Category Archives: Constitution

The Founders And The Filibuster

Among the many forgotten lessons of America’s past is the abysmal failure of the nation’s first constitution, the Articles of Confederation. Thanks to the widespread absence of effective civics instruction, much of the public is unaware of the very existence of America’s first effort at nation-building, let alone the reasons that initial effort failed.

The Articles had numerous flaws–mostly attributable to the reluctance of the colonies to cede authority to a central government. Probably the best-known weakness of that first effort was the inability of the new central government to levy taxes. The central government could ask for revenues–for example, monies to retire debt amassed during the Revolutionary War–but if a state didn’t want to pay, it didn’t pay, and the federal government could do nothing about it.

The lack of a dependable revenue stream wasn’t even the worst of it. Under the Articles, any changes to the structure or operations of government needed a unanimous vote of the 13 colonies–and most other policies required the concurrence of a super-majority. Those provisions made governing impossible. When the Founders met in Philadelphia to replace the fatally-weak Articles with the Constitution, changing that unworkable super-majority requirement was  high on their “to do” list.

What we know of that history and the Founders’ antagonism to government by super-majority should inform our approach to the current iteration of the Senate filibuster.

Ezra Klein recently hosted Adam Jettleson, a longtime Senate staffer, on his podcast, and reported their conversation in a column for the New York Times. Jettleson pointed out that one of the biggest misconceptions about the filibuster is the idea that it promotes bipartisanship.

In fact, it does the opposite because it gives the party that’s out of power the means, motive and opportunity to block the party that’s in power from getting anything done. And when the party that’s in power doesn’t get anything done — when voters see nothing but gridlock from Washington — they turn to the party that’s out of power and try to put them back in office.

Republicans are well poised to take back majorities in both the House and Senate — all they need is a handful of seats to do so. So they have every rational, political incentive to block Biden from achieving any victories. A program that would cut child poverty massively would be a huge victory for Biden. And the ability for Biden to pass it on a bipartisan basis would be a huge victory for his campaign promise to restore bipartisanship and unity.

Jettleson reminded listeners that the Framers had anticipated this very situation. They identified this huge drawback with supermajority thresholds in 1789, when they had direct firsthand experience with the Articles of Confederation.

In Federalist 22, Alexander Hamilton addresses this misperception head-on. He says, “What at first sight might seem a remedy,” referring to a supermajority threshold, “is in reality a poison.” You might think it would cause compromise, but really what it does is it provides an irresistible temptation for the party that’s out of power to make the party in power look bad.

As Klein observed, bipartisanship is something the majority wants, but the minority has no incentive to give–something  Mitch McConnell certainly understands. During the first years of the Obama administration, McConnell knew he could win the majority back by sabotaging its ability to govern–that the majority party will inevitably get the blame for gridlock, no matter how unfair that may be.

The mischief being done by the current iteration of the filibuster has become obvious. It continues to prevent the Senate from functioning properly–for that matter,  as Jettleson documents in his recent book, “Kill Switch,” it pretty much keeps the Senate from functioning at all.

A mountain of evidence suggests that it is long past time to get rid of the filibuster.

The question, then, is why Democratic senators like Joe Manchin and Kyrsten Sinema continue to defend it.

Lessons From Georgia

If Jews recognized saints, I’d lobby for Stacy Abrams.

Readers of this blog undoubtedly know the impetus for “Fair Fight,” her organization dedicated to combatting vote suppression and increasing registration of previously unregistered/unmotivated citizens. Abrams ran for Governor against Brian Kemp, who was then the Secretary of State administering that same election, a glaring conflict of interest. Kemp threw out some fifty-thousand registrations–most of which were from Black voters–on what observers called thin pretexts, which helped him win that election.

Abrams, formerly minority leader of the Georgia Statehouse, did what far too few of us do in such circumstances. She didn’t retreat to lick her wounds; instead, she created a movement to challenge vote suppression, engage the previously disengaged, and make the system work properly.

As an article in the New York Times yesterday put it, Abrams is currently one of the most influential American politicians not in elected office.

Abrams conceived the strategy and built the political infrastructure its implementation required. As a result, turnout among the state’s Black, Latino and Asian voters increased substantially. Her work was pivotal to Biden’s presidential win in Georgia, and in yesterday’s Senate run-offs.

Of course, yesterday’s stunning results also owed a debt to our insane President, whose illegal, embarrassing and unhinged attacks on the Republicans running Georgia’s election apparatus evidently depressed turnout in areas that were previously heavily pro-Trump. (As one Republican official reportedly noted, the GOP had to overcome the burdens of unappealing candidates and a maniac President..)

So–improbable as it may seem, the very southern State of Georgia will send a Black man and a Jewish man to the U.S. Senate. (File under “Miracles Happen.”)

Aside from the depressing fact that some 70 million Americans cast  ballots for the maniac, and the even more horrifying sight of a mob of goons, thugs and White Supremacists storming the Capitol yesterday in an attempted coup to support that maniac (more about that tomorrow), what lessons can we take from the ways in which this election cycle has played out thus far? 

The most obvious lesson–courtesy of Stacy Abrams–is the importance of grass-roots organizing. Whether a similar effort in Indiana would be effective is debatable, since our state lacks the substantial minority population on which Abrams built. But it certainly seems worth a try.

There is also a less obvious, but equally important lesson, and it is the extreme damage done by the way the electoral college operates today,and gives oxygen to the Trumpian mobs.

The linked op-ed, co-authored by Trevor Potter and Charles Fried, makes that case. Potter is a former chairman of the Federal Election Commission, appointed by George H.W. Bush.  Fried was solicitor general under President Ronald Reagan. (Hint: They aren’t among those “socialists” that Republicans see everywhere.)

Potter and Fried argue that the 2020 presidential election has been a disaster for people who think the Electoral College is still a good idea.

The presidential election is really 51 elections, each conducted and certified by its jurisdiction. Those who support the continued use of the Electoral College system say that the states “speak” to one another through it and so it performs a vital role in promoting national unity and the constitutional system…

But the multiple challenges to the votes of the people this year — expressed through the states and their votes in the Electoral College — teach us that the Electoral College is a fragile institution, with the potential for inflicting great damage on the country when norms are broken. Many of the attempts to subvert the presidential election outcome this year are made possible by the arcane structure and working of the Electoral College process and illustrate the potential for the current Electoral College to promote instability rather than the stability the framers sought.

Actually, I agree with the historians and constitutional scholars like Akhil Reed Amar, who argue “stability” had nothing to do with it–that the Electoral College was the price paid to keep slave states in the newly formed union. But Potter and Fried are certainly correct when they assert that this election cycle has provided a roadmap to politicians of either party who want to change an election’s outcome through postelection manipulation of the Electoral College, and that the mere existence of such a roadmap is destabilizing.

All of this will, and should, propel calls for modernization of the Electoral College. Many will seek its abolition and replacement by a single nationwide poll. But at the very least, the irrational intricacies of the 1887 Electoral Count Act should be replaced by a uniform system guaranteeing that the popular vote in each state controls the ultimate allocation of that state’s electors. The 2020 election has highlighted the destabilizing tendencies in the current system and the need for reform.

Americans have a lot of work to do. In the interim, I plan to light a candle to Stacy Abrams…

 

Very Interesting…

Most of us of a “certain age” remember Arte Johnson’s Laugh In character who would emerge from undergrowth at points in the show and declaim “Veery interesting!”

A reader sent me a column that elicited a similar sentiment from me as it had from him. He wanted to know whether the legal points being raised were accurate. As I indicated, it’s an area far beyond what expertise I still–or ever–had, but I promised to do a bit of research.

The article itself, titled “Who’s Afraid of Mitch McConnell,” asserted that even in the absence of wins in Georgia, Kamala Harris has authority under the Constitution to call on any senator who will call up one of the numerous bills on which McConnell has refused to allow  a vote. Lawyers who read this blog can click on the link and draw their own conclusions.

I did some limited research, but Dr. Google let me down, so I turned to a couple of lawyers I know, who met my very stringent criteria: they had to be good lawyers, they had to be politically savvy, and they had to be nice people who were likely to humor me. (So–one of my sons and a friend who is really, really smart. Both named David.)

That friend summed up the problem with the article’s thesis thusly:

Certainly not my area of expertise, but I see three problems with the analysis.

First, custom becomes rule. The idea that a VP could come in and do this without a massive response is pie-in-the-sky. The pushback would come from Democrats as well as Republicans, protecting Senate privilege and custom from interference from the Executive.

Second, it ignores the elephant in the room, cloture. Even if Harris could do this, it still takes 60 votes to stop debate, and Republicans not only have them, but such a strong-armed move would guarantee a complete shut down of the Senate, with no negotiation or compromise.

And third, it assumes today’s Republicans are capable of shame. The idea that bringing a vote to the floor would change their behavior is akin to assuming that putting a bow on a rabid pit bull will make it a poodle.

My son was–if possible–even more negative. His comment (edited slightly for profanities–he takes after his mother):

I agree with David. I would add (as I mentioned on the FB page of the guy who circulated this point a few weeks ago) that the ONLY thing the applicable clause of the Constitution says about VP and Senate is that the VP is the President of the Senate and gets NO vote unless the body is evenly divided…. hardly a textual position of strength to argue that the VP can come in and dictate who gets to preside and run the show.  

Also, the argument is somewhat internally contradictory — on the one hand, the Constitution grants her sweeping powers to override longstanding, informal rules, on the other hand, the VP’s “priority recognition”-power IS one of those informal rules. 

Of course, all the other practical/political/prudential reasons David noted are also at work.   

I think it’s a fantasy, particularly in a world where EVEN IF Dems retake the Senate by winning both Dem seats in Georgia, f***ers like Manchin and Feinstein stand ready to kill any attempt to even soften the Filibuster that would defang McConnell.   

Actually, his last sentence suggests his current mood, and may indicate a need for intervention–or at least, strong drink:

The country is doomed. The sooner we all move away, the more peace of mind we’ll have. 

It would be lovely if the Constitution or some other part of the legal system had a shortcut we could use to repair what is broken. It doesn’t. We have a lot of work ahead of us–and failure to do that work would doom the American experiment.
 

 

Federalism On Steroids?

There are many observations we might make about the newest Supreme Court Justice and the travesty of her elevation. Assuming Democratic reluctance to enlarge the Court in a tit-for-tat response to the last 12 years of GOP court packing, one of those observations concerns prospects for federalism and states’ rights.

As Elizabeth Warren noted in a speech opposing Barrett, the nominee carefully refused to answer numerous important questions. She wouldn’t say whether the Supreme Court ruling upholding the right to contraception was correct, or whether the government is entitled to criminalize a same-sex relationship. Despite the applause from Republicans about the size of her family (seven children!), she refused to opine that it’s wrong to separate children from their parents at the border. She called climate change “controversial.” She evaded  many other inquiries, including what should have been considered “softball” questions: whether it’s OK to intimidate voters at the polls, and whether a president has the right to postpone an election.

When she held up that blank notepad she’d brought to the hearing, it was evident that the pristine paper was her reminder to abstain from sharing anything resembling content.

it is likely that Barrett will join Trump’s other regressive Court picks, and rubber-stamp state laws that violate rights we have come to view as American, endorsing a radical federalism allowing the rights of individuals to be defined by the states in which they live.

I’ve previously posted about the demographic shifts we’ve seen and the effects those shifts have had on equal treatment and “one person, one vote.” I’ve previously recommended Bill Bishop’s book The Big Sort, and its analysis of what he called “voting with our feet.” The likelihood of a radical return to “states’ rights” is likely to super-charge that residential apartheid.

States like Indiana already struggle to retain young people–especially educated young people. Red states like ours will rush to take advantage of their new imperviousness to federal constitutional constraints. They won’t just outlaw abortion (and in some states, access to birth control), they’ll expand gun rights, restrict access to health care and eviscerate their already paltry social safety nets. The Court has already declined to interfere with a variety of vote suppression tactics that favor the GOP–everything from gerrymandering, to ballot counting, to poll hours and locations.

The GOP has never gotten over its original resentment over incorporation–the odd word for the doctrine that nationalized the Bill of Rights. That process was premised on the 14th Amendment principle that fundamental liberties protected by the Bill of Rights should be a “floor”–that a citizen in Alabama should enjoy the same basic rights as a citizen of New York. States are able to enlarge on those rights, but–at least until now–they have been forbidden to retract them.

The new approach to federalism–what one might call “federalism on steroids”–will upend that understanding of American citizenship. The extent of your rights will depend upon your state of residence. If the young people with whom I interact are any indication, that’s a situation that threatens to leave a number of red states with a dwindling and aging population.

America has already seen its population shift to urban areas. As the “creative class” (and those who want to employ them) described by Richard Florida increasingly cluster in vibrant municipalities, those urban locations become even more attractive.

Gay families aren’t going to locate in states that refuse to recognize their marriages or parental rights. Women aren’t going to choose locations that allow the government to dictate their most intimate decisions. Few families will want to live in states where gun owners are encouraged to bring firearms everywhere, including schools. (And don’t think this is hyperbole–here in Indiana, we have state representatives who work constantly to legislate that “freedom.’)

States offering universal healthcare (a la Massachusetts) will look awfully good to a lot of Americans.

I wonder: At what point do “states’ rights” and a commitment to expanded “local control” end up creating separate and not-so-equal  parts of what has been one country? At what point will fiscally healthy blue states decide to stop supporting “taker” red states?

When does federalism on steroids translate into secession?

 

Let’s Talk About Originalism

Today, the Senate is scheduled to elevate Amy Coney Barrett–a rigid ideologue who has never tried a case– to the Supreme Court. During the fiasco that has substituted for her vetting, we’ve heard a lot about “originalism.”

A while back, a reader of this blog reminded me of Thomas Jefferson’s opinion on originalism, contained in a letter he wrote to Samuel Kercheval on July 12, 1816.  Jefferson wrote

“I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors.”

The philosophy of “originalism” was popularized by Antonin Scalia, who tended to employ his version of it when he disapproved of those “changes in manners and opinions” and ignore it in the many cases where it was clearly unworkable.

As I have previously explained, there is a version of originalism that does work, that does keep the constitution from being simply what nine people in black robes say it is.

In that version of originalism, courts are required to protect the values and principles that the founders were clearly trying to protect. James Madison could never have anticipated new methods of communication–radio, movies, television, the internet–but he had very clear ideas about protecting expression against government censorship. He, Jefferson and several other Founders also clearly expressed their beliefs in the importance of separating government from religion. Courts today must honor the Founders’ devotion to those and other principles embedded in and protected by the Bill of Rights.

Fidelity to those principles is the only workable and intellectually honest form of originalism, and as Edwin Chereminsky recently pointed out in an editorial for the New York Times, it is definitely not the originalism of Amy Coney Barrett.

Chereminsky is a prominent legal scholar, and Dean of Berkeley’s law school, and he points to the numerous problems with Barrett’s purported “public” originalism–the notion that the constitution must be interpreted to mean what the public thought it meant when it was ratified.

In fact, under the original public meaning of the Constitution, it would be unconstitutional to elect a woman as president or vice president until the Constitution is amended. Article II refers to them with the pronoun “he,” and there is no doubt that original understanding was that only men could hold these offices.

Throughout American history, the Supreme Court has rejected originalism and protected countless rights that cannot possibly be justified under that theory. For example, the court has interpreted the word “liberty” in the Constitution to protect the right to marry, to procreate, to custody of one’s children, to keep the family together, to control the upbringing of one’s children, to purchase and use contraceptives, to obtain an abortion, to engage in private adult consensual same-sex sexual activity, and to refuse medical treatment.

The Dean points out that rejection of Barrett’s understanding of originalism is anything but new. He quotes the 19th century Chief Justice, John Marshall, who wrote that “we must never forget that it is a Constitution we are expounding,” a Constitution “meant to be adapted and endure for ages to come.” Furthermore,

It is a myth to say that an “original public understanding” can be identified for most constitutional provisions because so many people were involved in drafting and ratifying them. In teaching constitutional law, I point to the many instances where James Madison and Alexander Hamilton disagreed about such fundamental questions as whether the president possesses any inherent powers.

Chereminsky makes a point I also make to my classes: how can “original public meaning” guide today’s courts in deciding whether the police can take DNA from a suspect to see if it matches evidence in unsolved crimes, or obtain stored cellular phone location information without a warrant?

The “public originalism” invented by Scalia and embraced by Barrett is an ahistorical cover intended to obscure and justify the judicial activism they profess to deplore–an intentionally dishonest construct allowing judges to favor the privileged and protect the status quo.

Placing Barrett on the Supreme Court dishonors both the Court and the Senators who vote to confirm her.