Category Archives: Constitution

Speaking of White Privilege….

In the wake of the election, there has been a renewed call to get rid of the Electoral College–or at least modify its operation via the National Popular Vote Project to require electors to vote for the candidate who wins the popular vote.

The Electoral College was originally a concession to the slave states, allowing them to “count” their slaves (albeit at a discount). Today, it has all sorts of pernicious and undemocratic effects. Not long ago, Jamin Raskin, who teaches Constitutional law at George Washington University, summed up a number of those effects in a post to the American Constitution Society’s blog. Raskin noted that,

in the absence of the Electoral College, it would no longer make strategic sense to “turn off the lights and fly over 40 states – from California to New York, Texas to Vermont, Georgia to Mississippi, Hawaii to Alaska, South Dakota to Montana, and so on.” And he disputed the argument that the rest of the electorate “should be content to be long-distance spectators because the voters of Virginia or Arizona or Florida are just like us and are effectively acting as proxies for our interests and our values.”

This was precisely the argument that was rejected in the American Revolution.

The British tried to convince the American colonists that they didn’t need their own elections and representatives in Parliament because they were “virtually represented” by members back home representing Englishmen of similar views. The colonists rebelled against this insulting doctrine of “virtual representation,” which they treated as an assault on political liberty and authentic democracy rooted in the politics of place. Roughly 140 years later, we similarly rejected claims that women didn’t need the vote because they were adequately represented by men.

Every citizen’s vote should count equally in presidential elections, as in elections for governor or mayor. But the current regime makes votes in swing states hugely valuable while rendering votes in non-competitive states virtually meaningless. This weird lottery, as we have seen, dramatically increases incentives for strategic partisan mischief and electoral corruption in states like Florida and Ohio. You can swing a whole election by suppressing, deterring, rejecting and disqualifying just a few thousand votes.

My own biggest “gripe” is, as I have previously written, the extra weight the system gives to votes from rural areas. In effect, urban votes count less and rural preferences count more–an anti-democratic result. But an analysis by Vox has confirmed that it isn’t only voters from more thinly populated areas who are privileged by the system. The Electoral College also privileges the votes of white Americans.

The probability of one person’s vote being decisive, we found, ranged from roughly one in a million for a resident of New Hampshire — a swing state with a relatively small population — to less than one in one billion in states that are reliably “red” or “blue,” such as New York, California, Kansas, and Oklahoma.

We can use a similar approach to show how the Electoral College increases not just the weight of voters in swing states but the weight of voters of certain ethnicities — based on their distribution across the states. We find that, based on the current distribution of voters of different ethnicities across states, and particularly within swing states, the Electoral College amplifies the power of white voters by a substantial amount….

After running the numbers, we estimate that, per voter, whites have 16 percent more power than blacks once the Electoral College is taken into consideration, 28 percent more power than Latinos, and 57 percent more power than those who fall into the other category.

I’m sure that analysis warms the cockles of Bill O’Reilly’s heart. (I assume he does have one. Somewhere.) It doesn’t do much for mine.

Rule of Law? Respect for Democracy? Not in the Age of Trump…

Remember the quote–attributed to John Adams–to the effect that the then-new American Constitution had created “a government of laws, not men”?

One of the most important improvements in our human efforts to improve governance was development of the concept of rule of law–the radical notion that fair rules should be established and everyone–including government officials and others in positions of power– should be expected to follow those rules (including the rules on how rules should be changed).

Adherence to the rule of law, in spirit and fact, is absolutely essential to the legitimacy of a governing authority.

Which brings us to the truly outrageous behavior of Republican lawmakers in North Carolina. As the New York Times reported earlier this week,

Republicans in the North Carolina legislature on Wednesday took the highly unusual step of moving to strip power from the incoming Democratic governor after a bitter election that extended years of fierce ideological battles in the state.

After calling a surprise special session, Republican lawmakers who control the General Assembly introduced measures to end the governor’s control over election boards, to require State Senate approval of the new governor’s cabinet members and to strip his power to appoint University of North Carolina trustees.

Republicans also proposed to substantially cut the number of state employees who serve at the governor’s pleasure, giving Civil Service protections to hundreds of managers in state agencies who have executed the priorities of Gov. Pat McCrory, a Republican.

These extraordinary steps–taken in the wake of a democratic (note small “d”) election that produced a result displeasing to the state’s GOP–unquestionably violate democratic norms, and may well violate the North Carolina state constitution.

The election of a Democratic governor came despite sustained Republican efforts to suppress African-American votes–efforts so transparently and blatantly aimed at (disproportionately Democratic) black voters that a court described them as “surgical.” Several of those measures were struck down, but a number of others–moving polling places, shortening voting hours–had the intended effect.

Even in the face of massive vote suppression, the Democratic gubernatorial candidate somehow won.Hence the special session to strip the new Governor of authority–and the transformation of North Carolina government into an illegitimate putsch.

As the Times editorialized

This legislative power grab is the latest underhanded step by a state Republican Party desperate to stay in power in a state where demographic changes would normally benefit Democrats. Republicans in North Carolina, a presidential battleground state, have used aggressive redistricting and voting suppression measures that are among the most brazen in the nation to win elections. The courts have blocked some of these efforts, but Republicans have found workarounds, for instance, by limiting voting hours and sites.

Calling what is happening in North Carolina a “legislative power grab” is like calling cancer a “minor illness.” It is a shocking violation of democratic norms, and a frontal attack on the rule of law.

It is one more element in America’s current wholesale retreat from the principles that did make America great.

Welcome to the Resistance

A couple of weeks ago, I was invited to speak to a “Women’s Rally for Change,” along with the Executive Director of Planned Parenthood and the Democratic candidate for Lieutenant Governor. The purpose was to discuss how to resist the coming assault on women and minorities, and to answer the increasingly common–and increasingly urgent– question: what can I do? What specific actions can I take?

The Rally was promoted only by Facebook posts; organizers hoped a hundred women might attend. We were stunned when five hundred women crammed into a space meant for far fewer, and another four hundred had to be turned away. (Future events, in larger venues, will be posted to a Facebook page established in the wake of the event: Women4ChangeIndiana.)

Several people who could not attend have asked me for copies of my remarks, so I’m posting them here. (Regular readers of this blog will find much of what follows repetitive….sorry about that!)

_________________________

We are facing divisions in this country unlike anything we’ve seen since the 60s, or maybe the Civil War. If America is to emerge reasonably intact, we need to look honestly at what just happened.

The ugly truth is that most of his voters saw Trump’s bigotry, misogyny and authoritarianism as features, not bugs. They didn’t overlook his appalling behaviors—those were what attracted them. They applauded his repeated attacks on “political correctness” and routinely told reporters that what they liked about him was that he “tells it like it is.”

The attitudes most predictive of support for Trump were racial resentment and misogyny—not economic distress.

Clinton won the popular vote, but because the Electoral College gives greater weight to votes from rural areas, she lost the Presidency. This is the 2d time in 16 years that the person who won the most votes was not elected.

The next few years are going to be very painful. Americans will lose many of the protections we have come to expect from the federal courts, probably for the foreseeable future. Economic policies will hurt the poor, especially women and children, and exacerbate divisions between the rich and the rest of us. A Trump Administration will abandon efforts to address climate change, and will roll back most of Obamacare. There will be no immigration reform, and God only knows what our foreign policy will look like. Worst of all, Trump’s normalization of bigotry will play out in a variety of ways, none good.

Sandy asked us to focus our comments on issues affecting women—but when you think about it, all of these issues will disproportionately affect women and children. And by far the worst for women is something we can’t reverse through legislation at some future time—a return to cultural attitudes that objectify and demean us.

So – what can we do, sitting here in overwhelmingly Red Indiana?

As individuals, beginning right now, we can support organizations that work to protect women’s rights, civil and reproductive liberties and public education, among others. A friend of mine and her husband, who stand to benefit from Trump’s proposed tax cuts, have decided to donate every dollar they save by reason of those cuts to organizations like Planned Parenthood and the ACLU. We might start a local “pledge my tax cut” campaign.

Perhaps the most important thing we can do is focus on local efforts to ameliorate the effects of likely federal actions. Most of the innovation and action on climate change, for example, is happening in cities, and it is much easier to influence local policy than state or national legislation. Those of us worried about the environment can make sure our cities are at the forefront of urban environmental efforts. There are other policy areas where—depending upon relevant state law—cities can mitigate the effects of federal action or inaction. Since the election, for example, several cities have decided to become Sanctuary cities, protecting undocumented people.

We can and must work to create inclusive and supportive local civic cultures that work against misogyny, bigotry and intolerance. We are already seeing a substantial increase in racist, homophobic, anti-Muslim and anti-Semitic incidents, and we need to create a civic environment that strongly discourages bigoted attitudes and behaviors. Cities have ready-made partners in those efforts, in arts organizations, civic and religious associations and the business community. I hereby volunteer to help mount a campaign focused on encouraging a welcoming, inclusive, respectful civic environment.

And if  the new Administration really does establish a Muslim registry, we all need to register as Muslims.

In the longer term, we have to reform America’s election system. The first order of business is to get rid of the Electoral College, which favors rural voters over urban ones and generally distorts the democratic process. The person who gets the most votes should win the election. We should work with groups like the League of Women Voters to get Indiana to sign on to the National Popular Vote Project, to oppose gerrymandering and to make voting easier, not harder.

We also have to defend our public schools and improve civic education. “We the People” or a similar curriculum should be required for High School graduation. Trump made all kinds of promises that he could not constitutionally carry out. Perhaps recognizing that wouldn’t have mattered to the kind of people willing to vote for him—but it might have.

Sandy asked each of us to identify issues of particular significance to women that we might win at the Statehouse. Given the composition of our legislature, we face an uphill battle, but here are some suggestions:

  • Work with local business and civil rights groups to expand Indiana’s civil rights law to include LGBTQ Hoosiers.
  • Work with Planned Parenthood, the ACLU and other organizations to prevent passage of added restrictions on abortion that more conservative courts would uphold. We’re already seeing that effort in Indiana.
  • Work with advocates for public education to scale back Indiana’s voucher program, the largest in the country, that benefits parochial schools at the expense of public ones.
  • Require effective civic education for graduation from H.S.

If there has ever been a time to be an activist, this is it.

 

Legitimacy Cannot Be Stolen

Power can be stolen. Legitimacy must be earned.

I was reminded of the difference by a recent Huffington Post article by Geoffrey Stone. Stone is an eminent Constitutional scholar who teaches at the University of Chicago; I’ve used his texts on constitutional history and analysis both as a law student and more recently as a professor. As he writes,

Throughout my career, I have honored the fundamental role the Supreme Court plays in our system of government. There have, of course, been many Supreme Court decisions with which I’ve disagreed over the years, but I have always respected the essential legitimacy and integrity of the Supreme Court as an indispensable institution in our American democracy.

But now, for the first time in my career, I find myself hesitating. This is not a reflection on the judgment or integrity of any of the current or former justices. It is, rather, a reflection on what the Senate Republicans have done to the fundamental legitimacy of the Supreme Court in the future. By refusing to confirm President Barack Obama’s appointment of Chief Judge Merrick Garland to the Supreme Court, Senators Mitch McConnell, Charles Grassley, and their Republican cronies betrayed our constitutional traditions and undermined a central principle of American democracy. Although they maintained that their unconscionable behavior was “justified” by the fact that the vacancy arose during President Obama’s final year in office, this was a blatantly dishonest assertion. In fact, a long line of presidents have made appointments to the Supreme Court in the final year of their terms, including such historic figures as George Washington, Thomas Jefferson, Andrew Jackson, Abraham Lincoln, William Howard Taft, Woodrow Wilson, Herbert Hoover, Franklin Roosevelt, and Ronald Reagan.

Those of us in the legal community–Republican and Democrat alike–have pointed to this unprecedented obstruction as additional evidence that American government is broken–that it has become deeply dysfunctional.  As Stone notes, this profoundly un-American behavior was based upon “rank partisanship”–the hope that a Republican President would appoint a judge more to their ideological liking.

In the great tradition of “be careful what you wish for,” however, the actions of these Senators will have had a very unfortunate effect: they will permanently  undermine the legitimacy of anyone who ultimately joins the Court.

Their unconscionable behavior will rightly cast severe doubt on the legitimacy of whatever individual President Trump appoints in place of Chief Judge Garland. Every vote that justice casts in the future will be called into question, because that justice will be sitting on the Supreme Court bench because of nothing less than a constitutional coup d’etat. Through no fault of his or her own, that justice will be seen as an interloper who should never have been appointed to the Court.

Stone reminds readers that the last effort to do a political “end run” around a Court was FDR’s “court packing” scheme, a response to the then-Court’s invalidation of progressive legislation intended to ease the Depression. Even though the Democratic base deeply disapproved of the Court’s rulings, however, Democratic Senators rejected Roosevelt’s plan.

Indeed, even Roosevelt’s Vice-President, John Nance Garner, publicly scorned the plan as unprincipled. In short, those Democrats – those principled public servants – understood that even a crisis like the Depression could not justify so craven a distortion of the traditional procedures and practices of government in order to achieve politically desired ends.

It’s hard to find fault with Stone’s concluding paragraph:

As a sign of the moral corruption that now plagues our nation, though, in this instance Senate Republicans, caring more about outcomes than principles, ruthlessly distorted the advice and consent process in order to attain partisan political ends. That this happened is nothing short of disgraceful. Let us not forget their shameful abuse of authority. And let us not forget that President Trump’s first appointment to the Supreme Court will in fact be an illegitimate interloper who has absolutely no business being the decisive vote in critical Supreme Court decisions in the years and decades to come. By this act, Senate Republicans have undermined the credibility and the legitimacy of an essential branch of our national government. Shame on them.

“Repealing” Roe v. Wade

On 60 Minutes, Donald Trump evidently claimed that “repealing” Roe v. Wade would be a priority.

Among the many, many things our next President does not understand is how government actually works. He may be surprised to discover that Congress–even one dominated by GOP culture warriors–cannot “repeal” a Constitutional right.

That is not to say that Roe is safe, only that it will take several years and some fairly creative judicial legerdemain to completely reverse current case law.

Here is how it will play out.

Trump will have an immediate appointment to the Supreme Court, and may well have one or two others during a four-year term. He has pledged to appoint a social conservative, and that’s a pledge he’s likely to keep. Once a case implicating reproductive choice works its way up to the Supreme Court, that newly conservative Court will take the opportunity to further limit what previous Courts have confirmed: it is a woman’s constitutional right to control her own body. Perhaps the newly constituted Court will reverse Roe outright, perhaps not–but the effect will be the same.

Reversing Roe entirely would leave the legality of abortion up to the individual states. We would go back to the time–a time I vividly remember– when women who could afford to do so traveled to states where abortion was legal, and a significant number of the women who couldn’t afford to do that died in back-alley, illegal operations.

As my friends at Planned Parenthood like to point out, women didn’t begin getting abortions after Roe v. Wade. They just stopped dying from them. 

The only thing prochoice Americans can do to thwart this cynical and theocratic agenda is work tirelessly to prevent their state legislatures from passing new, restrictive measures that are intended to provide the Court with an opportunity to “revisit” the issue. (Here in Indiana, a State Representative has already announced his intention to submit a bill that would criminalize abortions and punish the women and doctors who participated in them. I’m sure theocrats in other states are equally eager to test the anticipated new boundaries.

Given the number of deep red states populated by religious fundamentalists, the odds of defeating all of these throwbacks aren’t good. So while Trump cannot “repeal” reproductive liberty, he can sure eliminate it.

I think the legal terminology is: we’re screwed.