Thursday, August 11, 2016

Donald Trump is right: The election IS rigged (though not in the way he thinks)

Sandy Levinson

The Washington Post has an article making the point that even if Hillary Clinton wins a "mandate," she is unlikely to get anything through Congress.  The author gives seven reasons, the first one of which, and the most important, is that "Republicans are almost certain to hold the House.  The tea party wing might actually wind up with more leverage, not less, after November."  The "logic" of our political order and the "separation of parties, not powers" (as Rick Pildes and Daryl (no relation) Levinson our it, is that an opposition party has no reason whatsoever to cooperate (or, in their language, "collaborate," with a president of the opposite party, for the simple reason that president's will pick up (at least) 90% of the credit for any accomplishments.  If the president is thinking of running for re-election, that's a big advantage.  This is why Mitch McConnell was behaving perfectly rationally in doing everything he could to deprive Barack Obama of any accomplishments during his first term.  He had learned from both Newt Gingrich and Ted Kennedy that the consequence of cooperation/collaboration was re-election of the incumbent (respectively, Bill Clinton and George W. Bush).  As a matter of fact, Hillary Clinton will e the most vulnerable incumbent, in 2020, of any president since Herbert Hoover.  It would be idiotic, if one is thinking only in terms of party interest--and what else does the Republican "leadership" that is willing to "endorse" Donald Trump think of these days (it's certainly not the good of the country)--to give her any accomplishments, such as financing infrastructure improvement bills that might actually provide jobs for the working class, as well as stop our decline into third-world status with regard to our roads, airports, railways, bridges, and the like.

But why are the Republicans likely to hold the House while Hillary is walzing to the Oval Office and the Democrats are (probably) recapturing the Senate.  The answer is all too simple:  It's a combination of gerrymandering and the more general consequences of having exclusively single-member districts, as required by a congressional law passed originally in 1842.  This means, for example (and, of course, this is not hypothetical), that Democrats nationally can get 1.5 million more votes for the House and end up with Republicans having a majority in the House of 34.  (Not to mention, of course, the Senate, which is illegitimate under any 21st century notion of one-person/one-vote.)  This, obviously, is big-time rigging.  And we should, at the least, be discussing it and even marching in the streets about it.  It wouldn't even take a constitutional amendment to repeal the 1842 law and instead require each state with more than five representatives, say, to draw multi-member districts with proportional representation elections.  Texas, for example, with 36 representatives, could easily be divided into six districts of six representatives each.  Any of the extant systems of proportional representation would assure West Texas Democrats of being able to elect one or two of their own, just as Travis County Republicans would now be able to elect a local Republican and not rely on a vicious Tom Delay gerrymander to make Austin the largest city in the country without a genuinely "local" representative.  It's not rocket-science.

Obviously, it is unlikely in the extreme that the House would ever vote for such a sensible bill (any more than state senators are likely to vote themselves out of a job in, say, Minnesota, by deciding that that state could easily emulate Nebraska's (or New Zealand's) unicameralism.  If the US were like one of the many states that included popular initiative and referendum, then We the People could do an end run around a corrupt and self-interested House. But it's not.  So, alas, only a national constitutional convention could propose an amendment that would restore legitimacy to the process by which we elect members of the House (even if the convention chose to ignore the obvious problems with the Senate).

Elizabeth Drew, a sagacious commentator on US politics, sadly typifies the obtuseness even of the best mainstream pundits.  She has a review of the new book Ratf___ked, about the skilled use by Republican operatives of modern technology to gerrymander congressional districts after the 2010 elections to assure Republican control of the House until at least 2022 (unless Hillary so clobbers the narcissistic sociopath that she actually generates a Democratic House, but, sadly, that seems to be relatively unlikely).  All Drew can do, like lots of "good government" types, is to call for "non-partisan commissions" to draw the lines instead of leaving it up to self-interested political operatives. The only recognition she shows of the problem of single-member districts is to criticize the notion of "the big sort," the idea proposed by Bill Bishop several years ago that as more and more Americans are choosing to self-segregate by political preferences.  This suggests that it's not simply gerrymandering that leads to the modern House.  Compact districts, for example, might lead to 80% Democratic districts in many urban areas , while Republicans are advantaged by lots more districts in which they would have, say, only 55% of the population.  But single-member districts are, by definition, winner take all.

From my perspective--no surprises here--this is simply another illustration of how we are victimized by our dysfunctional and even "imbecilic" Constitution.  It's not only the craziness of, practically speaking, needing to rev up a constitutional convention in order to repeal a statute that made a great deal of sense in 1842 and generates really terrible consequences today; it's also the fact that the insane difficulty of constitutional amendment makes the very idea "unthinkable" among practical and "thoughtful" people as defined by the Washington Beltway and other centers of "thoughtfulness."

And Democrats are so eager to dismiss the ravings of the narcissistic sociopath regarding his own demented notion that the election is rigged--how else could somebody so magnificent actually lose the presidential election--that they/we are unwilling even to lay the basis for the deep critique of the American political system that assures that the election of Hillary Clinton, if the Republicans keep the House, will make, at best, a marginal different domestically, other than saving us from the prospect of a sociopathic president.  That will be something to be grateful for, but it won't one whit lessen the overall political and constitutional crisis that faces the country and that most people simply wish to ignore because we have a Constitution that seems to assure there is no way out of it.


The system of apportionment used here (except for the one delegate minimum & dealing with voting representatives in non-state areas -- even the latter can be done up to a point) doesn't require a constitutional amendment to overturn. A simple majority would be able to do so though good luck getting it thru the House.

Our Constitution allows this -- it is not the Constitution itself that blocks it though the framework it sets up helps. Ditto Congress regulating federal elections in a variety of ways, including from what I can tell requiring independent commissions to handle apportioning districts.

It is true such things should be talked about, likewise such things as the system of voting we have in this country generally. Johnson and Stein voters perhaps can lead the way there since the current system hurts their cause.

I think it should be clearly remembered that a key reason Republicans will try to prevent Democratic Presidents from having any "accomplishments", is that, given different views of what government is supposed to be doing, Democrats and Republicans disagree about what constitutes an "accomplishment".

For instance, Democrats view the ACA as an "accomplishment", Republicans consider it a bad piece of legislation which has made things substantially worse in many respects. Democrats would view gun control laws as "accomplishments", while Republicans would view them as attacks on a civil liberty.

It's not a matter of Republicans trying to keep the economy from improving under Democratic administrations, or anything like that.

The converse is true, too, of course. If Trump is elected, Democrats will work hard to prevent him from getting a national Right to Work law passed. Or national Concealed Carry reciprocity. They'll try to keep him from getting the ACA repealed, the wall built, illegal aliens deported... They won't be doing this out of a desire to deny Trump successes. They'll be doing it because they object to those things.

I actually favor at large proportional representation. I think they'd actually benefit the Democratic party. At present, Democrats are mostly elected out of districts which are very unrepresentative of the nation as a whole. Mostly from urban areas where the vast majority of people are Democrats. (This isn't a consequence of active Gerrymandering, it's practically unavoidable consequence of single member districts, given the way Democrats huddle together.)

The result is that elected Democrats have very little understanding or sympathy for people who don't live in urban centers. A Democratic party elected under at large proportional representation would be a very different Democratic party, and one that was less threatening to the interests of people living in most of the country.

The same would be true of the Republican party; Republicans who lived in cities would no longer be unrepresented within the GOP.

Both parties would moderate themselves, I think, given at large PR.

Republicans support various things the ACA does.

We saw with Bush expanding Medicare that the Republicans think "what government is supposed to be doing" involves some of these things. Republicans for years have been speaking about a "mandate" with a market based system as a basis. If the Republicans were willing to compromise ("we think 80% of the bill is something we can agree with" said a leading Republican senator), it is quite possible the Medicaid expansion could have been voluntary (as it is now & many Republican governors signed on). etc.

A more representative system of what the public as a whole wants very well might have seen both parties being involved more than they were (Republicans involved in the debates & voted for amendments) in ACA and Republicans overall having less power to block.

Republicans supported gun regulation in various respects too and going past membership, by large margins, individual voters of each party supported them. Again, the professor is concerned with how the system in place skewers this here so that a full clear representative vote is not in place.

Of course, there are strong differences between the parties and groups, and some will win out. This won't be some sort of "rigged" system on a basic level in various respects though some think so.

"At present, Democrats are mostly elected out of districts which are very unrepresentative of the nation as a whole."

Unclear in various respects though sure urban voters are less representative of more thinly populated areas or areas with less diverse populations. A trip on the subway in NYC would be quite an experience in the latter respect for people from various parts of the country. Being scared of Muslims and others when I daily see women, e.g., in religious garb, something harder for me than if I did not.

Still, it's useful that Brett is supporting proportional representation here -- it shows there is some common ground out there. Politics etc. will make it hard, but there is room for advancement. For instance, there are enough non-native born people that both parties like for that provision to be changed possibly.


The House has been competitive since 1994 and a plurality (single digits go Indi or third party) to majority of voters have chosen the House majority every cycle apart from 2012. Between 1994 and 2014, voters elected GOP House majorities in every cycle but two. This record of success has nothing to do with GOP "gerrymandering." From 1994 through 2010, the GOP won 7 of 9 House cycles under largely Democrat state districting.

2012 is an anomolous election where a minority of House districts showed up at historical or higher than historical levels to elect the president and much of the rest of the districts showed up at below historical levels.

In 2016, the polls do not show the voters in the mood to change their GOP incumbants in either the House or the Senate. Clinton is hardly leading a popular wave of support and is nowhere near 50% support in any poll which is not massively skewed toward minority and Millennial demographics. If she wins, Clinton will likely earn a plurality of the vote around 47%.


"Unclear in various respects though sure urban voters are less representative of more thinly populated areas or areas with less diverse populations."

Depends on what you mean by "diverse"; Urban areas can have ethnic diversity, but that's quite common in suburbs and rural areas, too. What the urban areas usually lack is political diversity. They frequently have districts where the Democratic party gets 90% or higher of the vote. We're talking here not about areas where the Democratic party is merely a majority, but where they are a monoculture.

I think it's bad for the Democratic party to have so many of its office holders elected from places which are effectively one party states. It warps their view of what constitutes a reasonable range of opinion, for one thing.

But, yes, I think it's clear that at large PR is much "fairer" in that neither Republicans in Democratic areas, nor Democrats in Republican areas, end up unrepresented.

As I said in the last thread, we live daily with the consequences of the fact that our instututions were largely designed by a complete imbecile, James Madison, whose priority was locking slavery into the system. Many of the founders loved to rape their slaves and wanted to make sure they could continue to do so.

Almost every other mature democracy on earth has a better political system than we do.

There is a good trend, however. We are getting more parliamentary. Parties are working in lockstep, like they should, and this should eventually get through to the public and result in more straight ticket voting, which will in turn mean the Congress and President will more often be of the same party and the President's agenda will get through.

Personally, I think part of what is warping our political discourse today, is the need on the part of the left to disparage the founders, and attribute every feature of the Constitution to slavery, in order to delegitimize a constitution they hate having to be bound by. It really exaggerates the influence slavery had on our constitution's design.

But I'll agree with you that path dependence has stuck us with some systems that don't work as well as they should, and that one of the advantages the newer democracies had, was that they were working from a blank slate, and could benefit from our own experiences. I've often compared our constitutional and political culture to a legacy computer system; Slow, buggy, all the exploits known to every script kiddy on the block, practically paralyzed by memory leaks.

Sometimes I think what we really need is a periodic jubilee, maybe every 25-50 years, where everyone who has ever held office is barred from ever holding it again, to assure 100% turnover in government.

Dilan isn't "the left". He's pretty much sui generis.

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Focusing on some "imbecile" is not really the best way to handle this issue especially since a lot more than he (dead since the 1830s) were involved & even he lost some big battles (e.g., he wanted the Senate to be apportioned by population).

It's this sort of thing (see also how discussions of religious liberty focus so much on two people, again dead for a long time) is part of the problem. It's an oversimplification mixed with sneering. Take the whole bit about raping slaves. Slavery is horrible. Very controversial statement.

But, it was a basic part of society & even NY (Hamilton's father-in-law too) had a significant slave population. The Constitution set up in 1787 was going to in some fashion take it into consideration. The thing is that even there, it was a lot less set in stone than it could have been. The opening was there to a society beyond slavery, even before the 13th Amendment itself was passed. And, so today -- bad things are going to be in some fashion factored into how things work, but the charm is to limit the damage as much as possible. The net result will be imperfect.

Parties being in "lockstep" btw worsens the situation, at least when one party is unable to function properly. They are led to let their base skewer things, even when a majority of the party itself is worried or in actual opposition. Actual government in a diverse country requires some compromise and that "imbecile" (and others) knew it.

Rather than comment on this specific post by Sandy, I would hope that visiters to this Blog have read the 44 page "debate" between Sandy and Jack Balkin for which a link is provided in Jack's most recent post here. The "debate" is in the form of exchanges of letters during 2015 before Trump became the nominee of the Republican Party for President in 2016. These letters are followed by an additional exchange of letters earlier this month that focus on Trump as such nominee. I don't know if Jack plans a post in response to this current post by Sandy. But I would urge visitors to this Blog to read through the letters in that debate, perhaps to provide better perspective on Sandy's current post.

Also, on TV tonight PBS' American Experience on "Nixon" was repeated. I lived through that period as a practicing attorney, I had seen this production before but I was mesmerized by the potential constitutional crisis involved. It was very sobering as we consider the candidacy of Donald Trump, whose campaign is somewhat emulating Nixon's 1968 campaign as the law and order candidate and the Southern Strategy. This repeat was very sobering as we are more aware of Trump's dark sides than the public was aware of Nixon's dark sides in the 1968 campaign. We did survive not only Nixon but also the tragedies of the Vietnam War. But have we remembered the lessons that should have been learned as the 2016 election gets closer? Many Republicans are having serious issues with Trump before the election. It took several years after the 1968 election to learn of Nixon's dark sides. But the public has been exposed to Trump's dark sides, almost on a daily basis.

We now know why there are so many primaries and the electoral college.

Because the founding fathers wanted to make sure that a demagogue, elected by popular vote, wouldn't win on one round of elections. I was all for getting rid of the electoral college until Trump showed up.

Trump has proven that there needs to be multiple hurdles to get into the White House. Nobody as stupid as Donald Jerkoff Trump should have the opportunity to run the nation, it's an insult to the office and the nation to let this buffoon be leader of the free world. Can you imagine this fool in ANY office?

Trump should start over, run for town council, then maybe a state seat, then a seat in Congress, then run for President. He shouldn't be allowed to fast-track his way into the office without proving he isn't a menace to society and the free world.


" It was very sobering as we consider the candidacy of Donald Trump, whose campaign is somewhat emulating Nixon's 1968 campaign as the law and order candidate and the Southern Strategy."

While Hillary is emulating the less legal side of Nixon. It's a real pity the only lessons SHE learned from seeing Watergate up close were to be thorough in destroying evidence, hire only people who are too loyal to testify against you, and never, ever stop stonewalling.

Regarding Karlyn Weather's comment justifying the Electoral College, the question is whether it is more likely, as she assumes, that Trump would win the popular vote but lose the Electoral College, than vice versa. Is that true? The Electoral College, after all, gave us George W. Bush.

And I'm no expert on the founders' rationale for the Electoral College, but I think that it had more to do with giving the slave states disproportionate power than with preventing demagogues from becoming President. The 3/5 Clause benefited the South in the Electoral College as well as in Congress.

See my comment at 2:02 above. Everything in the Constitution is not about slavery.

I would point out that women, who didn't at the time have the vote, counted for 5/5ths. Children counted for 5/5ths. Every group who lacked the vote counted for 5/5ths, except for slaves.

This was not to benefit the slave states, quite the opposite. Treating slaves differently from every other group that lacked the vote reduced the slave states' representation. Which did not, remember, include representation for the slaves, because they didn't have the vote.

Would 0/5ths have been still better? Sure. That's why it's called the "3/5ths compromise". As in the opponents of slavery not getting everything they wanted. Just remember that the slave states didn't want it, they wanted the default 5/5ths.

I find this modern misrepresentation of the 3/5ths compromise rather irritatingly ahistorical. If there hadn't been a 3/5ths clause, the slave states would have had MORE representation in Congress. Slaves would have counted 1 for 1, just like everybody else who didn't get to vote.


There's no misrepresentation I think, there's just a note that a nation founded on the principles of freedom and equality had to make such an absurd compromise.

I think those on the right are too quick to gloss over slavery. It wasn't some minor glitch in the system, it was the worst possible contradiction built into a system based on the ideas which ours was, one that was only overcome by a civil war that almost destroyed the nation. This glossing over betrays an inability to see things as they were from the vantage point of people different than yourself, which I think is a real problem in the political discourse in general these days.

Brett, also remember that at the time children were thought to be represented by their parents, that's not such a crazy idea. Women were assumed to be married and represented by their husbands, but everyone realized that masters were in an antagonistic relation to their slaves. Granting them any 'representation' of them was absurd, and bolstered the political clout of the slave states more than it warranted.

I agree that ideally it would have been zero. I agree that, ideally, the Constitution would have included the 13th amendment at it's birth. Ideally we'd go straight to perfect justice without any of this messy compromise.

And you could say that about today, too.

That doesn't change the fact that the very existence of the 3/5ths compromise was a partial defeat for the slave owners. Just as the fact that Congress was permitted to regulate and ban importation of slaves after 1808, (As it did the moment it was permitted.) was a defeat. The slave states would have preferred that the Constitution had neither clause. If either clause had simply been omitted, it would have been a major victory for the slave states.

And yet, today, the 3/5ths clause is portrayed as though it were a victory for the slave owners, as though they wanted such clauses. It's totally ahistorical nonsense, and I have no interest in pretending otherwise.

"Between 1994 and 2014, voters elected GOP House majorities in every cycle but two."

The point of gerrymandering comes up when the party that receives less votes overall retains a majority of congressional seats, it doesn't matter in cycles where the party with the most votes retains the most seats. One must allow for ticket splitting, so the party with the most Presidential votes not getting the most congressional votes is also not an indicator. So it was in 96 when the Democrats got more Congressional votes but the GOP kept the House and in 2012 when the same happened that the problem is indicated.

It wasn't a defeat for anyone. A partial defeat is also a partial victory Brett. Neither side got what they wanted, both sides got something, both side didn't get something. Also note that where the slave owners lost on the 3/5ths they gained on the tax side.

Most people that bring up the 3/5ths clause are doing so to note just how flawed the nation was, especially given its stated ideals, in having to compromise with the slave owners so. To the extent that you're upset because everyone doesn't refer to it as some resounding defeat of slave interests, you're upset in people not adopting your rather pollyanish spin on it.

Logically speaking, the 3/5 Clause could have been both a compromise and a victory for the slave states. Suppose that a holdup man pulls a gun on me and demands $1,000. I counteroffer $600 and he accepts. He wins a victory because his initial demand, like the South's initial demand for any representation of their slaves, was unjustified.

Polyannish? It's how the 3/5ths compromise was understood from the time the Constitution was written, until about 20 years ago, roughly. The portrayal of the 3/5ths compromise as something the slave states wanted, and benefited from, is just recent revisionist history.

Henry, the slave states already had the full representation under the Articles of Confederation. So, to use your analogy, the robber already has your $1,000, and you manage to snatch back $200. That's purely a defeat for the robber, for all that you'd ideally have gotten it all back.

Under the Articles representation wasn't based on populations, each state got an equal vote.


Anyway, setting aside this diversion into revisionist history, my main point is that you shouldn't expect Republicans to cooperate much with Democrats, because Republicans and Democrats have different ideas about what should and shouldn't be done.

You can't expect a Republican legislature to help enable a Democratic President to do what the legislature thinks is the wrong thing. Especially when, constitutionally speaking, for most topics it's actually the legislature's job to decide policy, not the President's. His job is to "“take Care that the Laws be faithfully executed.", which is to say, faithfully implement the Legislature's policies as enacted into law.

Only in foreign policy is he supposed to have the initiative, and even there he is constrained to have the legislature's approval for most things.

We have a constitution written to assure legislative supremacy, in response to the "executive branch" abuses of King George. Why then should the legislature help the executive accomplish things that are different from what the legislature wants done?

Brett engages in revisionist history as a cover for Trump's base of older undereducated white men who fear the changing demographics. Brett's comments about his views on slavery do not, however, comport with his attempts at revisionism. And Brett''s revisionism of southern history is the same as that of the southern historians as the centennial of the Civil War approached, coincidentally back about the time Brett was an infant. Apparently Brett has never grown up on the subject as the civil rights movement progressed during the 1960s. The goal of these southern historian revisionists was to put slavery and Jim Crow in a better light, that blacks obtained significant benefits from the paternalist southern plantation owners.

Good Lord, how do my remarks put slavery and Jim Crow in a better light? You're just reverting to your normal determination to view anybody who disagrees with you as some kind of racist.

The founders were complicated people. They were doing evil, and they knew it, but they were trying to be better. Hard enough? No, not really. But it's the worst sort of historical revisionism to portray their inadequate efforts to abolish slavery as efforts to further it.


Well of course you'd like to turn away from the digression now that your rebuttal analogy to Henry's is undermined (we didn't go from full slave state population representation to 3/5ths because we didn't have population representation at all under the Articles). When we decided to go to population based representation we let the slave states get away with crediting their slaves, who they clearly had an antagonistic relationship with, toward apportionment, a result so morally ludicrous it's no wonder people still shake their head at it.

As to the Founders, they were a diverse group. Many were actual defenders of slavery and hoping to protect it's interests, while others would have liked to gotten rid of it. General veneration or condemnation is unwarranted.

Back to the main point, I don't think Sandy's argument is that a party that holds Congress has to work with the other's party's President, but that our system which allows the party that wins the Presidency to not also control the Congress, especially when that didn't happen via vote splitting but rather because of line drawing, is flawed, anti-democratic.

"We now know why there are so many primaries and the electoral college.

Because the founding fathers wanted to make sure that a demagogue, elected by popular vote, wouldn't win on one round of elections."

The primaries are a recent development to provide a more democratic approach to picking presidents. The system in place now where a narrow percentage of the population pick each nominee in certain ways encourages more extreme candidates. A plurality chose Trump and then eventually he had too many delegates for a contested convention. Then, even though a sizable number of voters were left, he was the assumed winner and he received big majorities in remaining races.

So, it's questionable how useful that would be to stop Trump -- "a demagogue" was traditionally seen as a reason to be less democratic, many Framers not trusting the people. The Electoral College was in place to meet various concerns, including a general doubt that a very local people in the world of limited communications and travel would agree upon one person. So, they would pick electors who would meet together and probably the House would often pick among the top winners.

The EC also was a way to compromise like the House and a Senate, including regarding small states. Slavery was not the only concern in that respect though it was an important factor. Today, it is unclear how the Electoral College, as compared to another method, would stop demagogues. It didn't stop various substandard presidents over the year, at the very least.

The 3/5 Compromise was both a compromise and acceptable at the time. It was not seen "ludicrous" given the state of society.

This doesn't belittle the wrong of slavery. It just is being realistic about the possibilities at the time, again when slavery was present nation-wide. Representation at the time was much more virtual than today. Women surely was not full players in society but were counted equally. The ratio arose from a proposal regarding allotting tax burdens, slaves being deemed economically less productive. One way to allot representation was economic.

Women and children showed you don't have to be full citizens to be represented. And, some sort of "antagonistic relationship" with slaves is obvious, but if they are 1/3 or even a 1/2 of the population, they are being "represented" somehow. Not counting them at all would to be diminish their worth to some degree. They would truly be treated like livestock if they are not "other persons" at all here. But, they were not -- the law treated slaves as persons in various ways including providing certain limits on punishment.

Anyway, the argument for a more parliamentary system is of course out there though some countries do have a mixed system in some fashion today. And, part of the question here is scope. Democrats during the Reagan years, e.g., controlled the House. Did they never support his policies? No. There was some compromise.

Well, I have to admit my mistake. Though 5/5ths was the default if there hadn't been a relevant clause, you're right, the Articles had states represented equally. My bad.

Given the distribution of voters on the ground, any single member district system that didn't egregiously Gerrymander would end up favoring the Republicans. This is just a natural consequence of the fact that the areas where Republicans are the majority, they are only modestly in the majority. While where Democrats are the majority, practically everybody is a Democrat. No Gerrymandering required, though both Republicans and Democrats do practice Gerrymandering anyway.

As I've said, I strongly favor at large proportional representation. It more accurately represents public opinion in the legislature, and it would have a moderating effect on both major parties, by giving urban Republicans influence within the GOP, and rural Democrats more influence in the Democratic party.

It would also, not incidentally, remove a major barrier to minor party participation. Which also makes the legislature more responsive to public opinion.

A good deal of the current problem with American politics is due to the measures the Democrats and Republicans have put into place to suppress third parties. By foreclosing any alternative to themselves, they've created a horrible dynamic where each party doesn't have to affirmatively appeal to it's own base, it only has to convince it's base that the other party is worse. Because there's no place else to go but the major parties.

But, this is not a constitutional problem, the Constitution never prohibited states from allocating Representatives by proportional representation. It's a legislative problem.

However, a constitutional convention is probably the only way to fix it, because House members elected under the current system would never go along with changing to a system they might not be reelected under. And the Senate wouldn't go along, either, because it isn't in the interest of either major party to allow voters an alternative to themselves.

A final point: The Voting Rights Act has been interpreted as requiring racial Gerrymandering, the creation of "Minority-majority" districts, on the theory that minorities can only be represented in the legislature if they have districts where they are the majority. This has been the chief excuse by which Republican gerrymandering has been perpetrated. Perhaps we should revisit that idea?

"if they are 1/3 or even a 1/2 of the population, they are being "represented" somehow. Not counting them at all would to be diminish their worth to some degree."

I don't understand. How is it any benefit to slaves to be "represented" by giving their owners greater power? If any federal legislation or a constitutional amendment that would benefit slaves were introduced, the 3/5 Clause would make it less likely to pass. The fact that "the law treated slaves as persons in various ways including providing certain limits on punishment" has nothing to do with whether the owners had greater power in Congress.

I'm not sure what "being 'represented' somehow" means, but it doesn't mean having people who are antagonistic to you having more power in your name.

It's a mistake to see the 3/5 clause as subject to compromise on without consideration of other issues. The Convention had a number of issues separating slave states from free states, among them taxes, Congressional control over foreign commerce, the structure of the Senate, the Northwest Territory Act, and the method of choosing the Presidency. You can see the compromises in the Convention and in Congress:

1. Nationalists got plenary taxing authority, subject to the limitations on direct taxes (favoring slaveholders) and export taxes (ditto).

2. The Northern states got Congressional power to regulate foreign commerce, subject to the limitation on the prohibition of the slave trade.

3. The smaller Northern states got equal representation in the Senate, for which they (mostly) traded the 3/5 clause (giving the South an expected equivalent advantage in the House).

4. The North got a slave-free Northwest Territory, again as part of the deal for the 3/5 clause.

This is a somewhat simplified version, and to some extent we have to reconstruct it by inference, but it's correct in outline.

It's also important to remember that the 3/5 clause originally affected only taxes. It was adopted during the Confederation in an effort to equalize state contributions to the federal government. Only during the Convention was it modified to apply to elections, and then it was part of the overall compromise noted above. And it was proposed that slaves have zero representation, so the 3/5 clause did start from that base.

Gah. My first sentence should read "It's a mistake to see the 3/5 clause as subject to compromise without consideration of other issues."

Brett's response rhetorically asks:

"Good Lord, how do my remarks put slavery and Jim Crow in a better light?"

The short answer is that his revisionist attempt to do so fails. Brett was born as the civil rights movement starting with Brown v. Bd. of Educ. (1954) was getting underway. Brett was fed northern Michigan racism from which he has not been fully weaned. From time to time he states that he detests Trump but continues to support him as part of his base of older undereducated white men who fear the changing demographics. I recall Brett's informing us at this Blog of his yout competing with immigrant Mexicans in pulling radishes, perhaps these migrant Mexicans making fun of Brett's disability of small hands. What Brett resents is the civil rights movement that took away his claimed birth right of supremacy, a supremacy displayed over the centuries of slavery and Jim Crow. Brett was not prepared to compete with a level playing field. Perhaps Brett might list what he detests about Trump to identify what he likes about Trump?

Sandy: It wouldn't even take a constitutional amendment to repeal the 1842 law and instead require each state with more than five representatives, say, to draw multi-member districts with proportional representation elections. Texas, for example, with 36 representatives, could easily be divided into six districts of six representatives each. Any of the extant systems of proportional representation would assure West Texas Democrats of being able to elect one or two of their own, just as Travis County Republicans would now be able to elect a local Republican and not rely on a vicious Tom Delay gerrymander to make Austin the largest city in the country without a genuinely "local" representative. It's not rocket-science.

Democrat self-segregation into compact urban and minority areas is going to place them at a disadvantage in any geographical districting. A GOP legislature in Texas can draw your proposed six multi-representative districts to make five of the six red without making a single gerrymander - a long and unusually shaped district which cuts across multiple areas of interest.

The Democrats only real remedy would be a parliament with a national election by party where seats would be apportioned proportionately. In that case, there would be no genuinely local representatives and the urban areas would frequently be imposing their priorities on the suburban and rural areas.

Mark Field looks at the wider picture which is helpful.

Henry wonders ...

I don't understand. How is it any benefit to slaves to be "represented" by giving their owners greater power?

The basic thing for me is that slaves in the Constitution are labeled "persons" and in time this gained more significance though even then there was a limited anti-slavery movement or at least some consideration of the personhood for slaves.

If they are going to be considered "persons," it would also follow (especially given all the other things weighed as Mark Field notes) that they would be counted somehow.

If any federal legislation or a constitutional amendment that would benefit slaves were introduced, the 3/5 Clause would make it less likely to pass. The fact that "the law treated slaves as persons in various ways including providing certain limits on punishment" has nothing to do with whether the owners had greater power in Congress.

I would argue the second part is not true as noted above. If slaves were going to be treated as "persons" somehow, it would be hard sell to count them as "0" for purposes of representation and direct taxes. The first part is true overall but doesn't to me change the overall argument. Anyway, benefit to slaves is not my full argument on why the compromise was just that.

I'm not sure what "being 'represented' somehow" means, but it doesn't mean having people who are antagonistic to you having more power in your name.

The word "antagonistic" is rather broad -- members of Congress was and in some fashion continue to be "antagonistic" to various groups. White women, free blacks, and others were "represented" even if (to a much lesser degree) they were mistreated in certain ways.

It does not justify slavery or cheapen the evil nature of the institution to ignore that slaves were treated as human beings in certain respects, even by antebellum legal institutions (down to various ways -- unlike a cow -- becoming free), and in the process "representing" their basic interests in some fashion.

BTW, Mark Field's discussion can also be applied to current disputes, including how Democrats support free trade policies while also providing health insurance and other benefits to workers burdened in some fashion by the policies. In fact, the person I disagreed with on another blog suggested the policies arguably also helps foreign workers. To the degree Democrats are globalists concerned about the good of all people here, that too would have to be put in the balance.

Bart, I think you're failing to take into account the PR aspect. Depending on details of implementation, of course, in a 6 member PR district, any group numbering over about 17% is going to have a representative. Above that there's a certain amount of quantization noise, but aside from that it's stepwise proportionate.

You'd be hard put to draw 6 districts in Texas where the Democrats wouldn't get at least 17% of the vote in all of them. It would be marginally more feasible, but still difficult, to draw even one of those districts where Republicans wouldn't get at least one representative.

PR would unquestionably increase the representation of Democrats in most states, and Republicans in a few. But I think the bigger influence would be what sorts of Democrats and Republicans would get elected.

Shag, aside from demonstrating what a dark place your head is, what was the point of letting your imagination run wild like that?

Of course we all know where Brett's head is, and that's a dark place. Rather than imagination it is based upon what Brett has expressed, particularly at this Blog, with reasonable conclusions.

And Brett does not respond to these portions of my earlier comment:

"From time to time he [Brett] states that he detests Trump but continues to support him as part of his base of older undereducated white men who fear the changing demographics. Perhaps Brett might list what he detests about Trump to identify what he likes about Trump?""

After all, Brett cannot deny that he trolls for Trump at this Blog. Detest is a strong word, and Brett has used it several times about Trump. Since words don't seem to matter to Trump, perhaps they don't matter to his troll Brett either.


"From time to time he [Brett] states that he detests Trump but continues to support him as part of his base of older undereducated white men who fear the changing demographics. Perhaps Brett might list what he detests about Trump to identify what he likes about Trump?"

In what manner am I, a professional engineer, 5 years of college, (Dual major, engineering and human biology.) chemistry and math tutor, part of Trumps base of older, undereducated white men who fear the changing demographics? Older, I'll cop to. White? My photo confirms that. "Fear", no, more irate about. But undereducated?

I believe I've already stated that I wanted to vote for Rand Paul in the primaries, or Walker as a fallback position, but the both dropped out before I had the chance, so I ended up voting for Cruz. Cruz lost. So I'm stuck with Trump, or the felon.

What do I dislike about Trump? I don't mind that he's impolite, but he could stand to think more about what he says before he opens his mouth. He'd have to remove his foot from it less often if he did.

His position papers are generally good, what comes out of his mouth if he doesn't think, not so good. He gives the signs of having the wrong reflexes, even if he's got the right advisors. That's the optimistic take, but I'm trying to be optimistic.

I don't like all of his policies. He's not, after all, running as a Libertarian. (Neither is Johnson, except nominally.) But I mostly do. But he's bad on eminent domain. He's a sucker for conspiracy theories.

DePalma thinks he's a fascist. I think DePalma is reading too much into his manner, and ignoring his policies.

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Trump is offering a fascist political campaign, but I have no idea what policies he might propose as president because his campaign promises change as time goes on and all of them differ from his previous progressive policies.

You have the benefit of knowing, although your preferred candidate is a near pathological liar, her policies will be those if the highest bidder. The president from Goldman Sachs.

One can be undereducated if one takes ludicrous positions and makes ludicrous statements with frequency. I know little of Brett's career as an engineer. I'm not sure if he is currently employed or self-employed as an engineer what with the amount of time he spends on this Blog and other blogs. I've been basically retired since 9/1/98, following which I got interested in legal blogs. But Brett seems to have more time to get on various types of blogs than I do. In my active law practice days blogs were not part of my life. Even now I limit my time to focus more on reading interesting legal articles that I learn of via legal blogs. And I limit the number of legal blogs I do visit. But Brett has become a troll at this Blog, having expressed earlier his antipathy for the legal profession, including the attorney who represented him in his divorce. It's sort of a social media for Brett, revealing his views on personal and racial matters. He uses revisionis history. He is not well versed in the law. Brett has demonstrated to me that as a practical matter he is undereducated. And being "irate" about the changing demographics is just a "dog whistle" on race.

By the Bybee [expletives deleted], Brett's "disliking" or "not liking" Trump on a few matters is a tad different than his earlier use of "detest" regarding Trump.


Calling the slaves 'persons' was disingenuous, as the slave state representatives did not want them to have the rights of persons, just to count as persons to grant their owners' states more political power. And 'antagonistic' can be quite broad, but not so much in this case-saying the owners of slaves can or does represent the slaves in any real way is monstrous. The Founders had just rebelled against the idea that a far-away Parliament in which they had no vote could fairly represent them, that a slave owner could represent their slaves interests was ludicrous. People have a vested interest in the welfare of their children and they developmentally can't advance their interests sufficiently and there was the legal fiction of coverture suggesting men could ably represent women, no such fiction existed for the idea that owners 'represented' slaves. And that this idea was ludicrous was a not uncommon realization, as Governour Morris said of the Compromise, “the inhabitant of Georgia and South Carolina who goes to the coast of Africa, and in defiance of the most sacred laws of humanity tears away his fellow creatures from their dearest connections and damns them to the most cruel bondages, shall have more votes in a government instituted for protection of the rights of mankind, than the citizen of Pennsylvania or New Jersey who views with a laudable horror so nefarious a practice.”

I can see a defense of the compromise to the effect of 'we had to agree to something totally rotten to get this project, which would with much hope get better and which was better than most arrangements at the time, off the ground.' I can't see a defense as 'well, it made some sense...' The 3/5th Compromise is an enduring indicator of how far we as a nation had to go to live up to our stated ideals.

Brett and Bart have both said something to the effect of 'well, since Democrat votes are so concentrated in some urban areas there's no way to draw the districts without having the effect described.' I think that's hogwash. What you do is draw many relatively small districts in more heavily populated urban areas and fewer and larger non-urban districts. We're a government of people, not rocks, trees, and places, our districting can reflect that.

I'd also like to take the opportunity to state my agreement with Brett about something: third party options need to be made easier to exist (I worked fairly hard in the old Reform Party in service to this idea). Ballot access should be relatively easy for third parties. The threshold for inclusion in at least the first debate should be low (polling around 5% for example, and this should be interpreted deferentially toward third party inclusion). Public finance funds, if available to anyone, should at some minimum level be available to any party or candidate that gets ballot access.

"You have the benefit of knowing, although your preferred candidate is a near pathological liar, her policies will be those if the highest bidder. The president from Goldman Sachs."

Considering your preferred candidate this cycle infamously got basically a gift loan from Goldman where his wife worked this is an example rich with chutzpah.

I'm reading Eric Foner's "A Short History of Reconstruction," and I just learned that the same issues raised by the 3/5 Clause occurred at the state level. Maryland's 87,000 slaves, Foner writes, "were concentrated in the counties of southern Maryland, whose large tobacco plantations recalled the social order of the Deep South. The area was economically stagnant, but its political leaders dominated the state, thanks to an archaic system of legislative apportionment that reduced the influence of Baltimore and the rapidly growing white farming counties to its north and west. ... Unionists committed to immediate and uncompensated emancipation swept the Maryland elections of 1863 and called a constitutional convention to reconstruct the state. ... [B]y basing legislative representation on the white population alone, [it] drastically reduced the power of the plantation counties."

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The sad fact about the Constitution in 1787 was that there would have been no Constitution in the absence of compromises with slaveholders. GA, SC, and NC certainly would have formed a Southern Confederacy if they hadn't been able to protect slaveholders, and VA might well have gone along, given how close a call it was in the VA convention after the racist demagoguery of Patrick Henry. It's not clear to me that this would have improved the lives of slaves.

Now, it's true that their lives didn't get any better for 60 years after 1790 and probably got worse in many ways. Not until the Civil War can we say that things got better. But the reason they did get better eventually is because there was a North that prospered and could fight to both preserve the Union and emancipate the slaves. How that might have played out with 2 (or more) Confederacies is impossible to say, except that the slaves would have suffered.

To steal a line from Theodosius Dobzhansky (who said it about biology and evolution), nothing in US history makes sense except in the context of slavery. That includes the Constitution, compromises with evil and all.

Edited the above for clarity.

"did not want them to have the rights of persons"

What does "the rights of persons" mean? I noted -- and don't see a refutation -- how even slaves had certain basic rights animals did not have. They were "persons." Legal writers of the day, including Southerners, spoke of this too. Slaves were a mix of person and property. This included some rights when accused of crimes & at times the ability to obtain freedom.

This low level of rights was weaker than were present in other slave societies in various respects (even at that time -- family integrity, e.g., was protected more for French slaves; IIRC, this was also true in certain Northern U.S. slave states). They were still "persons" and the Constitution says as much. If non-slaveowners or perhaps the courts had to hold them to it, so be it. Not that slaveowners didn't protect their rights in various contexts, including in freedom suits.

"The Founders had just rebelled against the idea that a far-away Parliament in which they had no vote could fairly represent them, that a slave owner could represent their slaves interests was ludicrous."

The Founders rebelled for various reasons and totally rejecting virtual representation is not necessarily something they all agreed with. This general statement also overall doesn't tell me how they felt about how local representation would work. You noted how there would be some sort of personal connection to women and children. Well, many said the same about slaves.

They made paternalistic comments about how they had a duty to their slaves. They partially used religion here. So, if you are going to reference what the Founders considered appropriate, you seem to be applying modern days views to what logically would follow. They had "vested interests" in protecting their slaves too. Unlike the West Indes, just letting them work until they died was not profitable. Also, some minimum level of care was necessary to prevent uprisings etc. Finally, part of their understanding of their role was a paternalistic concern, with all the obvious limitations that might entail. It's still not NOTHING.

This is just a minor defense but it is using modern day beliefs to put it down to this respect. Even non-slaveowners at the time -- ludicrous as it might seem to us -- saw slaveowners as in some fashion protecting the interests of slaves, paternally "representing" them as they might children and women. You can easily find people who opposed this, including the minority who rejected the 3/5 Compromise as ludicrous. But, selective citation is originalism child's play.

Mark Field's last comment is true enough but I stick by my comment.

It actually is a bit remarkable that given the importance of the slave states and the low regard for blacks/slaves that explicit limits on the rights of blacks and even slaves were so few. Don Fehrenbacher in his final book discussed how the federal government grew to be very slave friendly, but this was in no way compelled by the document. For instance, there was some general understanding that blacks could be denied federal citizenship but this was no way compelled by the text. The limited due process rights of blacks in the fugitive context also was in no way compelled. The assumption Congress had little power over slavery also was largely implication.

Mr. W:

Goldman Sachs and just about everyone else among the world plutocracy has paid and personally enriched your preferred candidate, not Ted Cruz, who reports a very middle class income.

The Clinton slush fund they call a "foundation" just took a new twist today. Nearly every penny of the Clinton's "charity" contributions disclosed to the IRS went into the slush fund they use to fund their lavish lifestyles and as a payroll for their daughter and dozens of cronies - all tax free.

Unless the already vague term "middle class" has been broadened to the point of analytical uselessness, Ted Cruz does not have a middle class income, let alone a "very middle class income." In fact, I would hesitate to put someone who earned the amount that Ted paid in taxes (good on him!) in that category.


Mista Wiskas: "What you do is draw many relatively small districts in more heavily populated urban areas and fewer and larger non-urban districts"

Um, it's already on an equal population basis. That doesn't have anything to do with the problem I pointed out.

Off to the beach!

Regarding slaves as persons under the 1787 Constitution, perhaps a study of the provisions in that Constitution pre-Civil War Amendments could focus on all of the references to "person" or "persons" to run down cases, federal and state, in which slaves were treated as such. (Maybe such a study has been done.) Until the Dred Scott case in 1857, courts (including southern courts) used the common law of Lord Mansfield's Somerset v. Stewart (1772) decision to sometimes make slaves free. Lysander Spooner had an extensive 1840s essay in which he claimed that slavery was unconstitutional. This was refuted in a response by abolitionist Wendell Phillips. But how much significant relief did a slave get in those days as a "person" under the Constitution compared to non-slave "persons." Besides Somerset there may be a few needles in the haystack of court decisions. And Dred Scott threw out as a practical matter those needles and there was an indication the Court would soon reject the principle of the Somerset case if and when the NY Lemon case reached the Court.

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Cruz currently earns a senator's salary, which in insanely expensive DC is a middle class salary.

The relevant point is, unlike the Clintons, Cruz is not selling influence for personal enrichment.

SPAM I AM!'s defense of the captain of the Cruz Canadacy in response to PMS fails to take into consideration market factors: Cruz has no influence to sell; after all, he lost to the fascist Trump. Evangelicals originally supported the Cruz Canadacy but Trump converted them into the Revengelicals. "Selling influence" is bipartisan as exemplified by lobbyists exercising 1st A rights (wink, wink). And soetimes it's merely the appearance of "selling influence." Regulating against this is quite difficult under the 1st A, although I would favor some form of limitations in addition to transparency.

Query: Is SPAM I AM! suggesting that Cruz many be "selling influence" but if so, not for "personal enrichment" but for some purely altruistic purpose?

Ted Cruz makes more than ten times the median income in Washington D.C. That's not "very middle class." It's important that we recognize this parallax because each party talks about how they serve the middle class. If you believe that $1.2 million a year is middle class while half of the people are making less than $90,000, the policies you develop may not be geared towards helping the people who are actually in the middle.

This is one factor that leads to a Trump: pretending that policies that help a middle-class senator are critical, but the poor (under $500,000? $300,000?) just need to work harder. There's a reason the man is talking about miners all the time--both parties have trouble addressing the actual poor and connecting with their frustrations.


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Dred Scott v. Sandford was wrongly decided and even one argument that it has some validity seems to me to be based on citizenship, not personhood.

I would be interested in learning more on the stray cases where the matter arose. A few cases in antebellum courts [including lower federal courts] dealt in the area of what process was required to return alleged fugitives. Multiple arguments were rejected, but the arguments were made, and "Justice Accused" is but one source that argues defeat was not as compelled as alleged at the time. And, there was serious pushback by the time of the Fugitive Slave Act of 1850 including on what process was due.

A blanket "blacks and/slaves were not persons" argument was not necessary. There were cases where blacks were not deemed federal citizens. A few cases involved Banner fame that reached the USSC (I asked the author of the biography of Key about this footnote and how this might mean blacks had standing in federal courts; he was intrigued but wasn't sure how much it mattered). It would seem given slaves were accused and convicted of crimes that something should have arose in federal courts at some point. The matter arose in state courts.

Another question would be the legal relevance of cases like the Amistad case where the legal interests of the putative slaves were at issue in various ways. IOW, though directly not at issue perhaps, they were treated as "persons" in some fashion.


here's just one analysis:

The practice was clearly mixed but slaves had "trials" and in at least a few cases, slaves even had the right to testify. A person testifies. Slavery did make the personhood of the slave complicated, but it was repeatedly stated:

Paul Finkelman is a leading expert in field of antebellum slaves and the law.

He argues there was some implications in a few cases that slaves were considered persons in some sense but repeatedly were treated like property -- see, e.g., Prigg v. PA. But, like his "necessity defense" of the Fugitive Slave Clause, Story's argument there was open to strong debate even there. Ultimately, like other debates, the meaning of the document was left to practice. Spooner was atypical, but like Lincoln at Cooper Union, the fact slaves were cited as "persons" in the Constitution was recognized and the implications raised if often in breach.

[This is a big aside but same sex marriage was once deemed risible; who is to know what would happen in an alternative universe if slavery lingered into the late 19th Century. The rights of slaves very well might have been treated differently. Shag, e.g., alluded to Lemon case that was on the road to the Supreme Court & the Civil War happened. It might have been handled differently with Lincoln justices.]

PMS is correct but "middle class" is more a state of mind in this country in a range of cases. It is seen as some ideal, the average person ideally "middle class." I think too much emphasis is made to protect the interests of the "middle class." This includes by the Democrats. Many people are not "middle class" and their interests matter too. A general statement of interests would be my choice with obvious knowledge that there are poor, working and other people whose needs should be considered specifically.


What part of a senator's salary did you miss?

Cruz took a pay cut when he entered public service, the Clintons joined the evil 1%.

"The Migration or Importation of such Persons as any of the States now existing shall think proper to admit shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person."

The idea that slaves were not, constitutionally, "persons", was a total crock, and I'm pretty sure Taney knew it.

The words "person" or "persons" are used many times in the Constitution of 1787, including the bill of rights ratified in 1791. Is it clear that the definitions of such words are consistent in each instance of use? Condider the 5th A:

"Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Did slaves have the benefits of a "person" under the 5th to the extent of non-slaves prior to the Civil War Amendments, especially regarding "life, liberty or property"?


Taney's argument in Dred Scott was that blacks could not be citizens, not that they weren't persons.

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