was explained, including by historians, that blocking Garland w/o even a hearing (Fortas, by a Congress with segregationist Dems and Republicans holding the balance of power, got a hearing), was not typical.

As to court packing, which I personally am wary about, however some want that, it is unclear that is even on the table (looking at campaign platforms as a whole) now. The fact you can find some minority who even suggest it notwithstanding.

The idea that the Supreme Court is unbalanced (it would have been even more so w/o liberal Republican appointees like Stevens and Souter) is far from unreasonable. And, over our history, the Supreme Court was not off limits.

But, even now, after the Republicans basically packed the Court by denying even a hearing, that is more liberal hope and conservative fear than reality.
 

We have to remember that with Brett, or any Republican these days, it's always projection. They know that they want to eliminate rights and oppress people; it's their whole raison d'etre. They expect the Dems to do the equivalent because that's what they'd do if they could.

And that's why they need the EC. Not because it's principled, because it never was. Not because it works, because it never has. But because the only contest they see is one for power.
 

"There is no chance of "banning guns" when the presumptive Democratic pro tempore in the Senate has a shooting range on his property. The issue is certain gun regulations and "well regulated militia" etc. is not absolute."

In the Heller case, the Supreme court overturned literally the most restrictive gun law in the entire country. You could have a gun if you'd already owned one when they passed the law, and you kept it disassembled in a safe. Or if the DC government thought you were special. Not otherwise. And the Democratic party went NUTS.

You can't make that not have happened. You can't erase that we know what you mean when you say you only want reasonable gun control. You can't enforce amnesia no matter how much you try.

No, I grant you, the Democratic party doesn't want to disarm the Nomekleura. Just the proles. Too bad the proles get to vote, too.
 

Most states have gun rights in their own constitutions.

Both Democrats and Republicans protect gun rights nation-wide. Congress repeatedly stated in federal regulation, with Democratic support, that there was a right to own firearms. You can't make that not true. You can't erase that.

The ability of a few remaining areas, as a resident of South Carolina it is unclear why the ability of local rule in D.C. is a grave threat to you exactly, is what remained. Heller/McDonald -- which loads of Democrats support without much problem -- called that into question. So, e.g., Heller overturned, without nearly no discussion, a safety lock law. In the nation's capitol. That concerned some people.

The ability of a few cities to strongly regulate handguns and have safe storage or safety lock provisions (even the dissent in Heller left open an exception for self-defense) is not "ban guns" material. And, even there, even with conservative courts from the 1970s, Heller didn't come around until when exactly?

How is this really the fault of "Democrats"? If Rehnquist, Burger, Powell et. al. won't stop that sort of thing, maybe stop making everything about "the Left."
 

"as a resident of South Carolina it is unclear why the ability of local rule in D.C. is a grave threat to you exactly, is what remained."

Because the Heller case was purely a case concerning federal rights, and if it had gone the other way, the 2nd amendment would have functionally ceased to exist for the entire country.

Sure, South Carolina would have been free to have more lenient gun laws. And that would have meant nothing when the federal government decided to regulate guns itself, anyway.

And because there is no such thing as "local option" where constitutional rights are concerned.

"How is this really the fault of "Democrats"?"

The Democratic party's reaction to the Heller and McDonald cases reveals what actually lies behind all the protestations about not being hostile to gun ownership. Why would any politician who wasn't hostile to 2nd amendment rights find the Heller decision in any way objectionable? It literally was the most restrictive gun law in the entire country; If DC wasn't over the line, then there isn't a line to be over.
 

Because the Heller case was purely a case concerning federal rights, and if it had gone the other way, the 2nd amendment would have functionally ceased to exist for the entire country.

The Heller case was specifically about the right of D.C., specially covered by the Constitution, to regulate itself. Again, how this was a grave threat to you is unclear. If the Supreme Court did not take the case, following existing practice in place for a long time, the 2A would not have ceased to exist. Congress repeatedly over the years, with Democratic support, in legislation specifically granted an individual right to own firearms. The result in Heller (though Kavanaugh might push the line some) allows for regulations of the sort Congress would likely pass.

Sure, South Carolina would have been free to have more lenient gun laws. And that would have meant nothing when the federal government decided to regulate guns itself, anyway.

The feds have regulated guns for years now. Each and every time, including in the 1930s, 1960s and 1980s, they assumed an individual rights view of the 2A. Even Scalia assumed some power to ban so-called "assault weapons" of some type. So, the limited ban (guns rights like speech rights not absolute) that lapsed in the 1990s would probably be allowed under Heller. This might be why Brett considered Heller thin gruel and thinks Thomas is a faint hearted originalist.

And because there is no such thing as "local option" where constitutional rights are concerned.

First, it goes to the breadth of the alleged problem which is the bottom line issue in this conversation. Second, some things are given to local governments to determine, include the details of various things where there is some federal floor. Obscenity. Voting rights. And, under 2A, some discretion over the militia.

The Democratic party's reaction to the Heller and McDonald cases reveals what actually lies behind all the protestations about not being hostile to gun ownership.

The party's reaction ultimately is that they accept an individual right own firearms down to the likes of AOC but some were upset at the implications of a ruling that struck down a safety lock law with handwave reasoning. But, loads of Democrats are quite friendly to gun rights, in part because unlike your b.s. argument, they need to and obtain votes from gun friendly areas, including non-urban ones.

Why would any politician who wasn't hostile to 2nd amendment rights find the Heller decision in any way objectionable? It literally was the most restrictive gun law in the entire country; If DC wasn't over the line, then there isn't a line to be over.

The Supreme Court did not just decide this one law -- it opened up a range of laws to federal court scrutiny with unclear implications. As things went, as a whole, most laws were upheld, so Democrats over and over and over again accept Heller. Especially in certain states. But, the ruling was open-ended and if a safety lock law could be struck down with so little discussion without even sending it back to apply a new constitutional rule, who knows what would happen.

So, this fear of "gun bans" is basically hysteria.
 

Note that it is "D.C. v. Heller."

The Supreme Court could have simply let the lower court stand or at most wrote a narrow decision saying such an allegedly broad law was disallowed. So, e.g., the Heller dissent granted a self-defense exception to the law.

Instead, we have an open-ended ruling that led to McDonald v. Chicago. And, yes, a few places opposed that, since at least parts of the state (cf. NYC with upstate NY) wanted to regulate more. This reflected long historical practice, such as simple bans in various cities in the 19th Century.

Even there, that was a limited matter -- the states in question were outliers, the rest having stronger gun rights in place, including those with Democratic control. And, that's enough of this O/T bit and I see SL has a new post.
 

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