Tag: US Constitutional History

Rehabilitating Our Democracy

The Daily Escape:

Christmas lights, New Milford Green, New Milford CT – December 2021 photo by Tom Allen. New Milford was founded in 1709.

James Fallows writes a column called “Breaking the News”. His most recent article looks at the growing mismatch between the formal structure of the US government (two Senators per state and the House ceiling of 435 members), and the astonishing population growth in the US since the Constitution was ratified in 1788.

Fallows says the main problem is that modern America is running on antique rules that are too hard to change and too easy to abuse. He sees a Constitutional shift from protecting minority rights, to enabling minority rule, which ultimately means a denial of democracy. A system that is not steered by its majority will not survive as a democracy.

Fallows outlines the changing nature of big vs. small in America. When the Constitution was being negotiated, two issues were big states vs. small states, and slaveholding states vs. non-slave states. At the time, the three most populous original states had around 10 times as many people as the three smallest. That was behind the agreement to the two-Senators-per-state deal. But today, the three most populous states—California, Texas, and Florida—have about 45 times the population of the three least populous, Wyoming, Vermont, and Alaska.

Second, the ceiling on the size of the House of Representatives must change. Fallows observes that when the country was founded, there were 65 members of the House. For the next century-plus, the size of the House increased after the Census, following changes in the US population. Just before World War I, the number was capped at its current level of 435. Today, the US population is about 90 times larger than it was in 1788, but the House is just 7 times as large.

Today there’s a bias against the needs of urban and suburban populations. There’s also a distinct small-state bias in the Electoral College. Each state’s representation in the Electoral College votes equals it’s number of Senate and House representatives. As House membership expanded through the 1800s from 65 to 435, House seats became relatively more important in Electoral College totals, and Senate seats relatively less so. From Fallows:

“To spell it out, in the first presidential election, Electoral Votes based on Senate seats made up nearly 30% of the Electoral College total. By 1912, the first election after House size was frozen, they made up only 18%.”

If the House were expanded, then the Electoral College outcome would more closely track the national popular vote.

Jill Lepore writing in the New Yorker, says that the US Constitution was the first national constitution that provided for its own revision. Article V is the amendment clause. The founders knew that the Constitution was imperfect; Article V left a Constitutional means for making it “more perfect.” Without an amendment provision, the only way to change the rules is to overthrow the government.

But it’s extremely difficult to amend our Constitution. Lepore says:

“The US Constitution has been rewritten three times: in 1791, with the ratification of the Bill of Rights, the first ten amendments; after the Civil War, with the ratification of the Reconstruction Amendments; and during the Progressive Era, with the ratification of the Sixteenth, Seventeenth, Eighteenth, and Nineteenth Amendments.”

She points out that by contrast:

“…American state constitutions have been amended over 7,500 times, amounting on average to 150 amendments per state.”

While state governments freely change, the US Constitution doesn’t. America’s older, but not necessarily wiser.

We could approve the National Popular Vote Interstate Compact. It would guarantee the presidency to the candidate who receives the most popular votes. The Electoral College has 535 votes, with 270 needed to win the presidency. In 2020, had 21,461 Biden voters actually switched to Trump, Trump would have won the Electoral College with 270 votes, despite Biden winning nationally by 7 million votes. Each of those 21,461 Biden votes (5,229 in Arizona, 5,890 in Georgia, and 10,342 in Wisconsin) were 329 times more important than the other 7 million votes.

The Compact would end the “winner-take-all” laws in the 48 of 50 states. If passed, the Compact would award their electoral votes in proportion to the votes the candidate receives. Article II gives the states exclusive control over the choice of method of awarding their electoral votes, so they can reform the system if they choose. The Compact would go into effect when enacted by states comprising at least 270 electoral votes.

Time to wake up America! Our current ineffective federal government must change. Otherwise, democracy is doomed.

To help you wake up, watch “Peace Train”, the 1971 anthem of hope and unity written by Yusuf/Cat Stevens, performed here by Playing for Change. This version features Keb’ Mo’ playing in CA, along with Yusuf playing in Istanbul, Rhiannon Giddens in Ireland, along with musicians from 12 countries:

This song is more relevant than ever.

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Monday Wake-Up Call — Constitution Edition

The Daily Escape:

Spruce Knob, WV at sunrise – 2018 photo by zjustus88

Sept. 17 is Constitution Day, commemorating the signing of the US Constitution 231 years ago, the day that the Constitutional Convention adopted the Constitution as our supreme law.

We sometimes forget that the country was without a Constitution for 11 years after the Declaration of Independence, and for six years after the War of Independence ended. Somehow, we survived.

We also forget that there was plenty of conflict between the founding fathers at the Constitutional Convention. They had vigorous debates about the balance of power between the national and state governments. Two factions emerged: Federalists, who supported the Constitution and a strong central government, and anti-Federalists, who mainly supported strong state governments.

To placate the anti-Federalists and ensure ratification, the Federalists promised to pass a Bill of Rights to protect individual liberty and state sovereignty, which they finally did in 1791, four years after the Constitution was ratified.

Today there’s plenty of discussion about the Constitution, about what’s constitutional, and what’s not, about which of the Supreme Court justices are trampling on the Constitution and which are ripping it to shreds. It seems that there is nothing more important to the Republic than selecting the next Justice, in this case, Brett Kavanaugh.

Joseph Ellis in the WSJ Weekend edition, reminds us that:

Most members of America’s founding generation would have regarded this situation as strange. If you read the debates among the delegates at the Constitutional Convention of 1787, and then read their prescriptions for judicial power in Article III of the Constitution, it becomes clear that the last thing the 39 signers of the document wanted was for the Supreme Court to become supreme.

Ellis says that the founders thought that Congress should be “supreme”, and a majority thought that each branch of government should decide the scope of its own authority. He says that the founders’ had no interest in having the Supreme Court be the ultimate control point for the US government, since it’s our least representative body, and the one farthest removed from the ultimate authority (the People).

More from Ellis:

For most of American history, the Supreme Court only infrequently stepped forward to redefine the political landscape in decisive fashion. The two most conspicuous occasions both involved the great American tragedy of race.

For Ellis, the first of the two most significant cases was Dred Scott v. Sandford (1857), in which the Court tried to resolve the politically unsolvable problem of slavery. The majority argued that the framers of the Constitution clearly regarded slaves as property, and therefore the Missouri Compromise (1819) and the Compromise of 1850 were unconstitutional.

This meant that the federal government had no authority to limit the expansion of slavery in the western territories. Dred Scott deepened the sectional divide that led to the Civil War, and legal scholars and historians have long considered it one of the worst Supreme Court decisions in American history.

In 1954, the Supreme Court, in Brown v. Board of Education landed on the other side of the racial divide, striking down the legal doctrine of “separate but equal” that the justices had upheld as a justification for racial segregation in Plessy v. Ferguson (1896). The Brown decision signaled a crucial shift in the role of the Court, the first step on its way to becoming the dominant branch of the federal government in deciding the direction of domestic policy.

That led to 30 years of liberal decisions for the Court. The liberal agenda expanded the rights of criminal suspects, broadened the definition of free speech and, in Griswold v. Connecticut (1965), discovered a new right to privacy. Building on the right to privacy, the Court affirmed a woman’s right to abortion during the first trimester in Roe v. Wade (1973).

Ellis concludes:

…since Brown we have watched the Supreme Court bend the law in two different directions, landing on one side or the other of the political spectrum based on which political party could command a 5-4 majority. The only difference between the two sides is that liberals are transparent about their political agenda, while conservatives, using originalism to make problematic claims of detachment, are not.

Americans now know that the Supreme Court is biased, partisan, and often makes rulings based on ideology versus law. The word “unconstitutional” has become a catch-all term for whatever we don’t like about our government, or our society. This renders one of the most terrifying and powerful adjectives in American jurisprudence almost meaningless.

TIME TO WAKE UP AMERICA! We should spend Constitution Day trying to become better citizens. Maybe we start by learning our civic history.

The benefit should be clear: Knowledge lets us understand and appreciate nuance.

After all, America might not have many more birthdays left at the rate that we keep polarizing our ideas about the Constitution.

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Monday Wake Up Call – July 24, 2017

The Daily Escape:

Toronto Canada – photo by Carlos D. Ramirez

We sometimes forget what the Amendments to the Constitution are about. We remember the 1st Amendment and these days, with several in the Trump administration about to testify before Congress, we have renewed interest in the 5th, but who knows anything about the 17th Amendment?

It provides that Senators are directly elected by citizens.

The idea that we directly elect our senators seems uncontroversial, but the Tea Party and the American Legislative Exchange Council (ALEC), want to change that. ALEC has proposed new “model legislation” to do away with an elected Senate.

The idea of reversing 104 years of representative democracy and returning to the days when senators were chosen via backroom deals, is not new. The John Birch Society peddled the proposal decades ago. But with the rise of the Tea Party, the notion moved into the conservative mainstream.

In 2010, the Tea Party called for revision or repeal of three Constitutional amendments: the 14th (which is the basis for federal protection of civil rights), the 16th (the income tax) and the 17th. Some Tea Partiers even linked evangelical Christianity and Libertarian economics to argue that the original 1789 Constitution and the Bill of Rights were divinely inspired, but all subsequent amendments were of human origin and the 14th, 16th and 17th in particular had been Satanic perversions of the divine plan.

From The Nation:

Let’s focus on the 32 legislatures where Republicans have control: If Republicans were to maintain their current advantage, and if they were empowered to replace all sitting Democratic senators at the end of their current terms, they could shape a Senate with at least 64 Republican members.

There is already a political imbalance in states with large urban populations. In 2016, for instance, 51,496,682 Americans cast ballots for Democratic Senate candidates, while 40,402,790 cast Republican ballots, yet the Republicans took 22 seats to 12 for the Democrats.

If the resolution is approved by ALEC’s members, it will become part of ALEC’s agenda for the states—advanced in each by legislators who have a long-established pattern of rubber-stamping ALEC’s “model legislation.”

But, it is a long distance from model legislation to an amendment to the Constitution. ALEC controls some states, but it doesn’t control 38 states to the extent that they are capable of repealing one of the nation’s core political reforms. OTOH, if they were successful, it would reverse one of the great strides toward democracy in American history: the 1913 decision to end the corrupt practice of letting state legislators barter off Senate seats in backroom deals with campaign donors and lobbyists.

People in the 19th century knew that votes for state representatives were proxy votes for electing their Senators. The Lincoln-Douglass debates involved two Senate candidates trying to sway the elections of state legislators in order to get one of them elected to the Senate.

But, in 2017, returning the nation to direct election of Senators by state legislators is just one of the many ideas Republicans have for revamping the American system into a one-party state, including extreme gerrymandering of Congressional and state legislative districts, restrictive voter-ID laws, ending early voting, and other tricks designed to make sure that people unlikely to vote Republican have difficulty voting at all.

It’s amazing, and downright scary that the American Right looks at the structure and apportionment of the Senate and decides it’s not yet tilted enough in their favor. The Senate is already an undemocratic, unrepresentative institution that overweights small states at the expense of large ones.

The idea of a 17th amendment repeal is a classic example of “we had a serious problem, and then we fixed it, but so much time has passed, people have forgotten what the problem was”.

They want to undo the fix without bothering to check history.

America! It’s time to wake up and learn your history. It’s crucially important to you, your kids and grandkids. We don’t want to repeat past mistakes. To help you wake up, here is “Non-Stop” from the play “Hamilton”. It reprises the time of writing The Federalist papers, and the establishment of our Constitution, in hip-hop format:

Those who read the Wrongologist in email can view the video here.

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