Balkinization  

Wednesday, September 16, 2020

Cock-eyed Optimist Meets Chicken Little: Jack Balkin on the American Future

Sandy Levinson

For the Symposium on Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020). 

 Given that we are close friends and the co-authors of some twenty articles and a book, Democracy and Dysfunction, it is not surprising that I think very highly, and agree with much of, Jack Balkin’s new book The Cycles of Constitutional Time.  Perhaps it is relevant that I read it in two sittings; it is a real page-turner, written with brio as Jack presents a remarkably comprehensive overview of what he discerns as various cycles in American politics (importantly including the Supreme Court and the development of constitutional doctrine) from literally the beginning of the new national government in 1789 to the present.  It is a book to be savored, to learn from, and, inevitably, to argue with.

For me, the central question is whether Jack ultimately has a tragic or a comic view of our constitutional saga.  Will there be bodies strewn all over the stage at the end of the play, or will there be whatever the modern equivalent of a “constitutional marriage” with smiles all around and stories as to how the now-happy country surmounted a variety of challenges and travails to achieve their happy ending?  Jack, I believe, has an ultimately comedic view.  He forthrightly states, both at the beginning of the book and then again at the end, that for all of the justified depression we might feel at the present moment about the health of our constitutional order—as I, for example, have posted suggestions that the preferable alternative to the incipient civil war is peaceful dissolution of the United States—it is ultimately only the darkness before a brighter dawn.  It might take quite a while for us to dig our way out of the multiple problems facing us today, including what I regard his most important analytical contribution, the notion of “constitutional rot” (about which more anon), but do not lose hope.  Thus the concluding words of the book:

 

The problems of American democracy will not be cured overnight, or even in a decade.  Constitutional rot is a stubborn condition; emerging from it will be a painful process.  The good news is that the cycles of constitutional time are slowly turning.  Politics is re-forming.  The elements of renewal are available to us, if we have the courage to use them.

 

            I am less optimistic.  Within our partnership, which has been central to my intellectual life for at least three decades, I suppose I have become Chicken Little to his sometimes cockeyed optimist.  So my contribution to this symposium, beyond urging everyone to read and grapple with a really interesting, fully accessible, meditation on the past and current state of American politics, is to cast some doubt on his relative optimism.  Given his time horizon, he is not really trying to reassure me that things will necessarily get better in my lifetime, as I am completing my eighth decade of life, but, rather, that my children, probably, and, most certainly, my grandchildren, may have reason to look forward to sunnier futures (defined, among other ways, by the return to more-or-less hegemonic power, for at least a while, of the Democratic Party).  For obvious reasons, I hope that I am wrong and Jack is right.  However, I am not convinced, even if, as seems probable, Joe Biden becomes #46 in our line of presidents.  Will he lead the “transformation” that the United States desperately needs?  Will he, more particularly, take the lead in suggesting that we need a long-overdue national conversation about constitutional reform if we are serious about curing our “rot”?  The answer to both questions, I am afraid, is no. 

            So let’s talk about “rot.”  What is it?  “It is the decay of the features of a constitutional system that maintain it both as a democracy and as republic.”  A “democracy” presumably is defined by the degree of a political system to the actual preferences of the demos, sometimes with reference to the “median voter.”  To the degree that a system in fact honors the preferences of others, who will invariably be only a minority of the overall public, then it is not a “democracy.”  And Jack presents good reason to believe that we are indeed in such a situation, where we live far more in an “oligarchy” where money not only talks but screams with delight as the wishes of the donor class are translated into concrete political victories.  This is especially notable in Republican administrations, as with the obscenity of the Trump “tax cut,” but also, if truth be known, in the more-or-less “neo-liberal” administrations of both Bill Clinton and Barack Obama, where the well-off became even better off even if there were also some efforts, as with the Earned Income Tax Credit or Obamacare, to pay at least some attention to the plight of those seen by Mitt Romney in 2012 as “the takers” rather than the “makers” who deserved to hoard any economic gains.  Of course, there is the reality that the Constitution was designed by people who were profoundly antagonistic to the notion of “democracy” inasmuch as that required some genuine faith in the capacity of ordinary people to engage in what Federalist 1 described as “reflection and choice” about how we should in fact be governed.  Inasmuch as the Framers did whatever they could to assure that we would live within the confines of a significantly “undemocratic Constitution,” then it’s not clear what it means to say that our present situation represents a “decay” rather than, for some, at least, the realization of their hopes. 

 

            But Jack is also concerned about the health of what the Constitution specifies as our “Republican Form of Government.”  What does this mean?  “A republic,” he writes, “is more than a representative form of government.  It is a joint enterprise by citizens and their representatives to pursue and promote the public good.”  It requires an internal set of dispositions, where people are genuinely willing and able to subordinate their self-interest to pursuit instead of “the public good.”  One is reminded of 17th-century voters’ oaths where the members of the community pledged to think only of what would be best for the community at large rather than their own particular interests.  (This is the deep meaning of the fact, for example, that four of the American states—Massachusetts, Virginia, Pennsylvania, and Kentucky (originally, of course, part of Virginia)—styled themselves as “commonwealths,” i.e., communities organized around the seeking of a common good.”)  Constitutional rot occurs when “public servants are increasingly diverted into the pursuit of their own wealth, or when they are increasingly diverted into serving the interest of a relatively small number of very powerful individuals,” as against being committed to “the public good.” 

 

            In my book Framed, I delineated what I called the “Madisonian anxiety,” spelled out most clearly in the famed Federalist 10, where Madison acknowledged, as the Protestant he was, that we are all ineluctably selfish and thus prone to prefer our own interests, whether economic gain or the triumph of our own religious sectarianism  over those who are classified as “heretics” or otherwise “ungodly.”  Was there a solution?  Is a “republican” society organized around the quest for a common good that will be sought by suitably socialized citizens destined to become a distinctly more “liberal” order that accepts the priority of individual interests and the psychology associated with self-seeking (ultimately defined so memorably by Oliver Wendell Holmes in terms of his completely egoistic “bad man” concerned only with maximizing individual utilities)?  I read Madison as offering the quite implausible hope that the new Constitution can endure as a “republican” order, basically by limiting the power of “we the people”; he proudly states in Federalist 63 that a central feature of the new constitutional order is that all governance will be done exclusively through “representatives” and none whatsoever by “the people” themselves. 

 

Why should one expect this to alleviate his anxiety?  It is because, for reasons left almost completely unexplained, he believes that voters for, say, the House of Representatives, the one branch of the national government in which “the people” will play any role at all, will vote for enlightened elites who will use their powers not to pursue the interests of their selfish constituents, but rather to achieve the “public good.”  The Senate, of course, was to be selected by state legislatures, and the president by electors who, we were solemnly promised in Federalist 68, would protect us against demagogues by using their discretion to select only truly trustworthy leaders.  (The Supreme Court, of course, paid absolutely no attention to Hamilton’s assurances in deciding in July that electors could actually be turned into mindless minions of whoever voted them into office, the one example at the national level of fully “instructed” delegates instead of at least partial “trustees” for the public good.)

 

            So what’s the problem, even beyond the empirical failure of Madison’s (and Hamilton’s) descriptions of the system they helped to design in Philadelphia to operate as they suggested it would?  The more serious problem, in a way, altogether relevant to Jack’s really fine book, is our difficulty today in supplying any convincing meaning to the term “public good” (save in the economists’ sense of a particular kind of good that cannot in fact be distributed through a market price because there is no way to limit beneficiaries of, say, a dam or a national defense system only to those who pay a relevant fee).  The Democratic Party in particular has been based for at least the past 75 years on what came to be described as “interest-group liberalism,” a collection of groups, sometimes in conflict with one another—the famed “big tent” until the 1960s of white Southern segregationists and urban Black politicians like Adam Clayton Powell—who would, nonetheless, all receive the benefits accruing from various “tax and spend” programs endorsed by the New Deal and Democratic presidents who governed in Roosevelt’s wake.  In his famed Preface to Democratic Theory, the great political scientist Robert Dahl ridiculed the notion of a public interest, replacing it by drawing our attention to the fact that any political party is necessarily an uneasy coalition of groups pursuing their own welfare.  Perhaps if one shares the optimism of Bernard Mandeville’s Fable of the Bees or Adam Smith's notion of “the invisible hand,” then it will turn out, as Mandeville famously asserted, that out of the pursuit of private vice will magically emerge “the public benefit.”  To put it mildly, I doubt that many of Jack’s likely readers, whether democrats or Democrats, are so optimistic. 

 

            A key book at the end of the 1960s was Cornell political scientist Ted Lowi’s The End of Liberalism, where he castigated the shallow political theory underlying interest group liberalism.  And, among other things, he castigated its implementation, so to speak, via open-ended delegation to the executive branch.  Craven legislators could tell their constituents that they had supported programs in their interest while, at the same time, leaving it up to more-or-less unaccountable administrators to make the genuine discretionary decisions that could literally determine, on occasion, who shall live and who shall die.  He suggested that we had transitioned to a distinctly different form of “republic,” and he was not happy about it.  But both mainstream political science and legal academics agreed that almost nothing useful could actually be said about what governance in “the public good” might actually look like.  Or, should we seek guidance, some legal academics suggested, it would be in the wisdom of the Warren Court.  Even Alexander Bickel, after all, before he lost his faith in the judiciary, commended the judiciary as the privileged enunciator of our “fundamental values” and, therefore, what presumably united us as a singular people with certain transcendent commitments. 

 

            An exceptionally interesting chapter, about the cycles of judicial time, draws a clear contrast between the relative “depolarization” that existed in the otherwise disorderly 1960s and the belief, now regarded as near-delusionary, that elite lawyers and judges, especially if trained in the “legal process” school of Henry Hart and Albert Sachs—and exported to Yale by Bickel—could achieve “settlement” of the issues that might otherwise appear to be insoluble, including race relations (see Brown) or what exactly “representative government” might really entail (see Baker v. Carr and then Reynolds v. Sims).  And even the sexual revolution could be handed, as with Griswold and then Roe.  Presumably serious people, two of them trained at Harvard, the third at Stanford, could write in their plurality opinion in Casey (1992) that the function of the Supreme Court was to resolve basic conflicts and the function of the public at large was to accept the Court as, in its own words going back to Cooper v. Aaron (1958) the “ultimate interpreter” of the Constitution.  To adopt the language from my book Constitutional Faith, the Court presented a “catholic” (note the little-c) view of itself as the equivalent of the Vatican so far as the Constitution was concerned.  


              Today, almost no one takes seriously this self-presentation of the Court, not least because its present majority is Catholic—a reality almost literally inconceivable when I was in graduate school many decades ago and had just experienced John Kennedy’s reassuring a Baptist audience in Houston that his religion was irrelevant to understanding him as a person or political leader (which, perhaps, was empirically correct).  And the Catholic identity of certain justices is not deemed a mere factoid, similar to having been born, as Ruth Ginsburg was, in Brooklyn, but, rather, genuinely constitutive of how the judges in question look at the world, especially and most obviously with regard to such “culture-war” issues as abortion and the willingness to include non-heterosexuals as full members of the American constitutional community.  But it would be a mistake to reduce the current majority to their religious identities.  They are also strongly Republican (capital R), fully committed to the general world-view that was associated at least with the pre-Trump Republican Party.  As Jack well notes, every Republican appointee since David Souter—partly as a reaction to the Republican disappointment about Souter’s subsequent career on the Court—has been a strong “movement” conservative Republican, especially, of course, the Federalist- and Heritage-vetted Neil Gorsuch and Brett Kavanaugh.  And it is fair to say that Biden, should he have the opportunity, will be strongly expected to pick, as successors to the retiring Ginsburg and Breyer, strong liberals who might well receive votes in the Senate only from Democrats and the unanimous opposition of Republicans.  Concomitantly, if Biden is faced with a Republican Senate, it is not unthinkable that no one will replace Ginsburg or Breyer.  The ruthless dismissal of Merrick Garland’s nomination by Mitch McConnell will simply become a precedent for Supreme Court appointments in the contemporary political world.

 

The contemporary Court, like the contemporary legal profession and, of course, the country at large, is very much divided into different ideological teams.  This is what “polarization,” a major theme of the book, is all about.  Only devoted partisans of one of the teams believes that their opponents are “heretics,” willfully rejecting the obviously true doctrines, whether of “originalism” or “living constitutionalism,” in favor of trying to impose their narrow “political” objectives.  This is to assume the sharp separation of law and politics that Jack rightly ridicules.  Instead, I think it’s fair to say that, like Mark Tushnet in his own recent book Taking Back the Constitution, Jack does not view Republican judges as “heretics,” but, instead, as skilled professionals who happen to have an unfortunate, albeit plausible, view of what the Constitution (or statutory interpretation) means.  To describe Chief Justice Roberts and his Republican cohort, as I sometimes have done, as “running dogs of the capitalist empire,” is for better or worse, to suggest that they are self-consciously asking what they can do to enhance the powers of capital against, say, consumers injured by corporate malfeasance, but, rather, that they have incorporated into their understanding of what is best for America—and the “true meaning” of the Constitution—Republican nostrums about the glories of the so-called “free market” and concomitant notions of what it means to “secure the blessings of liberty” at the present time.  Neither Justices Roberts nor Ginsburg need be viewed as “insincere” in their beliefs about what fidelity to their constitutional oath entails, and nothing is gained by traducing either of them, as Justice Scalia was sometimes prone to do, as not “behaving like judges” because they come to different conclusions as to what the Constitution requires.  But such “civility” toward one’s opponents scarcely resolves the political and jurisprudential dilemmas that Jack limns. 

 

            In fact, one of the surprising features of the book is his modification of one of the most important of our co-authored essays, a 2001 article in the Virginia Law Review  in which we tried to explain how “constitutional revolutions” operate.  In that essay we proffered the distinction between “high politics” and “low politics.”  We suggested, as had, for example, Felix Frankfurter in an essay in the International Encyclopedia of the Social Sciences in the 1930s, that all judges (and lawyers), without exception, carried in their heads conceptions of what sorts of policies or approaches to law would in fact best serve “the public good.”  They would, not surprisingly, always interpret any ambiguous laws in ways that would best achieve the results dictated by “high politics.”  It would be extraordinarily if they did anything else. On the other hand, “low politics” was concern for what would serve the interests of a judge’s political party or political associates in the next election.  We suggested that “low politics” was rarely present at the level of the Supreme Court, though this probably wasn’t true if one looked at local courts in Chicago, Louisiana, or many other state courts. 

 

Jack now suggests, however, that the distinction might have outlived its use-by date, precisely because it is getting ever more difficult to separate the two realms.  When John Roberts, for example, systematically votes to uphold what Democrats have no trouble defining as “voter suppression” efforts by, say, Alabama (Shelby County) or declares that ruthless partisan gerrymanders are non-justiciable (Rucho), is he manifesting a “high” political vision or instead serving as an agent of the GOP that placed him in office to do whatever he can to maintain them in power through thick and thin?  This doesn’t require that he be consciously thinking of what will serve GOP interests, only that he is, from “our” point of view, recklessly indifferent to the consequences for the American polity of adopting his readings of the Constitution because, overall, they best fit what we formerly would have described as (only) his “high politics.”  But the crucial problem, as Jack spells out, is that an older generation, influenced by footnote four of Carolene Products and culminating in John Hart Ely’s 1980 Democracy and Distrust, accepted wide-ranging decision-making powers on the part of legislatures and even executives in return for a promise that the Court would monitor the procedures by which officials were selected.  One should be expected to be a “good loser” in the ordinary political process if, in fact, the process was demonstrably fair (or at least fair enough) to avoid being described, in contemporary parlance, as “rigged.”  But recent decisions on campaign finance, gerrymandering, and voter suppression have removed any reason to believe that the American electoral system in fact meets standards of “fairness.”  Should Donald Trump be “re-elected” by a narrow electoral vote margin while losing the popular vote by, say, five to ten million votes, as is currently projected, the only proper response is rioting in the streets, not calmly reassuring one another to “wait ‘til next time, in 2024.” 

 

Neither Jack nor devotees of Balkinization will be surprised to read that I wish his diagnosis of our “constitutional rot” had included more attention to the Constitution itself.  Might it be part of the rot, as against the potential cure?  For me, of course, that has become a rhetorical question.  The closest Jack comes to recognizing this possibility is near the very end of the book, when he acknowledges that the United States Senate is organized in such a way that it places what has become the core Democratic constituency at a decided disadvantage.  This means that we may face a future of “only modest, slow change, which will often be frustrating.” “Obstacles” like the Senate “will make it harder to chip away at the causes of constitutional rot.”  Well, yes.  And for me this portends further tragedy and the ever-growing, and fully justified, disillusionment with the political system foisted on us in 1787.  People are literally dying, or faced with the prospect of miserable futures, in part because of the obvious problems with the American political system.  At what point will enough people consider what is happening to them a sufficiently “long train of abuses” that they will not simply wait for the happy ending that Jack wants to promise them/us?  This is most certainly not to say that I can envision a more plausible comedic ending. 

 

As with Four Threats, by Suzanne Mettler and Robert Lieberman, which I recently reviewed on Balkinization, an often brilliant analysis of our current dire situation concludes with some hopeful reassurance that all is not lost.  “We” survived the Black Plague, various depressions, and two world wars in the 20th century; this, too, will pass.  The sky is not really falling or, even if so at the present moment, it will stop and our descendants will be able to sing “Happy Days are Hear Again.”  I can only say, I hope so, but at this moment I continue to look up at the sky with trepidation.  I am inclined to believe Edgar, from Act IV of King Lear: “The worst is not/ So long as we can say ‘This is the worst.’” 

 

 

 


Comments:

For all that I've disputed some of your views here on occasion (cough, *secession*, cough), I'm much closer to you than to Prof. Balkin. I'm not at all a fan of the theory of "constitutional cycles", any more than I was of, say, Schlesinger's Cycles of American History. We should ditch the idea of "cycles" entirely; the issues are whether and how we can move forward from a point where path dependence has seemingly boxed us into decline.

There are two items in your post which really resonated with me. One was your mention of John Hart Ely and his theory of the role of the judiciary. As I've indicated here several times, that's my own view and it's why I'm so upset at the partisan turn by the Court over the past 50 years. I can't see any path forward which fails to repair the courts, and yet I don't see any likelihood that even a Dem trifecta will do much about it.

The other was your mention of the Fable of the Bees. I was reading along with your discussion of Madison's theory thinking "Mandeville, Mandeville" and then of course you brought it up. The Framing itself took place right at the cusp separating the end of Classical Republicanism and the dawn of Classical Liberalism. Madison clearly saw the 2 as compatible: he thought a meritocracy would be more likely to identify the true "permanent and aggregate interests" -- we could probably even say the General Will, depending on how one interprets Rousseau -- out of the competing individual interests. It's impossible to say if he was right or not because no such system has ever existed. Today, at a low point for the idea of a "marketplace of interests leading to a general good", perhaps we're incapable of seeing a replacement.

But even an attempt to implement a "true" Madisonian system founders on the problem of the Senate (and the related problem of the EC), which has always been your best argument for the dysfunctional nature of the Constitution. It's here that I find myself cautiously pessimistic about the future. I just don't see a solution which would implement a defensible representative system, nor do I see any novel suggestions which would replace it. Prof. Balkin's "slow and painful progress" thus reads more like paralysis or maybe revolution, either to authoritarianism as with Trump or to an entire break with the existing Constitution.

One way or the other, though, I expect something more dramatic than just muddling by. Climate change alone will force our hand, even if we could somehow meliorate all the other problems that the past 40 years of conservative rule have worsened.
 


Interesting, although I strongly disagree with almost everything presented in that post. Just two issues right now:

Unfortunately, we like to criticize judges, but, doing so, by picking the best part (result) and ignoring, the more complicated and hectic part (reasoning). Non of them, recklessly or not, is indifferent in no way to nothing suggested by scholars. Reading the reasoning ( and comprehensively so) reveals, that every decision typically, is based upon:

law, constitutional principles, and jurisprudence. The fact that they may reach different or contradictory decisions, doesn't suggest, that any sort of higher or lower political calculus is involved here. From my experience, it is really rare to encounter, one scholar, who would really understand the ruling he deals with. Unfortunately so. I quote Justice Alito(speaking of faithless electors):

"We have to interpret the Constitution to mean what it means, regardless of the consequences"

Here:

https://www.npr.org/2020/05/13/851519564/justices-fear-chaos-if-electoral-college-delegates-have-free-rein

And, you write: "what is best for America" but, had to add: "as a whole" best for America. We do have that tendency, to confuse between, ideological decisions on one hand, and self interest on the other, and further: narrow personal self interest. Debates shall always exist of course. The parameters, is not the debate or disagreements. But, whether, one leader, is acting for the benefit of the US as a whole, or, for very narrow self interest.

Suppose:

That there is debate concerning immigration. Trump issued at the time the "Travel ban". Started to build the southern wall etc.... he is acting for the public and common good. Why? because he thinks that that is what is best for the US as a whole. Not best for the Republican party. This is not arbitrary and capricious policy. He claims that, those immigrants, are causing according to him, rise in criminality all over the US. But, this has to do, with the US as a whole.

On the other hand:

If he speaks in the phone, with the Ukrainian president, and suggests as alleged at the time, that he wouldn't grant him no hell of any financial aid, unless he would trigger investigation into the business of Biden there in Ukraine, then, he takes care of self interest, and narrow one as such (allegedly so). Personal (almost). And indeed, he has been impeached for that.

So, the issue of common good, is not at all problematic as presented here. In sum:

Taking care of the US as a whole (even if it is subjective) Vs. taking care of narrow personal/ political interest.

Thanks



 

I like the term "cautiously pessimistic" though it seems a bit too optimistic by definition. Back in the day, I argued for some of realistic optimism or some such thing. I think there is a sort of self-fulfilling product when you do things in a right frame of mind there. But, you have to be realistic about it.

Perhaps if one shares the optimism of Bernard Mandeville’s Fable of the Bees or Adam Smith's notion of “the invisible hand,” then it will turn out, as Mandeville famously asserted, that out of the pursuit of private vice will magically emerge “the public benefit.” To put it mildly, I doubt that many of Jack’s likely readers, whether democrats or Democrats, are so optimistic.

I was not aware of the fable of the bees concept though appreciate the reference. I did not read much Smith (whoever manages to weed thru hundreds of pages of such texts have my respect) but my understanding is that he and others do support regulation. It isn't invisible hand or such alone. As I recall, John Adams also said that personal drive and concern for personal success is a major influence in public office.

Anyway, again, there is too much here for me to really attack the comments of the post comprehensively. But, Mark's comments as usual are generally on point [as usual, any agreement does not include any comments that are wrong]. I do think we are at a point change has to be made. The lack of a constitutional amendment for fifty years (the 27A joker aside) is suggestive here.

Change has occurred since then though not all to the good. This includes the "bad flu" we are having and other things.
 

"attack" is not meant in a negative way ... means to comprehensively respond
 

"I like the term "cautiously pessimistic" though it seems a bit too optimistic by definition."

I was generally optimistic in 2008. Sadly, events since then have turned me into Eeyore.

"as usual, any agreement does not include any comments that are wrong"

Lol.


 

"sunnier futures (defined, among other ways, by the return to more-or-less hegemonic power, for at least a while, of the Democratic Party)."

Doesn't this very view encapsulate the present source of our problems? Defining the good in terms of our own side being in power, rather than in some neutral fashion that admits somebody else could legitimately prevail after persuading the electorate that their view of the good was superior? Democracy to function requires a commitment to accept that somebody else can legitimately win, and having won, legitimately rule, at least until the next election.

My own diagnosis is that the problem is the growth of federal power raising the stakes of elections. It's easy to accept that the democratic process will put people we disagree with in power, if the amount of power they're going to be in is minor. If every election brings with it the threat of society being "fundamentally transformed" in an exercise aimed at establishing facts on the ground no subsequent administration can reverse?

Politics inevitably becomes less civil with such high stakes. We are too heterogeneous to be united under such a powerful, intrusive government.
 

"Defining the good in terms of our own side being in power, rather than in some neutral fashion that admits somebody else could legitimately prevail after persuading the electorate that their view of the good was superior? Democracy to function requires a commitment to accept that somebody else can legitimately win, and having won, legitimately rule, at least until the next election."

It has to be defined that way because the current R party has no commitment to democracy and is in fact actively hostile to it. Talking about "persuasion" and "legitimate wins" makes no sense in that context. Unless and until the Rs make that commitment, then the actual governance can only come after being worked out by the party which has made it.
 

"We had to destroy the democracy in order to save it."

Pretty perverse view of democracy, where a commitment to it requires making sure that only one party has a chance of winning. Looking at it from the outside, can you see how, "If I win, I'll change the rules so that you can't ever win again until I feel like letting you." raises the stakes?
 

Democracy doesn't mean that it has to allow people who refuse to commit to democracy to control the system. That's a formula for the destruction of a democratic system. "Democracy" doesn't mean we can vote today to institute a dictatorship tomorrow. That's just a dictatorship. No, committing to democracy means a commitment to maintain a democratic process *into the future*. The current Rs won't make that commitment.

Also, you're confusing the process of democracy with the substance of policies. Conservative policies can still be adopted even in an effectively one-party system. In fact, they're quite likely to be adopted there -- Japan would be a good example. The policies are not the same as the process.

In the long run, single party systems are undesirable. It's much better to have competing parties, both (or all) of which respect the democratic process. As soon as the Rs demonstrate a commitment to that process, we should welcome them.
 

There is no need to "destroy democracy" here. Any ideal of the Democrats having full control for some limited period of time would come via democratic ends such as elections. It is not going to come via the Russia Revolution or carpet bombing.

Brett is not opposed to a lot of power in the federal government in a range of ways as seen by his support of various Trump policies he supports. He is not a libertarian or true antifederalist. As he at times himself noted, he is a conservative.

As to concern about expansion of power, we had a civil war before the modern state of the 20th Century formed. More power there does make government more important though it doesn't obligate the current state of the federal government. Certain choices were made there, influenced by specific things such as race, religion etc. (See, e.g., Sarah Posner's "Unholy" book).

Democracy to function requires a commitment to accept that somebody else can legitimately win, and having won, legitimately rule, at least until the next election.

People have specifically been against Trump (though he is not out of left field, ha ha, but is a purer form of something around for a while -- see again, Sarah Posner) because he specifically has had problems. This includes, per the Mueller Report and thousands of pages of Senate (controlled by Republicans) intel reports, involvement with the Russians in the 2016 elections.

Republicans have repeatedly been accepted as legitimately winning. People aren't out there saying the garden variety Republican can't "win" or "rule" etc. generally here. But, though a Trump supporter is not likely to see it, there can be specific problems with Trump and others as well as not structural as well as general problems with their party. If a party is so bad, including aiding and abetting Trump and his crew in a myriad amount of ways even while some of them admit he is a problem, yes, it might be time for them to have a major loss at the polls.

Isn't that sort of what democracy counsels? Bad conduct in office warrants a loss? Or, is it that the rule doesn't apply under Trump law?



 

I guess I should make it clear that I'm not advocating a law against Rs or anything like that, any more than I think there should be such a law barring Nazis or Communists. I'm advocating that the voters simply refuse to vote for Rs unless and until they show a willingness to comply with the democratic process. In addition to that, I'm in favor of democratizing reforms such as voting rights and anti-gerrymandering rules, both of which probably require court reform in order to be implemented. Instituting those reforms would, I'm confident, mean that the Rs are far less likely to win elections until they demonstrate a willingness to abide by democratic norms, as is the case here in CA.
 

"Democracy doesn't mean that it has to allow people who refuse to commit to democracy to control the system."

But it's not like you can point to a plank in the Republican platform that says, "We refuse to commit to democracy!" Rather, you've got a disagreement with them about how democracy works, and interpret not agreeing with you as a rejection of "democracy", rather than a rejection of how Democrats would like democracy to work.

It's not like Republicans don't have beefs with Democrats on that score. You're remarkably casual about election security, for instance. California has legalized ballot harvesting, a practice rightfully outlawed in most states. You seem to have a positive aversion to cleaning voter rolls.

That's as hostile to democracy as Republicans feeble "vote suppression" efforts, which generally are just how Democrats characterize any effort to have more election security than they want.
 

You're mis-stating the Dem position and the basic principles. Dems are fully aware of issues of election security. They just demand that there be actual evidence of a material impact on the election before implementing stricter protections. Right now, there is no such evidence, and the little evidence that exists implicates the Rs (e.g., the NC ballot harvesting that caused the election to be thrown out).

But yes, the Dems have a stronger definition of democracy: it's that every adult citizen should have a full and fair opportunity to vote; that the only barriers to that vote should be those strictly necessary to run a fair process (see above); and that voting should be actively encouraged rather than discouraged as Rs have done repeatedly over time.

Which brings up your other point. The Rs don't need to have specific platform positions discouraging voting. Indeed, they don't have a platform at all this year. But we have a pattern and practice of many years to observe. Across the board -- at the local level, at the state level, in the legislatures, in the executives, and in the courts -- the Rs have regularly violated norms and implemented partisan hindrances to voting by Dems. Stop doing those things. Cooperate with Dems to create a truly majoritarian electoral process. Then we can talk about the Rs being ready to govern.
 

"Indeed, they don't have a platform at all this year."

Now, that's not quite true, though I understand it is the Democratic party talking point. Rather, they don't have a new platform this year, they just kept the old one in place. You make it sound like they got rid of it with no replacement.

Not really defending the choice, by the way: It looks to me like the RNC decided to ditch rewriting the platform in order to keep Trump from having any input into what would be in it, as would normally be the case with an incumbent President running for reelection.

But, in any case, I don't see you demonstrating I'm wrong: The GOP hasn't "rejected democracy", they've had the gall to disagree with the Democratic party about how a democracy should be run. Favoring a different balance of election security vs convenience than Democrats want.

Imagine that, parties in a democracy disagreeing. Gosh, that PROVES one of them has rejected Democracy, everybody knows democracy doesn't involve disagreements or distinct choices.
 

Across the board -- at the local level, at the state level, in the legislatures, in the executives, and in the courts -- the Rs have regularly violated norms and implemented partisan hindrances to voting by Dems.

And IIRC Brett has in the past said that he considers it legitimate to place obstacles in the path of voters for partisan purposes.
 

"The GOP hasn't "rejected democracy", they've had the gall to disagree with the Democratic party about how a democracy should be run."

No, they've yelled and screamed about issues with no empirical support. Support an argument empirically and then you'll have a talking point.
 

if you have some money to invest. you sould invest in real estate in turkey. Its very good opertunity at that time.Because Turkey giving the Citizenship by investing in real estate.
 

I’ve been reading numerous articles on this topic but found this one uniquely written. Thanks. Find US Lawyers.
 

"And IIRC Brett has in the past said that he considers it legitimate to place obstacles in the path of voters for partisan purposes."

Let's be blunt about this.

Republicans genuinely believe there's a lot of election fraud going on, that elections are not a uniquely honest segment of society. They also believe that Democrats commit most of it, and so see it as in their own partisan interest to do something about it. If they thought it was mostly committed by Republicans? They'd probably be much less interested in combating it, that's human nature.

And they draw perfectly reasonable conclusions from the fact that Democrats have no interest in combating election fraud even when presented with proof of Republicans committing it! Burglars have no interest in doors being locked, right? Embezzlers don't favor audits. And Democrats never agree to secure elections against fraud. The conclusion follows.

And, yes, Republicans think that modest obstacles to voting, the sort of mild inconveniences that any motivated person could easily overcome, will improve election outcomes, by weeding out the people too indifferent to voting to become informed voters. If they thought their own base were poorly motivated to vote, and would be the ones weeded out, this would probably change. Human nature again.

So, Republicans have legitimate reasons, which are aligned with self interest.

Democrats, too, at least in theory, can have legitimate reasons for thinking that election security is a bad idea, that voting should be done on the honor system. They claim that election fraud is extraordinarily rare, virtually never changes the outcome of elections. That it's a democratic value that every warm body should be allowed to vote, and if a warm body that's not legally entitled to vote does anyway, no harm, no foul. You probably even believe it!

And Democrats, too, take this stance at least in part because it aligns with their own interests.

It's quite natural that Republicans see Democratic motives for opposing election fraud measures as suspect, and their claims that it is rare mere pretext. Just as Democrats see Republican motives for advocating election security as suspect, and their claims to believe there is fraud to combat mere pretext.

So I don't take your accusation personally.

For my part, I'll have some interest in Democrats' complaints about how outrageous it is to inconvenience exercise of civil liberties like voting, when you act like you really believe that. When you stop trying to discourage (If not outright stop.) exercise of another civil right dear to my heart.

You're hypocrites, and you have no standing to be talking about how much of an outrage it is to throw obstacles in the way of exercising civil rights.
 

"Republicans genuinely believe there's a lot of election fraud going on"

No they don't. But even if they did, a "genuine" belief *in the absence of empirical evidence* does not deserve any response or justify any restrictions on a fundamental right.
 

I note you don't deny the accusation.


Republicans genuinely believe there's a lot of election fraud going on, that elections are not a uniquely honest segment of society.

And yet they have no evidence whatsoever of this. Mark asks that Republicans commit to democracy. I ask that they commit to reality. In this, as in so many other areas, they put unfounded, often demonstrably false, beliefs above facts.

They also believe that Democrats commit most of it, and so see it as in their own partisan interest to do something about it.

Because Republican politicians are a uniquely honest segment of society? Really? The only recent major vote fraud attempt was perpetrated by Republicans.

Republicans think that modest obstacles to voting, the sort of mild inconveniences that any motivated person could easily overcome, will improve election outcomes, by weeding out the people too indifferent to voting to become informed voters.

Informed voters? First, if we weeded out informed voters Trump would get no votes at all.

Modest obstacles? Like having to stand in line for hours, on a workday, because Republicans set up obstacles to mail-in ballots, because there are not enough voting places to easily accommodate voters quickly, because Republicans cut back on early voting, because it's hard for some people to get the time to acquire the documentation Republicans want to insist on?

Note that it was the RNC that was forced to enter a consent decree agreeing not to engage in voter caging and the like. The great vote fraud grifter Kobach has even bragged about his efforts on this line.

So no, I don't buy the great concern for election security, or rhe integrity of Republicans.

That it's a democratic value that every warm body should be allowed to vote, and if a warm body that's not legally entitled to vote does anyway, no harm, no foul. You probably even believe it!

Yeah. I think it's a democratic value that every warm body legally entitled to vote should be allowed to. The notion of stopping 'uninformed" voters is absurd. What test do you propose to apply? Here's one: Anyone who gets the bulk of their news from Fox is presumed to be not only uninformed but misinformed, and barred from voting. That's a lot better indicator than whether someone can deal with the bureaucracy around getting an ID that you trust.
 

"Modest obstacles? Like having to stand in line for hours, on a workday, because Republicans set up obstacles to mail-in ballots, because there are not enough voting places to easily accommodate voters quickly, because Republicans cut back on early voting, because it's hard for some people to get the time to acquire the documentation Republicans want to insist on?"

For my part, I'll have some interest in Democrats' complaints about how outrageous it is to inconvenience exercise of civil liberties like voting, when you act like you really believe that.

I meant that, you know. You know my price for caring, pay it or I don't care what you say.

"because Republicans cut back on early voting,"

LOL! How long did NY have no early voting at all, absentee ballots available only for cause, and Democrats didn't give a damn, because they already had that state sewn up? Let NC reduce early voting to "just" several weeks, while having absentee ballots available without cause, and you freak. Because THAT state you don't have sewn up. Mote, meet beam.

You're hypocrites. It's all self interest behind a mask of principle.
Both parties have excuses for what they do. Both parties largely believe their own excuses. You want to demand principle of Republicans, demonstrate some yourselves.
 

Brett, you keep using the word "hypocrite" -- and I don't think you know what it means.

When you accuse someone of hypocrisy, you really ought to say what they are doing that they are denying others. That is hypocritical.

But saying that everybody who is eligible ought to be able to vote without having to jump through hoops is not hypocritical.

Just because they believe that would benefit the policies they favor, again, that is not hypocritical. Self-interest is not hypocrisy.

Just because early voting was disfavored at one time by a lot of Democratic party strongholds (because, at the time, communication delays would allow people to vote in one place, then go somewhere else to vote again, which is no longer possible, thanks to technological advances) does not mean today's Democrats are required to fall in with your paranoia.

 

"When you accuse someone of hypocrisy, you really ought to say what they are doing that they are denying others. That is hypocritical."

To be specific, because you appear to be too much in denial about it to catch any subtle suggestions:

Voting is a civil right.

Owning a gun is a civil right.

I'll believe you think making the exercise of civil rights inconvenient is an outrage when you stop your assaults on the right to keep and bear arms.

Why should I think ID to vote is an outrage, when I have to undergo a background check to buy a gun? Why should I think having voting places spaced out a bit is an outrage, when cities conspire to exclude gun stores? Why should I think disenfranchising felons is an outrage, when you're cool with depriving misdemeanants of the right to keep and bear arms?

Right now, your position is, "Rights I like, and find politically advantageous, must be as convenient to exercise as possible! Rights I dislike should be taken away at the least excuse, and where exercise is permitted at all, subject to onerous regulation!"

You're hypocrites, and when you say civil rights should be easy to exercise, I know you don't mean it.

...

"Just because early voting was disfavored at one time by a lot of Democratic party strongholds (because, at the time, communication delays would allow people to vote in one place, then go somewhere else to vote again, which is no longer possible, thanks to technological advances) does not mean today's Democrats are required to fall in with your paranoia."

Ha ha.

"at one time" Say, when was it that NY instituted early voting and absentee ballots without cause? The 1950s? Why, no, unlike NC, NY still has absentee ballots available only for cause. And they got early voting LAST YEAR.

Yeah, everybody knows how primitive communications technologies were in 2018.

Hypocrite.

 

"I'll believe you think making the exercise of civil rights inconvenient is an outrage when you stop your assaults on the right to keep and bear arms."

Pure deflection. Voting and owning a gun are not even remotely similar in their potential risks.
 

How long did NY have no early voting at all, absentee ballots available only for cause, and Democrats didn't give a damn, because they already had that state sewn up? Let NC reduce early voting to "just" several weeks, while having absentee ballots available without cause, and you freak. Because THAT state you don't have sewn up. Mote, meet beam.

Sorry, but were Republicans agitating for early voting in NY? I missed it. And I don't get the criticism anyway. Do you think early voting in NY would have lessened the Democrats' share of the vote there? I doubt it.

As for NC, yeah. Because they cut back with the specific intent of reducing Black turnout "with almost surgical precision." If I were you I wouldn't be taking up the case of the NC GOP. They are a seriously anti-democratic group.

Anyway, as usual, it's all about guns with you. You're happy to stop people from voting until we all agree you can buy a nuclear bomb.
 

How the hell can cutting back early voting to just a few weeks significantly reduce turnout of a specific group, when that group has access to absentee ballots without cause? Are you suggesting that blacks lack agency, are just mindless automatons, who will not change how they vote in response to changes in law? Wow, that's pretty racist.

"Anyway, as usual, it's all about guns with you. You're happy to stop people from voting until we all agree you can buy a nuclear bomb."

"Pure deflection. Voting and owning a gun are not even remotely similar in their potential risks."

What's that you're saying? "It's OK to infringe civil liberties if I don't like them!"? Yeah, that's what I hear you saying. Message received loud and clear, right back at you.

You know my price for taking your complaints seriously. You're not willing to pay it, because on the supposed need to not get in the way of exercising civil liberties?

You're hypocrites.
 

Going to vote doesn't entail much of a risk of killing yourself or others -- at least, it didn't until COVID-19 and the insistence by those who don't think people should be allowed to vote weighed in against mail-in voting...

Originally, voting was vastly different than it has been for the life of everyone now living. To pretend that in-person voting was instituted to benefit one party or another is to ignore that history.

Would the country be a better place if everyone eligible voted (or was even allowed to vote)? People who lean Democratic will answer yes to that question in a large majority. Until the Republicans started losing the ability to compete in free elections, this was actually the goal of all parties.

Would the country be a better place if everyone eligible owned a gun? Anyone who answers that question in the affirmative is welcome to spend a week on the streets of Chicago -- with their gun prominently displayed.

Reductio ad absurdem.

If it is hypocritical to point out the fact that the primary reason Republicans want to restrict voting, and make it more difficult for entire classes of people is because those people tend to vote Democratic, then "hypocrisy" has lost all meaning. Accusing someone of it is merely a ploy, just like the attempt to say that pointing out racism is itself racist.



 

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Owning a gun and voting isn't the same thing.

One suggestion here is that there are multiple amendments on threats to voting while there is one involving guns and even there it was geared to a specific aspect. Voting is basic to republican government -- people vote for their leaders. Guns aren't quite as essential. Again, this is suggested by how much voting is mentioned in the Constitution (he notes on Constitution Day). Not only do you vote at the ballot box, but you vote on juries. Members of Congress vote. etc.

Guns are regulated differently than voting. Since they aren't the same thing. A specific vote isn't a lethal object in which handing it to someone who committed domestic violence is risky thing. It is begging the question to cry hypocrisy here as if it is the same thing. Not that the usual "Democrats are all anti-gun" business actually holds up in practice. The ACLU itself was against a gun provision that was seen as discriminatory.

Not that two wrongs would make a right. But, some people care more about guns than voting. Burdens on voting are handwaved and so forth. Not that the details hold up. People in New York supported early voting. Once Democrats had total control it was put in place. Absentee ballot w/o cause is more important now.

And, things like long lines -- I NEVER EVER had to wait more than a few minutes to vote -- are much less an issue here. Put aside, as Mark and others repeatedly have noted, the intent to various voting rules is particularly a problem. History plays out here, which is why certain areas (including in New York for specific purposes) is given higher scrutiny in the Voting Rights Act.

If one wants less rules for guns, such is a way to go, but voting is still basic to our system of government and burdens on it are wrong. And, yes, owning a gun is a fundamental right. People down to AOC grant that. The debate, except for a minority of the party [and, you can find conservatives, like Warren Burger in the past and a few conservative judges today, who dissent on the 2A too], is over proper rules.
 

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To take one talking point, to change the absentee rules in NY completely, you need to change the state constitution. As seen when constitutional rules were set up to block same sex couples, that can be hard to change. Meanwhile, a rule was passed to allow it for reasons of Covid-19, which is basically a temporary no cause rule.

It is easier to change the rules in other states. Put aside, again, the purpose and effect of certain rules are not the same. This isn't that complicated. Again, there is a wide support among liberals for wide absentee ballots. Divided government including more conservative members along the margins among the Democrats (some who were voted out) hold up widespread change there.

Ditto some old partisans who are okay with the system in place that benefits them. But, after complete Democratic control came in, major reforms were passed. More are likely over time, as seen in a place like California. So, a governor like Cuomo who played both sides and is not as completely liberal as someone else might be followed by a more liberal person.

How all of this really suggests hypocrisy is unclear. The reality of the matter is complex and again guns are not the same as voting.
 

They are both civil liberties, and your position on one is, "Ease of exercise has to be maximized, regardless of countervailing issues."

And your position on the other is "Bomb it from orbit, its the only way to be sure."

But, hypocrites gotta hypocrite. Suffice to say, I'm not listening to complaints about voting being made too hard from gun control advocates.
 

How the hell can cutting back early voting to just a few weeks significantly reduce turnout of a specific group, when that group has access to absentee ballots without cause?

Ask the guys in NC, because they sure thought it would happen.

And of course it doesn't even matter if they were wrong. The point is that's what their plan was.Pretty clearly anti-democratic.

So you do think that the 2A gives you the right to own a nuclear bomb?
 

They are both civil liberties, and your position on one is, "Ease of exercise has to be maximized, regardless of countervailing issues."


Well, regardless of manufactured countervailing issues.



 

"And they draw perfectly reasonable conclusions from the fact that Democrats have no interest in combating election fraud even when presented with proof of Republicans committing it! Burglars have no interest in doors being locked, right? Embezzlers don't favor audits. And Democrats never agree to secure elections against fraud. The conclusion follows."

Apart from the shoddy factuality of the premise (it wasn't Democrats who, for example, held up money for election cyber-security recently) this is spectacularly terrible reasoning. It's the typical pole vault jump to a conclusion made by paranoid extremists with laughable overconfidence in their argument (the conclusion follows!. I mean, Bircher Brett can't even *imagine* that, perhaps, Democrats think the few cases of Republican voter fraud *which they hear about nearly always in the wake of it being caught and punished* don't warrant any responses that would burden legitimate voters. What's amazing is that at some lizard level Bircher Brett seems dimly aware of the hypocrisy of his stance, since he brings up gun rights where the conservative argument has long been that no further gun restrictions are needed because existing ones are fine. I guess 'the conclusion follows' that conservatives opposition to further gun laws means they don't have any concern for crimes committed with guns...This is typical for our Birchers though.

Also, of course voting is a more important right than gun rights. Lots of countries lack a 2nd Amendment equivalent in any real form and yet reasonable people would have to declare those nations are free. Show me a nation where there is no right to vote that is not an authoritarian one.
 

Also, Bircher Brett pretty much concedes the point to Mark Field that Republicans aren't committed to democratic principles when he endorses making it harder for 'misinformed' people to vote. Democratic principles are about how by virtue of agreeing to live and be taxed under a government persons should have a say, 'misinformed' or not in that government, no government is legitimate save one with the consent of the governed. That's what America is supposed to be all about. Government must get the people's consent, it must prove itself to the people, not the other way around (you'd think an ostensible libertarian would see that).
 

"But, hypocrites gotta hypocrite. Suffice to say, I'm not listening to complaints about voting being made too hard from gun control advocates."

This reasoning is even worse. Different rights entail different things, the limits you think should exist regarding one right says little about how much you value another right (and that's apart from the fact that different reasonable interpretations about the scope of different rights can easily exist between well meaning reasonable persons).

Take the right to privacy that Alaska has in its state constitution. If I think that right doesn't cover, for example, the right to euthanasia that says little to nothing about how much I value and how broadly I think their right to, say, free exercise should be.
 

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Sandy: So let’s talk about “rot.” What is it? “It is the decay of the features of a constitutional system that maintain it both as a democracy and as republic.”

Under our Constitution as written, the federal government enjoyed limited powers divided between a bicameral legilslature, the POTUS and the judiciary, with the remaining powers (including a general police power) being expressly reserved to the states and the people, all of which are further limited by a enumerated and unenumerated rights belonging to the people. This is our republic.

"Constitutional rot" set in about a century ago when the progressive governments rubber stamped by progressive courts created a bureaucracy exercising absolute power, rewrote the Commerce Clause to create and effective federal general police power, then gutted much of the Bill of Rights, most especially protections of property and equal protection of the laws.

A “democracy” presumably is defined by the degree of a political system to the actual preferences of the demos, sometimes with reference to the “median voter.” To the degree that a system in fact honors the preferences of others, who will invariably be only a minority of the overall public, then it is not a “democracy.”

Our Constitution did not create a democracy and its democratic elements do not allow minority rule, but rather require an effective supermajority rule (the agreement of three proportional, geographic and hybrid elected entities) to enable our federal government to exercise any of its limited powers.

The same progressives / Democratic socialists who complain about the geographic features of our federal representative democracy as an assault on "democracy" (or more realistically capital D Democracy - rule by Democrats), hypocritically have no problem with an unelected and unaccountable bureaucracy exercising absolute power and performing the vast majority of actual governance. Progressives / Democratic socialists are instead frustrated their minority of the polity concentrated in the megalopolises and Capitol occasionally loses elections to a somewhat less progressive GOP establishment and cannot impose its will on the People as rapidly as it would prefer.

But Jack is also concerned about the health of what the Constitution specifies as our “Republican Form of Government.” What does this mean? “A republic,” he writes, “is more than a representative form of government. It is a joint enterprise by citizens and their representatives to pursue and promote the public good.”

The "public good" is an undefinable and aspirational concept. My "public good" of protecting our liberties and preventing people from harming one another is diametrically opposite from your belief the government should be directing nearly every aspect of our lives and acting as a mafia robbing Peter to pay off your preferred Pauls. The fact you and Jack thankfully do not get your way as often as you like is not an example of "constitutional rot."

Continued...
 

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An exceptionally interesting chapter, about the cycles of judicial time, draws a clear contrast between the relative “depolarization” that existed in the otherwise disorderly 1960s and the belief, now regarded as near-delusionary, that elite lawyers and judges, especially if trained in the “legal process” school of Henry Hart and Albert Sachs—and exported to Yale by Bickel—could achieve “settlement” of the issues that might otherwise appear to be insoluble...

The progressive concept of an "elite" judiciary rewriting the Constitution to secure progressive policy (of which I do not include finally enforcing the EPC against Democrat government racism) is a key component of our constitutional rot, paralleling the establishment of an equally unaccountable Absolute Bureaucracy. Such an "imperial judiciary" should be considered near-delusionary and utterly unacceptable to anyone actually concerned with "democracy."

When John Roberts, for example, systematically votes to uphold what Democrats have no trouble defining as “voter suppression” efforts by, say, Alabama (Shelby County) or declares that ruthless partisan gerrymanders are non-justiciable (Rucho)...

Yet another example of a hatred of actual democracy posing as a defense of generic "democracy." You prefer to have unelected "elite" courts, rather than the elected state legislatures empowered by the Constitution, district the House of Representatives for no other reason than the "elites" tend to be progressive and Democrat. You would also prefer to have an unelected "elite" bureaucracy rather than elected state legislatures decide state election law for a minority of states which have turned red for the same reasons.

As with Four Threats, by Suzanne Mettler and Robert Lieberman, which I recently reviewed on Balkinization, an often brilliant analysis of our current dire situation concludes with some hopeful reassurance that all is not lost. “We” survived the Black Plague, various depressions, and two world wars in the 20th century; this, too, will pass.

Hyperbole much? The government not imposing your preferred policies as quickly as you like is in no way akin to the Black Death or the industrial-scale slaughter of the two World Wars.

However, the socialist government you would like to impose, with collapsing productivity and population, can be as economically destructive as a world war. That is historical fact, not hyperbole.

 

You prefer to have unelected "elite" courts rather than the elected state legislatures empowered by the Constitution district the House of Representatives for no other reason than the elites tend to be progressive and Democrat. You would also prefer to have an unelected :elite" bureaucracy rather than elected state legislatures decide state election law for a minority of states which have turned red for the same reasons.

I confess not to holding these preferences, but to thinking the courts should step in when the methods you describe lead to seriously undemocratic results.

The obvious difficulty of gerrymandering is that majorities in the "elected state legislatures" have a strong incentive to entrench their own party in power, both in the state legislature and Congress. When they become so entrenched they are hardly representative of their electorates. One would think the courts would grasp the danger, rather than throwing up their hands in horror at the thought that a solution might involve arithmetic.

As for the VRA, yeah. I prefer to have a way to review state election law. It's not as if there is not an ample history of these laws disenfranchising minorities. To pretend the matter can safely be left strictly to the states is to ignore that history.

Shelby County was an uncommonly foolish decision. Roberts essentially ruled that taking when safeguards work there is no further need for them.
 

"then gutted much of the Bill of Rights, most especially protections of property and equal protection of the laws."

I'm not sure what's more funny, the idea that the Bill of Rights was 'gutted' about the same time it was incorporated to the states (it was largely irrelevant before that) or that our Bircher Bart thinks equal protection is in the Bill of Rights.

This is not a serious person, this is a partisan incoherent.

"a bureaucracy exercising absolute power"

No such bureaucracy exists in our nation. Congress can override our bureaucracy, so can the courts and of course different executives reverse the bureaucracy. Bircher Bart is being post-modernist in his abuse of language as usual.

Bircher Bart also confuses "impose its will on the People" with "consent of the governed."

"an "elite" judiciary rewriting the Constitution" This from a person who argues the word person in section 1 of the 14th Amendment which plainly is not the same as citizen morphs its meaning in section 2 because he doesn't like the Census consequence of that. Rewriting indeed.

"You prefer to have unelected "elite" courts,"

OK, he must be daydrinking those wine coolers again. The law passed by a vast majority of Congress and signed into law by the President was gutted by an elite court. He's in bizarro land now.

"Hyperbole much?"

This from a person who thinks the US=North Korea. The least self aware person in the world.
 

The obvious difficulty of gerrymandering is that majorities in the "elected state legislatures" have a strong incentive to entrench their own party in power.

Party preference is not hardwired in humans or geographically. Both parties need to take pages from Obama and Trump, who had and have no problem campaigning to appeal to the opposing party's base.

I prefer to have a way to review state election law.

Agreed. Justice has that power now. What the Supremes properly held unconstitutional was granting Justice pre-approval power over a minority of states. A majority of states would never have agreed to give Justice that kind of power over their elections.
 

They are both civil liberties, and your position on one is, "Ease of exercise has to be maximized, regardless of countervailing issues."

Focusing on me, the "regardless" is bullshit.

So, e.g., I don't support 16 year olds getting the right to vote. Rep. Pressley supported that. Some others do, citing a few teens who are activists that they appreciate. But, I think that is basically too young as a basic rule.

OTOH, since voting is a fundamental right that is as Mr. W. says particularly at the core of liberty, yes, I oppose limits unless they are clearly necessary. At the very least, e.g., I think once you get out of prison, you should have the right to vote. Unnecessary regulations that burden the right to vote should be avoided etc.

your position on the other is "Bomb it from orbit, its the only way to be sure."

The right to own a gun is also a fundamental right, at the very least under current law. Just what that means is unclear -- e.g., the right is less clear in public places or regarding certain types of guns (as Scalia and Roberts noted).

So, limits should be carefully justified per the nature of the right. So, e.g., background checks are appropriate, as two NRA supporters thought a few years back when trying to pass one in the Senate that was filibustered. OTOH, banning it to all who might have some sort of psychological condition is overbroad, especially if it is not done with proper procedural due process. Many other concerns also are cited, including unreasonable searches and seizures etc.

Likewise, the right to buy contraceptives is part of the right to privacy. Basic to choices of family life, marriage and so on that separate freedom from slavery. It's regulated. Purchasing a birth control pill, a drug, is different here than voting.

But, hypocrites gotta hypocrite. Suffice to say, I'm not listening to complaints about voting being made too hard from gun control advocates.

I can believe the not listening part. Still not seeing the hypocrisy. At best, we have some people who disagree on the reach of the right to own a weapon. They might be rather wrong. They STILL would not be hypocrites. Not that even that is right.
 

"What the Supremes properly held unconstitutional was granting Justice pre-approval power over a minority of states"

For which there was no textual basis in the Constitution. Not only is there no 'you can't make provisions which apply to a minority of bad-actor states' the Reconstruction Congress surely would have found the idea that this was implicit in their Amendments hilarious.

The Constitution as written, indeed!
 

What the Supremes properly held unconstitutional was granting Justice pre-approval power over a minority of states.

Which states were habitual offenders, and have to some degree returned to their old ways.
 

Attention recently arrived lurkers:

If any of you give a fig about Mr. W's opinion of me, please refer to Professor Levinson's earlier posts for my responses and slap downs of this silly person. I do not have the time or inclination to repeat them again here. I have a seizure trial to finish.
 

It's more likely he's having a seizure.
 

BD: What the Supremes properly held unconstitutional was granting Justice pre-approval power over a minority of states.

byomtov said...Which states were habitual offenders, and have to some degree returned to their old ways.


Equal protection of the law means the law applies to everyone, frequent flyers and those with clean records alike.

If Justice believes a state elections law violates the VRA or the EPC, bring a suit in federal court.
 

Saw Trump on Fox news today talking about the need for 'patriotic education' (re: propaganda) in our schools, warning about how today's college students are 'inundated with Marxist critical race theory'(nothing proves a person doesn't know what they're talking about re: colleges when they use this word salad term). He then said (I guess because it's Constitution Day) that the Constitution has done more than any other document in human history to better more people. Then he started talking about how protesters were tearing down statues of the Founders (I guess he was trying to connect the Founders being pulled down to those who wrote the Constitution, but, just out of curiousity, how many signers or drafters of the Constitution have had statues pulled down recently?).

I'm curious, not what the Birchers think of course, but what the sane people here think about whether the US Constitution had done more than any other document in human history to better more people (or make better off). As a fan of the Constitution, flaws and all, I think the Declaration is a better candidate (it was it that was more aspirational guiding the overcoming of much of the oppression in our earlier system). Opinions?
 

"Equal protection of the law means the law applies to everyone, frequent flyers and those with clean records alike."

The equal protection clause by its own terms applies to persons, not states. But Bircher Bart has struggled with that word 'persons' quite a bit so maybe he thinks it applies to states now. Heck of a seizure it must be!
 

Btw, in the 'law as written' the Congress is granted the power to pass legislation to enforce the equal protection clause. It did so with the VRA and an 'elite' Court re-wrote the Constitution to gut the law it passed under that explicit enforcement power.

Every accusation is a confession with Birchers, every one.
 

I would think he would think the Bible would do more to the degree it is a "document."

People do rally around the Constitution:

http://www.dorfonlaw.org/2020/09/doc-rivers-garrison-douglass-debate.html

Alexander Tsesis is one person who wrote a lot on the Declaration, including how it inspired many movements over the years.

It is hard to say. The Constitution as a government document has done a lot to improve people, including freeing slaves etc. DOI was a major inspiration, including to anti-slavery people in antebellum times & so forth.

I find it basically a bit silly to try to pick though today is Constitution Day, so it's a day to talk up that. Let's not forget btw about state constitutions, which Sandy Levinson has talked about. Maybe, he would find this interesting:

https://www.arcourts.gov/content/lady-justice-women-court-podcast [Episode 1]
 

I'm not sure he's very familiar with the Bible, but then again he's also not with the Constitution...I actually like the Bible as an answer in a more global context.
 

Here's my cynical take.

When I was tiny, academics were writing about how Nixon and then the Ford pardon were destroying the ideal of American democracy and the legal system.

When I was in my teens, academics were writing about how Reagan, and then Bush, were destroying the ideal of American democracy and the legal system.

When I was in my 20's, Bill Clinton perjured himself, a pertty serious affront to the legal system, and academics wrote about how this was no big deal.

When I was in my 30's, academics were writing about how George W. Bush was destroying the ideal of American democracy and the legal system.

Now, academics were writing about how Trump is destroying the ideal of American democracy and the legal system.

This country's structures are fine and resilient. This entire thing is nothing but liberals whining about losing elections. And academics are mostly liberals.

Liberals lose approximately half of the elections, and win half of them, which is, in fact, a sign of a healthy Republic. (In failing political systems, one party often wins every election.)

We'll be fine. This too shall pass.
 

Sorry for going off topic, but my pro prosecution judge just denied every seizure petition of the DA's office against my client.

Margarita time!

Seizure of "guilty" property (apart from proceeds from a crime) is one of my constitutional pet peeves. Most of my criminal clients don't want to spend the money fighting these subsequent civil actions. This one did and the DA's office was too lazy to do adequate trial prep.
 

BD: "Equal protection of the law means the law applies to everyone, frequent flyers and those with clean records alike."

Mr. W: The equal protection clause by its own terms applies to persons, not states.


The foundational principle of equal protection of the law applies (or should apply) to every aspect of the law. This is a natural right which is not dependent on the Constitution to expressly protect through the EPC. The Supremes used a slightly different terminology - "equal sovereignty of the states."
 

As I recall, the Court had already warned Congress that their preclearance formula was too dated to be defensible; That is to say, you can treat states differently for cause, but it has to be based on something more recent than half a century ago. You can't put a state permanently in the dog house.

And Congress didn't take the hint.

Preclearance as a concept makes sense for repeat offenders, but the other problem with the VRA is that, though preclearance was justified as a chance to veto unconstitutional changes to state law, in practice it was being used to force the states in question to conform to federal dictates that were not actually constitutionally based.

Which is, I guess, why Congress wasn't willing to update the preclearance list. It would have involved relinquishing power.
 

Mr. W: what the sane people here think about whether the US Constitution had done more than any other document in human history to better more people (or make better off). As a fan of the Constitution, flaws and all, I think the Declaration is a better candidate (it was it that was more aspirational guiding the overcoming of much of the oppression in our earlier system). Opinions?

The Declaration noted the end, the Constitution provided the means. Its easy to offer aspirational goals. The trick and more important accomplishment is creating a workable means of achieving those goals.

While the Constitution allowed slavery in order to obtain agreement of a sufficient supermajority of states, the principles enshrined in the Constitution were incompatible with this evil.
 

"The foundational principle of equal protection of the law applies (or should apply) to every aspect of the law. This is a natural right which is not dependent on the Constitution to expressly protect through the EPC. The Supremes used a slightly different terminology - "equal sovereignty of the states." "

This is all nonsense, but more important to my original point is that it is 100% *a-textual* nonsense.

"That is to say, you can treat states differently for cause, but it has to be based on something more recent than half a century ago. You can't put a state permanently in the dog house."

This is more a-textual nonsense. Whether pre-clearance is or is not a good idea there is no language in the written text of the Constitution forbidding treating states differently (especially when conditions in those states are judged to be different) or setting a deadline for how long states can be treated differently.

"the principles enshrined in the Constitution were incompatible with this evil. "

Especially the Fugitive Slave clause, right?

 

As to Dilan's lazy both-sides-do-it, reverse chicken little take, yawn.

Things can not be dire and still need and warrant addressing.
 

"This is more a-textual nonsense. Whether pre-clearance is or is not a good idea there is no language in the written text of the Constitution forbidding treating states differently (especially when conditions in those states are judged to be different) or setting a deadline for how long states can be treated differently."

Sigh. It's like you didn't bother reading Shelby County v. Holder.

"[The Congress shall have Power . . .] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

15th amendment: "The Congress shall have power to enforce this article by appropriate legislation."

The only constitutional basis Congress ever had for preclearance, is that it was necessary and proper to carry out a delegated power. The relevant power here is the power to enforce the 15th amendment by appropriate legislation.

If the preclearance has no basis which is genuinely relevant to enforcing the 15th amendment, say if it's based on conditions a couple generations ago rather than today, then preclearance is beyond Congress's powers, because it infringes on the powers states retain under the 10th amendment.

It's not like Congress has some free floating power to dictate what sorts of laws states can enact. Without a constitutional hook to base the claim of power on, the states can thumb their nose at Congress.

In this case the constitutional hook was lacking because the basis for Congress's legislation was lacking, being based on historical facts which were just too old to have justified the imposition.

If Congress had updated the preclearance formula based on CONTEMPORARY data, rather than data generations old, they'd have had a constitutional leg to stand on. But they couldn't be bothered.
 

What is "necessary and proper" and "appropriate" is the rub here and experience showed that is an open-ended term that is determined largely by the legislaure.

If the preclearance has no basis which is genuinely relevant to enforcing the 15th amendment, say if it's based on conditions a couple generations ago rather than today, then preclearance is beyond Congress's powers, because it infringes on the powers states retain under the 10th amendment.

Congress in the early 21st Century, not "a couple generations ago," determined the requirements were still appropriate with detailed findings. A process is in place for a covered area to be opted out. The dissent spelled this out.

The idea "equality of the states" is not really there except in a narrow fashion. The 15A as well as the 14A was passed with the determination that different states would often have different requirements for enforcement. No violation of the 10A.
 

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BD: The foundational principle of equal protection of the law applies (or should apply) to every aspect of the law. This is a natural right which is not dependent on the Constitution to expressly protect through the EPC. The Supremes used a slightly different terminology - "equal sovereignty of the states.

Mr. W: This is all nonsense, but more important to my original point is that it is 100% *a-textual* nonsense.


Part of our natural right to liberty is a right to equal liberty, more commonly known as equal protection of the law.. The argument over the Bill of Rights was whether an enumeration of natural rights was even necessary because natural rights were already protected. Federalist 84. The Federalist fear was enumerating rights 1-10 meant unenumerated rights 11-20 would be unprotected. Expressio unius est exclusio alterius The Anti-Federalist fear was a tyrannical government would decline to protect any right not expressly protected. Both sides' fears were realized under a progressive regime which freely rewrote the Bill of Rights to rubber stamp government direction and considered liberty to be whatever the government declined to direct.
 

Dilan,

We'll be fine. This too shall pass.

If Trump is reelected it won't pass quickly, if at all.

The odious Bill Barr is talking about prosecuting those he doesn't like. He apparently thinks that the Covid shutdowns are worse than Jim Crow, possibly because he doesn't think the latter was any big deal.

Trump allies - Roger Stone - are talking about imprisoning the Clintons, and who knows who else.

That similar fears were voiced during the W. Bush Administration is no argument. Maybe it was part of a trend.

The fact is we have a major party out of touch with objective reality, led by a dishonest, incompetent, serial liar. I'm not going to shrug that off as you want to.
 

"The odious Bill Barr is talking about prosecuting those he doesn't like."

Oh, BS. Only in the derivative sense that he likely doesn't like people who riot, commit arson and assault, throw Molotov cocktails, blind people with high power lasers...
 

Byomtov:

Barr is a long overdue return to professionalism in a bureaucracy weaponized to against the political opposition like Venzuela.

Trying domestic terrorists responsible for over a dozen deaths, over 700 injuries and almost $2 billion in insured property damage under the sedition laws is a good start.

The COVID shutdowns, detentions and other decrees are the worst abridgment of basic liberties in my lifetime. The Federal District Court for the Western District of PA’s recent decision reversing the PA’s decrees as violations of the 1A and !4A is also a good start.
 

"This country's structures are fine and resilient."

We are not as bad as those lying rapists -- they are the past so vitriol is easier -- but we are not just "fine." Those who flagged problems of the past can be stereotyped by their loudest members but in each case there was a real problem.

We are not just fine. We lingered on even in the days of Jim Crow. So the end of us our a nation will likely survive even a travesty of a second Trump term. But, I don't think things are fine. Systematic racism still exists. The system of police is deeply flawed. One specific party -- as a result of trends that grew over time -- fails to do basic things that a healthy party does, including in basic checks to the executive.

Stereotyping by citing the loudest critics and sounding like some Trump supporter by talking about liberal academics being the only one pointing out the problems is one way to go. But, the problems cited were there. Clinton shouldn't have been removed by impeachment. But, his actions were of the type that are being addressed now by the #MeToo movement. Bush43 did have serious problems, problems that we did not really fully address. Society is still open to such things. It's just that he did things with just not enough finesse, something akin to Jack Goldsmith's line.

Part of our resilience over time was admitting our problems and not just Panglossian like saying everything is fine. That's realism.
 

"The relevant power here is the power to enforce the 15th amendment by appropriate legislation."

Putting aside that it's quite a stretch to look to the single word 'appropriate' in an explicit grant of power to Congress to legislate in an area and find a rule that says 'you can make laws contravening state power on repeat bad actors but only if you update the supporting evidence of bad actors every X year that the Court thinks is right,' if you're going to complain about 'imperial judiciaries,' as Bircher Bart did to start this conversation, and then turn around in the same discussion defend a decision where 'an elite court' upended longstanding and overwhelmingly popular legislation based on finding such a rule in a single, vague word, that goes beyond chutzpah and into a stunning lack of self awareness and/or principle.
 

"Only in the derivative sense that he likely doesn't like people who riot, commit arson and assault, throw Molotov cocktails, blind people with high power lasers..."

"Barr is a long overdue return to professionalism in a bureaucracy weaponized to against the political opposition like Venzuela."


Interesting how he's not interested in prosecuting people who shoot people in the back, shoot women in apartments for nothing, assault elderly men, kneel on men until they suffocate, slash people's tires, etc.,...as long as they have badges.

In fact, the DOJ under Barr has curbed the oversight of state/local police forces that had some modest efforts under the previous administration. Talk about political violence against the political oppositions.

Every accusation is a confession with these people.


 

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"The COVID shutdowns, detentions and other decrees are the worst abridgment of basic liberties in my lifetime. "

If Bircher Bart is 55 or older then Jim Crow/segregation was in his lifetime (John Lewis was beaten into a comma at Selma exactly 55 years ago). So having people wear face masks when in places of large gatherings is a worse abridgement of basic liberties for Bircher Bart than Jim Crow was.

Of course, Bircher Bart has always and many times here discounted violations of the civil liberties of black persons. Their lives and dignity don't matter to him. It's increasingly the defining characteristic of the GOP.
 

"Only in the derivative sense that he likely doesn't like people who riot, commit arson and assault, throw Molotov cocktails, blind people with high power lasers...""Only in the derivative sense that he likely doesn't like people who riot, commit arson and assault, throw Molotov cocktails, blind people with high power lasers..."

I wasn't aware the mayor of Seattle had done any of these things.

Nor was I aware that they justified charges of sedition.

And of course we have Roger Stone calling for the arrest of Trump's political opponents. Surely Barr will be getting on that train ASAP.

Meanwhile, he's a liar and a Trump toadie. His comments about the shutdown give a sense of his values, and they aren't good.
 

It's a measure of how far, as a country, we've come that people can assert such asinine things as that the COVID-19 shutdowns are the worst abridgement of basic liberties they've seen.

Speaking as a person who spent time in the Vietnam-era army as a consequence of the draft, I think Barr somehow missed that phenomenon, which occupied much of the previous century. I wonder why. Of course, as a privileged young man like Trump, he didn't have to worry about it, because he could get a job that would exempt him while furthering his career. He didn't need to find a compliant doctor like Trump, or, like Bush II, get bumped ahead of others for a safe place in a stateside slot.

 

"Putting aside that it's quite a stretch to look to the single word 'appropriate' in an explicit grant of power to Congress to legislate in an area and find a rule that says 'you can make laws contravening state power on repeat bad actors but only if you update the supporting evidence of bad actors every X year that the Court thinks is right"

Plus, the behavior of those states post-Shelby demonstrates that the claims in the opinion that we no longer needed things like pre-approval were entirely false.
 

"if you're going to complain about 'imperial judiciaries,' as Bircher Bart did to start this conversation, and then turn around in the same discussion defend a decision where 'an elite court' upended longstanding and overwhelmingly popular legislation based on finding such a rule in a single, vague word, that goes beyond chutzpah and into a stunning lack of self awareness and/or principle."

Gotcha. You want whether the legislation is appropriate to be non-judiciable.
 

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BD: The COVID shutdowns, detentions and other decrees are the worst abridgment of basic liberties in my lifetime.

Mr. W: If Bircher Bart is 55 or older then Jim Crow/segregation was in his lifetime (John Lewis was beaten into a comma at Selma exactly 55 years ago). So having people wear face masks when in places of large gatherings is a worse abridgement of basic liberties for Bircher Bart than Jim Crow was.


Like other supporters of the COVID decrees, you are apparently not one of their victims.

Democrat Jim Crow government racism is not remotely in the same category as the COVID decrees. To be comparable, Jim Crow would have to shutter black businesses, unemploy black workers, detain blacks in their homes, and outlaw gatherings at schools, churches, and entertainment.

C2H5OH: It's a measure of how far, as a country, we've come that people can assert such asinine things as that the COVID-19 shutdowns are the worst abridgement of basic liberties they've seen. Speaking as a person who spent time in the Vietnam-era army as a consequence of the draft...

I am not a fan of the draft, but it is a perfectly legal civic duty and not remotely in the same category as the COVID decrees. Even in the Army, you were far freer than you are under these decrees.

Why do you Democrats so willingly accept the government denying your basic freedoms?

Has the government really convinced you this severe cold is an existential threat to your life? At the end of August, CDC released a detailed breakdown of "COVID deaths." Only a bit over 9,000 were caused by COVID alone. All the other "COVID deaths" involved people with multiple other deadly conditions at an average age of the late-70s, including such co-causes of death as trauma and poisoning. Unless you are elderly and already in the process of dying, you have little to fear from this cold.

We are now six months into what was supposed to be a 15 day shutdown matching the COVID incubation period and we are still allegedly facing armageddon, so please do not tell me that shutdowns are effective in stopping this cold.
 

Brett: Only in the derivative sense that he likely doesn't like people who riot, commit arson and assault, throw Molotov cocktails, blind people with high power lasers...""Only in the derivative sense that he likely doesn't like people who riot, commit arson and assault, throw Molotov cocktails, blind people with high power lasers..."

byomtov said...I wasn't aware the mayor of Seattle had done any of these things


Justice would need proof the mayor actually aided and abetted the terrorist sedition, not just stood down like Democrat.
 

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BD: Barr is a long overdue return to professionalism in a bureaucracy weaponized to against the political opposition like Venzuela.

Mr, W: Interesting how he's not interested in prosecuting people who shoot people in the back, shoot women in apartments for nothing, assault elderly men, kneel on men until they suffocate, slash people's tires, etc.,...as long as they have badges.


Unless (1) there is evidence beyond a reasonable doubt of a police crime violating civil rights and (2) the local authorities are not prosecuting, Justice should not be involved. Criminal law enforcement is primarily a state and local matter.
 

C2H5OH:

Yes, a severe cold - for the reasons CDC has provided. As for the latest Democrat slander of Trump whining he did not warn us of the severity of the severe cold back in February, go check out the various video compilations of Democrats at the time dismissing COVID and condemning Trump for his China travel ban. Disgusting hypocrisy.

I come from a military family. We have volunteered for service in every war since the Spanish American and possibly the Civil War, including Vietnam. I have personal experience in the Army's limits on your liberty and the hazards of front line combat arms duty. We served to protect the liberties taken by the COVID decrees.
 

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