Tag Archives: Constitution

#203: Electoral College End Run

This is mark Joseph “young” blog entry #203, on the subject of Electoral College End Run.

A bad idea which we mentioned in passing some years ago is apparently gaining ground, thanks in large part to Hillary Clinton’s failed 2016 Presidential bid.

The idea, which we mentioned in Why We Have an Electoral College (in the page Coalition Government), is to nullify the original Constitutional intent, that the President be selected by the States as States, by having states pass a law assigning their electors to vote for whichever candidate wins the majority of the national popular vote.  Even some Democrats recognize that the current popularity of this idea is because the losing party are sore losers, and the fact that Hillary Clinton has added her voice to the chorus only underscores that sense–but as the map provided by the idea’s promoters shows, in green, eleven states have already passed the necessary legislation.

(In fairness to Hillary, sort of, she spoke out for the elimination of the Electoral College the last time the Democrats lost the Presidency in a close race.)

That legislation is designed to prevent states from being obligated until there is what they consider a consensus, that is, the legislation passed by each state specifically states that it becomes effective when, and only when, similar legislation is passed by states representing enough Electoral College votes to constitute a majority of the College, 270 votes, that is, one half of the 538 electors plus one.  At that point, whoever receives the majority of the national popular vote would, by dint of this legislation, receive at least two-hundred seventy votes and win the election.

There is a flaw in the reasoning.  Let us suppose that the total is not reached by 2020, and thus it does not impact the 2020 election; but it might be reached in 2021.  However, 2020 is a census year, and the primary reason the Constitution mandates that we have a census every ten years is to adjust the representation of each State in the House of Representatives.  Following the 2010 census New Jersey lost a seat, and there is every likelihood that some States will lose and others gain seats before 2024.  That matters because the number of electoral votes each state gets is determined by the sum of its Representatives plus its Senators, and it might well be that in 2021 the states having passed the law provide sufficient votes to cause it to be enacted, but by 2024 there would not be quite as many.  This might be unlikely, but it is not impossible–New Jersey, which has passed the law and has been shrinking proportionately, might lose another seat, and Texas and Florida, which have showed no interest in passing the law, have been growing and might gain another seat or two each.

However, that is not really the significant point here.

Some years ago a young liberal actress got in serious public relations trouble when she suggested carpet bombing all the conservative states in the central United States because they were impeding the progress that the liberals dominating the coastal states were pushing.  That is an extreme example, but the fact is that several of the big states are coastal states, and tend to be liberal–California, New York, Pennsylvania.  That means on some level we’re talking about the big states trying to take over.

California is an important example.  It tends to be liberal, but is short-changed in the Electoral College because it is short-changed in the House of Representatives:  there is a cap on the number of Representatives any state can have, and California’s population would give it quite a few more seats were it not for the cap.  Let’s face it, though:  California is a large piece of real estate with several very large population centers within it.  It could plausibly dictate law and policy for the entire country just by flexing its popular vote.

That, though, is exactly why the Constitution is designed the way it is.  When the big kids tell the little kids what to do, we call it bullying, and we look for ways to punish and control it.  The Electoral College is designed to try to keep the big states from bullying the little states.

The proposed law disenfranchises the little states.  In doing so it disenfranchises the voters in those states.  There is good reason for the states to vote for the President chosen by the majority of their own citizens, and not the majority of the citizens of every other State in the Union.

We would ask our New Jersey legislators, and those of the ten other states which have already passed such legislation, to repeal it.  It is bad law.  It is also, as one author already cited has observed, probably unconstitutional–it is an effort to end run the Constitutionally-mandated process.

If not, voters in New Jersey and elsewhere should prepare to file suit against the legislature.  The law disenfranchises the voters of this state, taking from us our constitutional right to choose the candidate of our own choice, not that of the rest of the country.

#200: Confederates

This is mark Joseph “young” blog entry #200, on the subject of Confederates.

General Robert E. Lee–perhaps the most recognized name on the Confederate side of the American Civil War–never owned a slave.  He did marry into the Custis family, descendents of Martha Washington and heirs of the estates of George Washington, some of which had slaves, but he was not an owner.

I mention this because there is a great deal of misunderstanding about the Civil War and about the Confederacy in particular.  To hear the scuttlebutt, all Confederates were bigoted racists and all northerners enlightened equalitarians.  Neither of those claims is true, nor is it true that the war was about slavery–slavery was a bit more than incidental, but ultimately a side issue.  Yet today people are fighting over flags and statues that were part of that history, trying to remove them and in the process erase an important part of our history that is relevant today to matters that have nothing to do with race or bigotry.

Between the ratification of the United States Constitution and the initiation of the Civil War there was a lingering unanswered question concerning the exact nature of this “more perfect union” the document was intended to create.  To citizens in every State, the State was a State–New Jersey had the same status as Denmark, Pennsylvania as France–and these individual independent countries had joined a treaty organization, something like NATO or the United Nations or the European Economic Community.  We came to each other’s aid for the common defense, agreed not to place tarriffs against imports and exports between each other, and met together to create laws on which we generally agreed that would bind all of us and were necessary to promote trade and interaction between us.

Yet lingering in the background of all this was what we might call the Federalist question.  Federalists like James Madison saw the central government as having ultimate authority over the state governments, that whatever was stated as Federal law was binding on all the member states.  Democrats like Thomas Jefferson saw the individual states as the ultimate authorities, lending their authority to the Federal government for the better functioning of the whole.  The Constitution did not decide that issue; had it done so, it would not have been ratified.

Abraham Lincoln, a Republican, believed in the Federalist vision of a united nation, a single country governed from a central authority.  He also happened to believe that slavery was wrong, but it was an incidental which he strongly downplayed during the campaign, promising that he would seek no law regarding slavery during his first term of office.  The majorities in northern states wanted the country more united.  The north was becoming highly industrial, building transportation networks, turning into a tightly knit unit in which business was done between Boston and Chicago more easily than ever before, and a unified legal system was to the benefit of such a system.  The south was still an agrarian society, separated by muddy roads and driven economically by the field production of cotton and other cash crops.  To northerners, Massachusetts was becoming a piece in a larger puzzle of tight-knit countries more and more connected to each other.  To southerners, Alabama was an independent country that signed a mutual defense and trade treaty with a bunch of other distant countries.

The fear southerners had of Lincoln was not really that he would end slavery–he had little chance and no intention of doing that any time soon.  It was that he would move the union more toward the central government model preferred by the north and strip the powers of the individual member countries in the process.  We see the same kinds of conflicts in Europe as they begin to adopt unified currency and banking regulations.  So when this icon of unification was elected, states that wanted to maintain autonomy seceded, and the remaining states decided that was not something they could do under the terms of the treaty, leading to a war to decide whether the Federal Government or the State Government had ultimate authority.

Of course, the elephant in the room was the one difference that had been a conflict between north and south for generations, that the southern economy was built on a slavery model and many northerners found this immoral–not that they believed blacks were any more human than the southerners believed, but that they were more on the order of animal rights activists trying to protect an exploited creature.  Because of the ongoing balance of slave and free states in the Senate, there was no real chance of meaningful legislation on that subject–but a tightening of the concept of Federalism would mean that unified laws would gradually come into being, and that was a threat.

So the question over which we fought the Civil War for five long bloody years was whether a member State of these United States had the authority to ignore Federal Law if it wished to enforce its own policies instead.  Then it was an entirely theoretical matter, as there were no Federal laws to enforce against the rebelling states, but the answer to the question turned out to be no, once you are a member of this union you are bound by Federal law, which trumps State law when they conflict.

So what the Confederates were defending, although they could not have known it, was the right of California to ignore Federal Immigration Law; and the right of Colorado to ignore Federal Drug Law.  The answer we were given then is no, Federal Law is enforceable within the member States, and the States cannot contradict it with their own laws.

So it seems to me that at least some people who are calling for the removal of Confederate markers and Confederate history actually favor that for which those Confederate soldiers fought and died–the right of states to pass laws and enforce policies contrary to those of the Federal government.

It had nothing, really, to do with slavery or bigotry.  It had to do with questions we are still facing today.  Instead of tearing down reminders of history for wrong reasons and ignorance of their significance, let’s try to gain from them the lessons of the past for the future.

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#196: A Church and State Playground

This is mark Joseph “young” blog entry #196, on the subject of A Church and State Playground.

Back in the winter we noted, in web log post #158:  Show Me Religious Freedom, that the United States Supreme Court was going to decide a case concerning whether a church-affiliated school could be denied participation in a public welfare program simply because it was sponsored by a religious institution.  That decision has been reached, in Trinity Lutheran Church of Columbia, Inc. v. Carol S. Comer, Director, Missouri Department of Natural Resources, 582 U.S. ___ (2017), and the majority opinion is very like what we previously suggested, but there are three concurring opinions that quibble on the details and one dissent that is scathing, fairly well reasoned, and as long as the other four opinions combined.

Chief Justice Roberts delivered the opinion of the court, joined in full by Justices Kennedy, Alito, and Kagan; Justices Thomas and Gorsuch also joined the opinion, with the exclusion of “footnote 3”, and each of them filed a concurring opinion, and joined in supporting each other’s concurring opinion.  Justice Breyer filed an opinion concurring in the judgement.  It is Justice Sotamayer who wrote the lengthy dissent, in which Justice Ginsburg joined.

To recount briefly, Missouri runs a program which provides funding to resurface playgrounds with recycled tires.  There is a tax on new tire purchases which funds the collection and recycling of discarded tires, converting these into a “pour-in-place” durable soft surface which reduces injuries on playgrounds.  The application process for determining eligibility to receive such a “grant” examines many factors including the economic circumstances of the area, the public use of the playground, and more.  On a list of forty-four applicants, the school ranked fifth, but did not receive one of the fourteen grants because it was affiliated with a religious institution, and the department had a policy of refusing to provide money to any religiously-affiliated institution, consistent with the Missouri State Constitution Article I, Section 7, which we quoted in the previous article.  This led to a court battle over whether the State, by refusing to permit a religiously-affiliated school from participating in a program that provided aid for non-religious programs, had violated the Free Exercise Clause of the First Amendment, by making eligibility for a public assistance program dependent on renouncing a religious belief or association.

All five opinions discuss the balance between the Free Exercise Clause, that the government cannot interfere with someone’s beliefs, and the Establishment Clause, that the government cannot support one set of beliefs over another.  Neither clause is exactly absolute.  For example, it is agreed that the Establishment Clause does not mean that the publicly-funded fire department can’t put out a burning church or synagogue, or that the police won’t investigate a theft of church property.  The Free Exercise Clause has also been tested, and laws have been overturned which prevented ordained ministers from serving in elected public office, on the grounds that such laws forced a person to choose between his religious beliefs expressed in his vocation and his right as a citizen to run for office.

A lot of the discussion on both sides concerned the previous case Locke v. Davey, 540 U. S. 712 (2004).  In Locke, the State of Washington ran a post-secondary education scholarship program based on outstanding scholastic achievement, but with a specific clause stating that the scholarship money could not be used for ministerial training.  The student claimed that the program was a violation of the Free Exercise Clause, but the Court held that under the Establishent Clause the State could refuse to fund ministerial training, particularly given that the program did not exclude schools which offered such courses or the courses themselves, only a degree program of that nature.  They have always maintained that there was some space between the two clauses, in which States were not compelled by either to act in a particular way; the question was whether in this case the state was forced to act one way or the other, or was free to act as it chose.

The majority felt that this case was more like McDaniel v. Paty, 435 U. S. 618 (1978), in which ordained ministers were barred from seeking election to public office, and the Court held that this amounted to denying a citizen a fundamental right available to all citizens (running for public office) based solely on religious belief.  The playground was not part of a religious training program, but a part of ordinary educational aid made available broadly to the community, and the church had been excluded from the program solely because it was a church, having a religious purpose in its existence.  The denial of the right to participate in the program was a violation of the Free Exercise Clause, because it required the church to choose between abandoning its religious faith and participating in a common government welfare program designed for the protection of children.  A significant part of the decision can summarized in the Court’s words

…denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest “of the highest order.”

Under such “strict scrutiny” the policy failed.

To some degree, the concurring opinions have to do with footnote 3, which reads

This case involves express discrimination based on religious identity with respect to playground resurfacing.  We do not address religious uses of funding or other forms of discrimination.

Justice Thomas expressed the view that Locke failed to apply strict scrutiny to the facts in that case, and ought to be overturned–but that that was not a question before the court at this time.  However, he thought footnote 3 too limiting, and deferred to Justice Gorsuch’ concurring opinion for that.

Justice Gorsuch says that the Court makes an indefensible distinction between religious status and religious use, and so distinguishes Locke from the present case.  He makes the point thus, comparing the two cases:

Is it a religious group that built the playground?  Or did a group build the playground so it might be used to advance a religious mission?….was it a student who wanted a vocational degree in religion?  or was it a religious student who wanted the necessary education for his chosen vocation?

The only justification for the decision in Locke, in Gorsuch’ view, is the “long tradition against the use of public funds for training of the clergy”.  As to footnote 3, he feared it would be misconstrued as saying that the principles on which this decision was based do not apply outside very narrow fact sets, which he thought was incorrect.

Justice Breyer put the emphasis on the fact that the program involved was intended “to secure or to improve the health and safety of children” and was in that sense not different from other public welfare programs such as police and fire protection.  He did not want to extend the decision too far, but thought in this case it was a clear violation of the Free Exercise Clause, and that for programs akin to this the fact that the applicant was a religious school should not exclude it.

Interestingly, none of these opinions declared that the Missouri Constitution’s Article I section 7 was unconstitutional; the majority opinion merely stated that as interpreted by the Missouri Supreme Court it ran afoul of the Free Exercise Clause, and so would have to be understood differently in the future.

Justice Sotamayer’s dissent is long, involved, and pointed.

Her most cogent point is that the church identifies the school as part of its ministry, intended to build the foundations of Christian faith in its students, whether children of church members or others from the community.  We have established that States can refuse to pay scholarships for ministerial training.  It is reasonable to conclude that the State can refuse to pay for Bibles, Korans, Torahs, as well as vestments, chalices, sacramental elements.  Arguably the doors, windows, roofs, and walls of church buildings are part of the ministry.  We would not use government money to pay for such acoutrements, because they are in a sense part of the ministry.

Yet it is clear that this is not so.

In the wake of Hurricane Sandy, it was established the Federal Flood Insurance and Disaster Relief could be used to rebuild damaged churches, as long as it was distributed even-handedly–that is, not favoring any particular religion.  So government money can be used for repairing physical plant of religious buildings.

Further, the National School Lunch Act provides discounted and free lunches to students in private and parochial schools without regard for the religious nature of the school, because lunch is neutral and it would be discriminatory against the religious choices of these families to exclude them from an otherwise neutral benefit because they are attending a religious private school.

So on the one hand we ask ourselves whether the playground is part of the ministry of the church, and in a sense it is, but in the same sense that the lunchroom is part of the ministry of the church.  Indeed, from the perspective of the Christian faith, every congregant is an extension of the ministry of the church, and yet we know that people cannot be excluded from government assistance programs simply because they are members of a faith which regards all of its members as ministers.  The government cannot avoid giving money to church ministries, as the church understands them, because whenever money is given to people who belong to the church, it is aiding the ministry of the church.

And on the other hand, we ask ourselves to what degree the support of the playground is supporting the religious mission of the church.  In many states it is a requirement that schools include a physical education program, and although Trinity’s school is essentially preschool the playground may be necessary to their certification–that is, if all schools must have some kind of playground for physical activity, then the playground is clearly meeting a secular, a non-religious, requirement.  Stating that it is a part of the ministry of the church certainly calls the matter into question, but seen in perspective, the answer should be obvious, that state money given to religious institutions for secular purposes such as meals and playgrounds are not a violation of the Establishment Clause, and might well be required, as the majority observes, under the Free Exercise clause.

None of this touches the deeper problem, that the language in the Missouri State Constitution is Blaine Amendment language, which as we observed was inserted for essentially religious (anti-Catholic) purposes.  However, since no party addressed this, that issue remains for the future.

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#190: Praise for a Ginsberg Equal Protection Opinion

This is mark Joseph “young” blog entry #190, on the subject of Praise for a Ginsberg Equal Protection Opinion.

To read the conservative press, you would think that Justice Ruth Bader Ginsberg, in writing the majority opinion in Sessions v. Morales-Santana 582 U.S. ____ (2017), had turned her back on women’s rights and struck a blow for men.  Yet even from that reporting I could see that Ginsberg was simply staying true to her principles of equal protection (we had discussed her commitment to this previously in web log post #63:  Equal Protection When Boy Meets Girl).  Still, from the sound of it, I thought she ought to be commended for this consistency even when it seemed to go against her more feminist views.

However, unwilling to write about a court opinion I had not read, I took the time to find it and read it (link above to the official PDF), and found that it was a considerably less impressive story even than I had supposed.

I should perhaps have been tipped off by the fact that the decision was effectively unanimous–seven of nine Justices joining in the majority opinion, Justice Thomas writing a concurring opinion in which he agreed with the result but thought the equal protection language went further than necessary to reach it, and the new Justice Gorsuch not having heard oral arguments not participating in the decision.  The court did not consider it controversial.  They did, however, overturn part of the decision of the Second Circuit Federal Court of Appeals, so apparently there was a difficult issue in the matter.

It is also of some interest to us because although couched as an immigration case it ultimately proves to be a citizenship case, and we have addressed the statutes and cases involved in whether or not someone is a natural born citizen in connection with The Birther Issue when it was raised concerning President Obama, and more recently in web log post #41:  Ted Cruz and the Birther Issue.  The terms under which someone is, or is not, born an American citizen are sometimes confusing.  That was what was at issue here.

Morales-Santana was arrested in New York on a number of relatively minor charges, and the Immigration and Naturalization Service decided to deport him to the Dominican Republic, claiming that he was not a United States citizen.  That was where the story started to get interesting.  It seems that the Respondent’s father, José Morales, was an American citizen, having been born in Puerto Rico, and having lived there for almost nineteen years.  Twenty days before his nineteenth birthday he moved to the Dominican Republic to accept a job offer, and soon moved in with a native Dominican woman.  She gave birth to the Respondent, and the father immediately acknowledged paternity and shortly thereafter married the woman, making the child a member of his household.  Everyone assumed the child was an American citizen like his father.

However, the statute defining whether an unwed U.S. citizen father confers citizenship on his out-of-wedlock child specified, among other things, that the father had to have lived in the United States or its Territories or Possessions (Puerto Rico qualifies) for at least five years after reaching the age of fourteen.  José Morales, having left Puerto Rico less than a month before his nineteenth birthday, fell short of that requirement by twenty days.  Therefore he himself was a citizen, but his child, born abroad out of wedlock to a non-citizen mother, was not.

Morales-Santana, however, recognized a flaw in the law.  Had the situation been reversed–had his mother been an American citizen who bore a child out of wedlock with a non-citizen father–the statute only required that such a mother have been in residence for one year following her fourteenth birthday.  That meant, Morales-Santana argued, that women were being given a right that was being denied to men, in violation of the Equal Protection rights as understood by the United States Supreme Court.

The Second Circuit Court agreed, and decided that the citizenship conferred on children of unwed mothers ought equally to be conferred on those of unwed fathers, and stated that Morales-Santana could not be deported because he was, in fact, a United States citizen.

The government appealed, resulting in this decision.

What Ginsberg tells us is that the anomaly in the statute is the exception for unwed mothers.  The five year rule applies in all other related cases–not only unwed fathers, but married couples in which either spouse is an American citizen and the other is not.  If the Court were to rule that the unwed mother status applied equally to unwed fathers, it would have to rule that the same status applied in all these cases–but the legislature clearly intended that the five year rule would be the norm, and the one year rule a special exception for pregnant unmarried girls.  They would essentially be discarding the entire statute in favor of the exception.  Instead, they ruled that the one year exception was unconstitutional–a ruling whose only effect on the Respondent was that he could not claim citizenship through his father based on the inequity of a rule covering mothers but not fathers.

So Ginsberg certainly did strip some women of a statutory right, but she deserves to be credited for doing so consistently with her express view of equal protection.  Asserting that men and women should be treated the same does mean that sometimes women will be treated worse than they otherwise might have been.  This is one of those cases; it otherwise is not that important.

As a footnote, the court notes at one point that the statute asserts that a child born out of wedlock whose father acknowledges him and takes responsibility for his care will be regarded a citizen from the moment of his birth.  That is relevant to our discussion of what it means to be a natural-born citizen.

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#172: Why Not Democracy?

This is mark Joseph “young” blog entry #172, on the subject of Why Not Democracy?.

As I was writing the previous web log entry, #171:  The President (of the Seventh Day Baptist Convention), I was reminded that we, in the United States of America, do not live in a democracy.  We live in a representative republic.

That fact was brought home to a lot of people in the recent Presidential election, some of whom are still reeling from it.  I have heard many complaints, mostly from young people, that our elected President did not win the majority of the voters, and therefore does not represent the majority of the people.  (It is at least worth mentioning that the actual vote totals will never be certain:  the vote count was never completed in quite a few voting districts because the total would not have changed the Electoral College outcome in those states.)  We should, they insist, change to a more democratic system, in which every vote counts the same.

We could do that.  Things are a bit more like that in other countries, particularly Israel where everyone votes for whatever parliamentary representatives they want and the entire country is treated as a single district.  Even England’s system is more democratic than ours.  However, note that in these countries the voters do not vote for their chief executive–they vote for their legislative representatives, and these in turn choose the chief executive.  Sure, British Prime Minister Theresa May campaigns for the position, but she does so by touring the country telling voters to support their local Conservative Party candidates for Members of Parliament, who in turn vote her into the Downing Street office.  It is still not strictly democratic, although by taking the vote for head of government away from the people and giving it to their elected representatives it actually becomes a bit closer to it.  However, it still can produce the outcome that the party in power, and thus the chief executive, did not actually have the majority of the votes.  It is a flaw of representative government, but representative government is the only way to avoid having every citizen in the country vote on every law.

The electoral map of the 1824 Presidential election, in which Andrew Jackson took the clear plurality of both the popular and the electoral vote but not the majority of either, throwing the decision to the House of Representatives, who selected John Quincy Adams to serve.
The electoral map of the 1824 Presidential election, in which Andrew Jackson took the clear plurality of both the popular and the electoral vote but not the majority of either, throwing the decision to the House of Representatives, who selected John Quincy Adams to serve.

There are, of course, other ways to achieve a more democratic election of the President of the United States.  People have been complaining about it since at least the 1824 election, when the failure of Andrew Jackson to gain fifty percent in the Electoral College resulted in John Quincy Adams, with less than a third of the vote, being selected for the office by the House of Representatives (the only time in history where no candidate obtained fifty percent of the Electoral College vote).  Some years ago when we were examining the Electoral College in detail in connection with Coalition Government, we noted one suggestion, that each state allocate its electoral votes based on the percentage of voters supporting each candidate–and why that would never be enacted.  More recently, someone proposed that states begin changing their system for apportioning electoral votes such that the votes within the state were irrelevant, that each state would give all its electoral votes to whomever won the popular vote nationally.  That would achieve the desired “democratic” outcome.  It would prevent situations like that of the recent election.  The question is, do we want that?

The first point that should be recognized here is that the majority always wants the democratic system.  That’s because in a democratic system, the majority can always impose its will on the minority.

Of course, that often happens anyway–but many great strides forward in these United States have happened precisely because minorities were empowered.  Certainly it is sometimes the case that majorities become entrenched, resisting necessary change until overwhelmed as public opinion shifts, but it has also been the case that minorities have used the system to gain a voice within the process.  There is something called the tyranny of the majority, when minority voices and positions are overwhelmed and trampled by majority opinions.  Our system was designed in part to prevent that.  There is also a tyranny of the minority, when a small group prevents the majority from doing what it deems right through legal intervention, and our system is supposed to prevent that, as well.  Our system produces gradual change by trying to keep everyone somewhat satisfied.  Younger people are less patient, wanting rapid change.  Older people have usually learned that not all change is for the better, but all change has unintended consequences.  Our country advances a bit, then eases back, then advances again, feeling the path carefully.

Meeting of the Electoral College in Ohio, 2012.
Meeting of the Electoral College in Ohio, 2012.

Many other countries have suffered from what we might call “rapid cycling”.  Because they are so controlled by the majority, and because the majority is mostly in the middle shifting a bit to one side and then to the other but the politicians tend to be at the extremes, it is common for one party to be voted into office, make major changes to everything, upset the bulk of their constituents who only wanted things to change a little and don’t like the unanticipated parts, and so be voted out of office and replaced by an opposing party which proceeds to repeal everything the first party did and pass its own extremist programs, leading to its failure at the polls and the return of the original party, or often yet another party, whose agenda then dominates.  Remember, as we have often mentioned in connection with coalition government, we are not in our chosen parties because everyone in those parties agrees with us on every point; we are there because we have agreed to support each other on those points each of us think important.  That means some of the things you want your party to do other members of your party strongly oppose–the Progressive wing of the Democratic Party wants open borders, but the Labor wing definitely does not; the universal healthcare driven through by the Democratic Progressives has gone very badly for labor unions, whose members lost much of their superior healthcare benefits under the program.  Majority opinion is more fickle than a twelve-year-old girl’s crushes.  Democracy leads to such rapid changes.  People think they want one thing, but when they start to see where that leads, they change their minds and want something else.

Our system does not always give us stability.  In recent years the fracturing of political opinion has led to some very unstable situations.  However, rapid change is always unstable, and we have seen much rapid change over those years.  The system is working to slow the change, to keep things at a pace people can accept.

A more democratic system would not be a better one.

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#158: Show Me Religious Freedom

This is mark Joseph “young” blog entry #158, on the subject of Show Me Religious Freedom.

It appears that Missouri has become a battleground for issues of church-state relations.  During the election we noted in web log post #126:  Equity and Religion that there was a ballot issue related to a cigarette tax to fund childhood education which included controversial language permitting such funds to go to programs sponsored by religious institutions or groups.  The measure was soundly defeated, incidently (59% to 40%), but whether that was due to opposition to the almost unnoticed clause about funding religious groups or to the near one thousand percent increase in the cigarette tax can’t be known.  The state is back in the news on the religion subject, as a lawsuit between the state and a church school is going to be heard by the United States Supreme Court this year.

The case is Trinity Lutheran Church of Columbia, Inc. v. Pauley, and SCOTUSblog nicely summarizes the issue as

Whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.

But perhaps that will make more sense if we put some detail to it.

img0158Tires

Missouri runs a program that collects used tires and recycles them into playground surfacing material, providing schools and other facilities with a durable but softer play surface.  The program is funded by a surcharge on new tires–technically tax money dedicated to the purpose of handling scrap tires.  Trinity Lutheran Church runs a school which has a playground used by the students but also by neighborhood children.  They applied to the program to resurface that playground with the safer materials, but were refused on the grounds of a church-state issue.

Some would argue that the “separation of church and state” is on the state’s side in this, but that is not in the Constitution.  The Establishment Clause means only that the government cannot show favoritism between various religious and non-religious organizations; it can’t promote any specific religion, nor can it oppose any specific religion.  It will be argued as to whether providing playground surfacing materials to a church-run school might be promoting that church, but that is not all that is at stake.  Missouri is one of thirty-eight states which have what is known as a “Blaine Amendment”, after Maine Senator James G. Blaine who in 1875 proposed an amendment to the United States Constitution along these lines.  The Constitutional amendment proposal failed, but the majority of states adapted the concept to a variety of state constitutional amendments which were adopted and are still the law in those states.

The mindset of the nineteenth century was so very different from ours today that it is difficult to grasp.  If ever the United States was a “Christian nation” (I do not believe such an entity ever has or even can exist), it was so then.  Protestant denominations were separated from each other in friendly competition, and often worked together in evangelistic outreach; we had come through two “Great Awakenings” from which the vast majority of Americans, and particularly those who were neither Jewish nor recent immigrants (such as the Chinese in California), were Christians in Protestant churches.  However, those new immigrants–particularly the Irish and the Italians–were predominantly Roman Catholic, and Protestants still feared Catholicism, and not entirely unreasonably.  The fear arose because in countries dominated by Catholicism governments were perceived as following the dictates of the church–a fear which remained in this country until then Presidential candidate John Fitzgerald Kennedy made his September 1960 speech on the subject.  As a result, Blaine was the tip of an iceberg of an effort to prevent Catholicism from conquering America through the democratic process, perceived as in effect making the Pope our de facto emperor.  (We see similar efforts today reacting to the fear that Islamic immigrants will conquer by democratic process and impose Sharia Law on America.)

The word used was “sectarian”, and we might find that word inappropriate for its meaning.  After all, even at the dawn of the 1960s public school classes were opened with prayer and a reading from the Bible.  However, these were Protestant prayers, prayers that would have been embraced by every denomination from Episcopalian to Lutheran to Presbyterian to Baptist to Pentecostal.  They were thus viewed as non-sectarian, not preferring any one Christian denomination over any other.  Up until Pope John XXIII, Catholicism regarded all Protestants as condemned heretics (and it was more recently than that that the church has reached the position that there might be salvation outside the Roman Catholic and Eastern Orthodox churches).  That was seen as the divisive position; the Protestant’s rejection of that was not seen as divisive, because Protestants were otherwise united and respected each other’s beliefs, at least in this country.

Blaine’s effort was attempting to prevent state money from going to Catholic education (“sectarian schools”).  Missouri’s version is considerably more strict.  It reads:

That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.

Arguably, read strictly this would prevent underpaid teachers in private religious schools from receiving food stamps or Aid to Families with Dependent Children, or prevent unemployed ordained ministers from getting welfare or social security.  No one has made that argument to this point; such programs were then not even imagined.

So this is what the First Amendment actually says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The sense is that the government will not interfere with the opinions of the people, or the expression thereof.  In a sense, the government has to be “opinion blind”–it can’t decline to give food stamps to a member of the Libertarian Party, or refuse to hire someone who previously worked for a Catholic charity, or decide whether someone can speak at a public meeting based on whether he was once Boy Scout or Mason or Gideon.

It would also seem to mean that the government cannot decide that an organization cannot receive public funds for a strictly secular purpose based on whether it is a religious organization.

Let us for the moment take the name out of this case.  Let us suppose that the plaintiff is the Columbia Community School.  It happens to be run by the Columbia Community Fellowship, but is incorporated separately as an educational institution.  Thus the application for materials from the program says that the applicant is “Columbia Community School”.  The question suddenly becomes whether the people who make the decision have the right to ask whether “Columbia Community School” is a religious organization–which under our hypothetical it is, but you would not know that from the name on the application.  Would it be a violation of the first amendment for the government to inquire whether the school is a religious organization?  Two points should by raised.  One is that it is established that the playground is used by children in the neighborhood who have no connection to the school; the other is that many public and private schools rent or even lend their facilities to groups for meetings some of which use these facilities for religious worship services–a use which the courts have agreed is legitimate, and indeed that it would be unconsitutional to forbid such use solely on the basis that publicly owned properties are being used by private individuals for religious purposes on the same terms that they are being used by other organizations for other purposes.  It thus seems that it would be illegal to ask the question, and the only reason the issue exists here is that we assume an organization with the words “Trinity”, “Lutheran”, and “Church” in the name is a religious organization.  While that seems a safe assumption, it is as prejudicial as assuming that someone with the given name “Ebony” or “Tyrone” must be black.

Let us also consider this aspect of the separation of the organization from the purpose.  Brigham Young University is clearly connected to the Church of Jesus Christ of Latter Day Saints (The Mormons).  It also receives government grants for scientific research.  Should the fact that the school was founded by a religious organization for religious purposes disqualify it from receiving such monies?  If so, should the same rule apply to schools like Princeton, Harvard, Yale, and Notre Dame?  Patently it is legitimate use of government money to support academic research in secular fields, even if performed by religious persons at religious institutions.

It appears that the only sane conclusion here is that the government cannot discriminate against religious persons or institutions in the disbursement of aid for secular purposes.  We might argue that there is a fungible resources issue, that the money the church does not have to spend on playground resurfacing is money they can use for religious purposes, but ultimately the only use that this paving material has is to create safer play surfaces for children, and the only way the church can get that material is through the government program, so denying it would be making “a law respecting an establishment of religion”, clearly forbidden by the Bill of Rights.

The Blaine Amendment, at least in the form it has in Missouri, is unconstitutional.

We’ll see whether the Supreme Court agrees with that later this year.

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#156: A New Slant on Offensive Trademarks

This is mark Joseph “young” blog entry #156, on the subject of A New Slant on Offensive Trademarks.

Anyone following the Redskins trademark dispute will be interested to know that the United States Supreme Court has agreed to hear a case that is going to impact that–not the Redskins case itself, but a case close enough in its content that a Virginia federal appeals court has put the Redskins case on hold pending the outcome of the present case.

The case, Lee v. Tam, involves an American rock band whose members are all Asian, who want to trademark their band’s name, The Slants.  The U. S. Patent and Trademark Office refused to register the name on the grounds that it was disparaging of Asian Americans.  However, the Federal Appeals Court for the Federal Circuit overturned that decision, stating that it was an unconstitutional impingement on free speech, concluding that the provision under trademark law forbidding such protection of any trademark which “[c]onsists of…matter which may disparage…persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” is unconstitutional on its face.

The Patent and Trademark Office has appealed, and the Obama Justice Department has supported that appeal.

The Slants performing at the 2016 Saboten Con at the Sheraton Grand Phoenix in Phoenix, Arizona, photo by Gage Skidmore.
The Slants performing at the 2016 Saboten Con at the Sheraton Grand Phoenix in Phoenix, Arizona, photo by Gage Skidmore.

Simon Shiao Tam, founder of the band, argues that they took the name as a way of embracing their Asian heritage, and that it neither offends those Asian Americans who are their fans nor is intended to do so.  He also points out that “slants”, while popularly used as a racial slur, has other non-racial meanings (unlike “Redskins”, “Nigger“, and similar epithets).  Still, the question isn’t whether the word can be used in an inoffensive manner, but whether the government can deny a trademark on the grounds that some might take it to be offensive.

One of the arguments raised by the government is that the State of Texas won a decision that they did not have to permit a personalized license plate design which included the Confederate Flag.  There, however, the argument was that since the plate is an official government document issuing such plates would be as if the government were endorsing the use of that flag.  It is, perhaps, a weak argument–the government cannot legally be endorsing all the organizations which apply for such plate designs, many of whom have political or religious connections–but it is weaker applied to trademarks, as the Office has repeatedly asserted that the issuance of a trademark does not indicate endorsement of what it represents.

Against the government, enforcement of the rule has been uneven.  Numerous trademarks have been issued that include racial epithets or other offensive language.  If the government wins, many of those might have to be rescinded, and might end up in litigation.

Against The Slants, there is at least some reason for enforcement of a rule against offensive trademarks.  A broad decision here could open the door to a wealth of product names far more offensive to far more groups.  A narrow decision would probably have to take the line that whether the trademark is offensive must be determined in the context of whether the audience would perceive it so.  The slogan “Bring your bitch here” is probably not offensive if it is used by a groomer or veterinary clinic, but would be so at the entrance to a bar.  However, the harder case would be whether accommodations near the Westminster Kennel Club dog show could use that slogan to let breeders and trainers know that their animals are welcome in the rooms or dining areas.  Yet the court might here find that context matters and still rule against The Slants, since the question would be whether “slants” is an offensive Asian epithet and they are an all-Asian band.

Ultimately, though, as Ray Bradbury reminded us half a century ago, everything worth writing is offensive to someone.  Any effort to censor free expression in trademarks is doomed to failure, because the issue of what is and is not offensive is too subjective to legislate.

I am inclined to think that people who register and use offensive trademarks in order to be offensive will alienate potential customers and pay an economic penalty for it.  That should be a sufficient disincentive to the practice.  Otherwise, our high courts will spend a tremendous amount of time reviewing lawsuits over whether individual trademark applications are or are not too offensive under whatever standard is adopted.

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#126: Equity and Religion

This is mark Joseph “young” blog entry #126, on the subject of Equity and Religion.

I saw an article online, from the St. Louis Post-Dispatch, entitled Amendment 3:  A Stealth Attack on Religious Freedom  The title intrigued me, since I had no notion of what was happening in Missouri, so I skimmed the piece–and was rather surprised at what I found.  It struck me that the author did not have a very good grasp on exactly what “religious liberty” is, so I decided to pursue the matter here.

img0126daycare

The purpose of “Amendment 3”, apparently Missouri’s version of what we in New Jersey now call a Public Question, is to create a cigarette tax and use the money to fund early childhood education.  The tobacco industry has not made a lot of noise about it, at least directly–they have learned that people who smoke are very unlikely to stop simply because the amount of money they burn increases.  It seems like a positive idea, that if people are going to kill themselves slowly at least they can help fund the education of our children.

At issue is text that says the disbursement of funds raised will not be limited or prohibited by the State of Missouri Constitution’s “Prohibition of public aid for religious purposes and institutions” clause.  That means that if whatever method of distributing the money to help with preschool education would otherwise mean that a Lutheran- or Baptist- or Muslim or Jewish-run facility would qualify for some of that money, that facility is not automatically disqualified simply because it is administered by a church, mosque, synagogue, or other religious organization.  Opponents of the measure say that this is an attempt to bring funding of religious organizations in through a side door, and so force people to pay for religious education with public money.

It is not at all clear that that is what this is, and in fact from the description it sounds rather as if it is an attempt, not to show religious preference, but in fact precisely not to show it.  It is saying that the fact that a group of people trying to provide early childhood education happen to be believers of a particular religious philosophy will not disqualify them from being funded by this program–exactly what freedom of religion means, that we will not discriminate against you on the basis of what you believe.  As long as the program is administered impartially, part of that impartiality has to be that a program is not disqualified based on religious connections.

That is important for multiple reasons.

Social programs and particularly education have always been spearheaded in the Anglo-Saxon world by Christians and Christian organizations.  Our Ivy League colleges and many other schools and universities were originally founded by Christians to educate doctors, lawyers, and ministers.  Christians were the first to attempt to help the poor in England through education of their children.  In America, many settlers would arrive in a new location and build a church and a school as the fundamental institutions of society.  Meanwhile, the Jews have long put a heavy emphasis on educating their children, going back more than centuries, possibly millennia–a Hebrew boy became a man by proving he could read from the Torah, at least as early as the first century.  Religious people have been proponents of education, and education for all, even when the approved thinking was that education was for the privileged and powerful, to maintain their power and privilege.

Encouraging a group to do what we want them to do and they want to do anyway is good politics.

Besides, if the objectors are saying that it is a violation of the principle of freedom of religion to fund any organization that promotes a religious position, they’re going to have to stop funding public education as well.  St. Louis is a particularly interesting case, as it is the home of the headquarters of the Missouri Synod Lutheran Church–not the most conservative Lutheran group, but conservative enough that they honestly believe in a six-day creation.  You might disagree; I don’t know that I agree.  However, whenever the State of Missouri uses its collected tax money to teach the scientific views about the Big Bang Theory and the Theory of Evolution, it is spending money to promote a religious idea–the idea that the Missouri Synod Lutheran belief in six-day creation is wrong.  Our objectors say that they do not want their tax money spent to fund organizations that will promote religious notions with which they disagree; now they know how their Lutheran neighbors feel.

The only way to treat religious people and their organizations fairly is to make the question of religious belief irrelevant to the question of funding social efforts.  Otherwise, it would be the same as saying that the government will not fund a day care run by a black man, or a preschool run by a woman.  Not discriminating on the basis of religion means that religious views are not a factor in the decision.  That’s what the amendment is saying.

How those programs are going to work has not yet been determined.  The simple way, though, is for the government to provide scholarships or tuition reimbursement for needy families trying to send their children to whatever preschools are available.  Some have argued that this kind of “voucher” system unconstitutionally funds religious schools because the parents can give the money to those schools and the government winds up paying the church, as it were.  However, to do otherwise unconstitutionally discriminates against religious groups, requiring that parents send their children only to schools which reject religious views entirely–itself a religious view–or forego the government assistance they cannot afford to be without.

It would be akin to refusing to provide food stamps to any family that says grace before meals.

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#63: Equal Protection When Boy Meets Girl

This is mark Joseph “young” blog entry #63, on the subject of Equal Protection When Boy Meets Girl.

United States Supreme Court Justice Ruth Bader Ginsburg does not like the Roe v. Wade decision.

To many, that will sound like nonsense.  Ginsburg is the anchor of abortion rights on the United States Supreme Court, and Roe the seminal case which recognized, some would say created, such a right.  Yet Ginsburg does not disagree that there is such a right; she disagrees regarding the basis of that right, and thus with the reasoning of Roe which is its foundation.

Roe v. Wade is in essence a Right to Privacy case.  Beginning with Griswold v. Connecticutt, in which the court found that the state could not criminalize the act of teaching couples how to use contraceptives in the privacy of their own bedroom, the court inferred that the First Amendment protections of freedom of expression, Fourth Amendment protections against unreasonable search and seizure, and Fifth Amendment protection against self-incrimination, implied a right to keep one’s personal matters private.  There were several intervening cases which extended that, and there have been others arising since Roe, but in Roe the argument was that the decision to have an abortion was a medical decision between a woman and her doctor, and as such was a private matter in which the government should not interfere without a very compelling interest.

Ginsburg disagrees.  That argument, she claims, makes a private and personal decision a matter to be discussed with a doctor–a paternalistic oversight that according to Ginsburg violates the fundamental right at stake.  She claims that a woman’s decision should be autonomous, something she decides without involving anyone she does not wish to involve.  She makes it an Equal Protection right, covered largely by the fifth through tenth amendments.  Her assertion is that a woman should have the autonomous right to decide whether to bear a child, unimpeded by any considerations including medical ones, because it is solely the woman’s problem.

Ginberg’s reasoning presents serious challenges for those who oppose abortion.  If her line were adopted, current efforts to regulate abortion providers and facilities would be unconstitutional.  As the decision stands, if abortion is a privacy right as a medical decision on the advice of a medical professional, it is completely reasonable for reasonable regulations of the medical profession to restrict access to abortions based on the government’s regulation of health care.  If it is an autonomous right under equal protection, then a woman in theory should be able to have a doctor or anyone she chooses perform one in the privacy of her own bedroom without any government involvement at all.  Yet Ginsburg’s position suffers from some other problems.  She believes she is defending the concept that a woman should be treated exactly as a man would be in the same circumstance, but (apart from the fact that men would not be in exactly the same circumstance) the treatment of men in this circumstance is already worse than the treatment of women, viewed from the perspective of individual autonomy and equal protection.

Ruth Bader Ginsburg official United States Supreme Court portrait.
Ruth Bader Ginsburg official United States Supreme Court portrait.

Let’s look at the situation:  boy meets girl.  We’ll call our girl Ruth, for Justice Ginsburg, and we’ll name the boy Tony, in memorium of the recent passing of her good friend, colleague, and adversary Justice Antonin Scalia.

Ruth and Tony meet, maybe at work, maybe at a party, maybe at school or in the neighborhood.  They like each other, and start seeing each other.  They find themselves attracted to each other.  Human physiology being designed to promote reproduction, at some point they have desires to have sex.  At this point they are just about equal, as far as reproductive rights are concerned.  Some argue that Tony is disadvantaged in that his drives are stronger than Ruth’s, but there aren’t many ways to test that.  Ruth might have more resistance to those drives because the consequences are more direct for her, but in essence it is within the power of each them them to choose, autonomously, not to engage in sex.  It is also within their power to choose, jointly, to risk a pregnancy.

Yes, Tony could rape Ruth; Tony could coerce Ruth by some other inducement.  Women are raped fairly often, usually by men, sometimes by women.  Men are also raped, by men and sometimes by women, but considerably less often–although more often than reported.  Men are more embarrassed about being raped than women are, and so less likely to report it; and they are taken less seriously when they do, partly because some people think a man can’t really be raped by a woman, and partly because men who have never been raped by a woman somehow think they would enjoy it.  Rape, though, is a separate issue:  anyone who has been raped has had rights fundamentally violated, quite apart from the problem of potential pregnancy.

If Ruth and Tony agree to engage in sex, suddenly the entire picture changes:  they no longer have equal reproductive rights.  A significant part of that is simply technological.  Either of them could have an operation rendering him or her permanently infertile, which is generally a drastic step few want to take and is a considerably more expensive and difficult (but ultimately more reliable) procedure for Ruth than for Tony.  Barring that, though, Tony is limited to the question of whether or not to use a condom–a prophylactic device with a rather high failure rate.  Ruth’s equivalent, a diaphram, is a bit more difficult to get (must be fitted by a gynecologist) but considerably more effective; she also has several other options.  Usually she would use spermicide (sometimes known as “foam”) with a diaphram, but she can also use hormone treatments, usually in pill form but sometimes as implants, that disrupt her ovulation cycle.  All of these options have varying probabilities of preventing conception; there are other options.  Intra-uterine devices (IUDs) usually reduce the chance of conception but also prevent or sometimes disrupt implantation, causing a spontaneous abortion–what in popular jargon is called a “miscarriage”, but at so early a stage that pregnancy was not suspected.  In all these ways, all the reproductive rights are on Ruth’s side:  if she chooses not to become pregnant, she has an arsenal of ways to prevent it.

However, young lovers are often careless.  Birth control is so unromantic, so non-spontaneous.  The young suffer from the illusion of invulnerability, that they are the heroes of their own stories and everything is going to work according to their expectations.  People have sex and don’t get pregnant; some couples try for unsuccessful years to have a baby.  A pregnancy is often a surprise, even for those who want it.  People take the risk, and Ruth and Tony might lose.  So now there is a baby on the way, as they say, and again Ruth’s reproductive rights are more than equal to Tony’s.  She can choose to carry the child to term, or to have an abortion.  He has no say in the matter, even if he is her husband.  She might include him in the decision, but it is her decision; she does not even need to inform him that there is a decision.  She can end the story right here.  He cannot.  He has no say about his own reproductive rights.  He cannot say, “I do not want to be the father of a child; terminate it.”  Nor can he say, “I want this baby, keep it.”  He does not, in that regard, have equal protection.

Maybe he does not care; maybe he figures it is her problem.  However, it is not just her problem–it is also his problem.  The inequities are not yet quite done.  If Ruth decides not to have an abortion–exercising her reproductive rights and overriding his–the child is born.  At that moment Ruth has yet another choice:  she can keep the child, committing herself to the difficulties and expenses of raising it, or she can absolve herself of all further responsibility, agreeing never to see the child again, by putting it up for adoption.  I do not want to minimize the agony of that choice, but it is her choice–it is not his choice, and he has no say in the matter.  His reproductive rights are not equally protected.

In most cases, if she chooses to surrender the child for adoption, he has no say in the matter; he cannot say it is his child and he wants to keep it.  That, though, is only half the problem.  If she decides that she wants to keep the child, she can sue him for child support–and indeed, if Ruth is poor enough that she files for public assistance from the state, most states will find Tony and force him to make child support payments, and jail him if he fails to do so.  It is his responsibility to support the child if she says it is.  He can claim that it is not his child–the tests can be expensive, but there is an avenue to avoid false claims–but we already agreed that it is his, so he is going to have to support it.  She had a choice; he has none.

So by all means, let’s think of abortion as an Equal Protection issue.  Men are not protected in this nearly as well as women.  A lot of things would have to change to get there.

In addition to web log posts with the Abortion, Discrimination, and Health Care tags, see also the articles Why Shouldn’t You Have Sex If You Aren’t Married?, and Was John Brown a Hero or a Villain?

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#60: Federalism and Elected Senators

This is mark Joseph “young” blog entry #60, on the subject of Federalism and Elected Senators.

The Utah House of Representatives has passed a measure and sent it to the Utah State Senate, calling on the United States legislatures to begin the process of repealing the 17th amendment to the United States Constitution.

This is a bit ironic, I suppose.  Although there are several states which never ratified that century-old amendment, Utah is the only state which voted against ratification.  On the other hand, the amendment itself came into existence through a process very like this:  state legislatures around the country passed motions asking the federal legislatures to introduce this constitutional amendment.  It took the better part of a century for it to be accepted, and now one state that tried to reject it then wants to reject it now.

They are not entirely alone, though.  The repeal of the seventeenth amendment is one of the ideas supported by the Tea Party; and since it is apparently growing in favor, we should understand what it is, what it changed, and why we passed it originally.

Utah State Capitol Building
Utah State Capitol Building

All Americans are familiar with the phrase “checks and balances”.  It is why we have three “co-equal” branches of government.  Jefferson would have been happy with a single legislative house as the sole branch of government, on his belief that rational men would always do the right thing given opportunity to discuss it among themselves.  Between the representatives themselves and the existence of “reason” as a nearly divine entity guiding man, they had their checks and balances inherent in their interactions.  (We think that naive, but it was the view of many intellectuals of the time.)  Our independently-elected executive (parliamentary governments have the legislature select the executive) is charged with performing that which the legislature directs, but has one chance to veto any law he finds objectionable, subject to the ability of the legislature to override that if they’re really serious (two-thirds majority vote in both houses).  Our judiciary can originate nothing, but can veto anything if it is brought to them in a legitimate case.  These powers prevent any individual or to some degree any faction from dominating government.

One of those balances rarely mentioned is our “bicameral legislature”–that there is a House of Representatives and a separate Senate.  The membership of the House is based on the population of the states, each state divided into districts with proportional population such that voters across the nation are roughly equally represented there in a process that brings the representation almost to your neighborhood.  The Senate, by contrast, is comprised by exactly two Senators from each state.  Representatives serve two-year terms, and are constantly seeking to be returned to office; Senators serve six-year stretches, each state appointing one or the other every three years.  As originally designed, Senators were selected by the state legislatures, not by the voters.

To understand that, you have to get back into the mindset of the late late eigthteenth century.  Having come out of a “War of Independence” also known as the “American Revolutionary War”, thirteen former colonies were now independent of Great Britain.  Each was now called a “state”–but the word “state” then did not have the meaning we understand.  France was a “state”; Russia was a “state”.  The word meant “country” or “nation”  At that point we regarded ourselves as thirteen independent countries, each with its own government.  I would have been regarded a citizen of New Jersey.  This, though, was still the Age of Imperialism–not only England but France, Spain, Portugal, Russia, and Austria held sway over colonies around the world.  “Czar” was the Russian spelling of “Caesar”, and Austria was the home of the Holy Roman Emperor.  Little countries did not stay independent long in that world.  So the colonies created a treaty alliance, something akin to NATO, to provide for the mutual defense.  They also agreed, in principle, to something like free trade with each other, similar the European Economic Community.  However, it was evident that under the original Articles of Confederation it was not working as envisioned:  states would impose tarriffs on goods imported from or exported to other states, crossing state (read:  international) lines was sometimes complicated, and laws enforced in one state would be different in another.  It led to a Constitutional Convention, intended officially to revise the Articles of Confederation to address a few trade issues, and resulting in the composition of The Constitution of the United States of America.

The Constitution is very much a Federalist document.  At that time, the Federalists wanted to reduce the power of individual states and fuse them into a single nation, converting the “confederation” into a “federation”.  The Democrats, though, were opposed to this.  They wanted as little government as possible, as close to the individual as possible.  A federal government that could exercise authority over thirteen countries was too much like an empire, and its emperoror, even if called “President”, was inherently too powerful as a concept.  Those thirteen countries that were going to be united under this treaty called a Constitution were going to have to be protected from that central imperial power.  The states themselves as such needed to be represented at the federal level.  This was achieved by three provisions.

The first is that the election of Representatives was to be done on a state-by-state basis, that is, district by district within individual states.  This may seem obvious, but it isn’t, really.  If we had a perfectly equal voter-to-representative ratio, small states like Delaware would not have their own representative but would be represented by someone whose district overlapped with adjacent states.  Israel’s Knesset does not divide the country into districts but lets everyone vote for any one candidate, and the one hundred twenty candidates with the most votes nationwide are elected.  Our Constitution provides that each state is apportioned Representatives based on state population, to be elected directly by the eligible voters in geographical districts of roughly equal population–but the state government gets to define those districts, as long as they comply with that requirement.  So the state, as a state, has some influence over those elections, and is represented through those Representatives which represent its people.

The second provision which gave the states representation at the federal level is the Electoral College.  Technically, the voters do not elect the President of the United States.  The voters elect individual Electors who represent their individual states in electing the President.  As we have noted, the individual state governments get to decide how that is done–two states proportion their electors based on the proportion of voters supporting each candidate, the remaining states having winner-take-all elections.  Thus in a very real sense the State of New Jersey casts its fourteen votes for President of the United States, and the State of Delaware casts its three votes; the voters in these states vote not for the President but for who they want their state to support.

However, the biggest provision creating representation of the states as states in the federal government was the fact that Senators were appointed by state legislatures, not directly by the voters.  They did not run state-wide campaigns, but sought the approval of their political colleagues; and they were not beholden to voters or donors but to those legislators, who could exercise some direct influence over how those Senators would vote.  Senators were, in a sense, ambassadors to the United Nations, when those united nations were thirteen former British colonies forming a federated union.  It meant that the two houses of Congress were different in kind, one representing the people, the other representing the states, and thus that they would have different interests.

The seventeenth amendment changed that.  Our first two questions are why and how, and after that we have to wonder why Utah and the Tea Party want to change it back.

The how is simple enough.  The seventeenth amendment to the United States Constitution took the senatorial appointment power away from the state legislatures and gave it to the voters directly.  Each Senator is now chosen by the majority of all the voters in his home state, and so, in theory, each represents the interests of all of them.  There is also a provision stating that in the event of a vacancy, the legislature can empower the governor to appoint an interim Senator and schedule a special election (as we saw here in New Jersey a couple years back when Senator Lautenberg died).  The legislature no longer has the power to appoint or approve the appointment of Senators.

Two reasons for the change were advanced at the time.  One was the potential for political corruption.  It was asserted that it was possible for a wealthy individual to bribe enough state legislators in essence to purchase a seat in the Senate.  It was alleged that this had happened, maybe two or three times.  It had not been a severe problem, but it was viewed as a potential problem.  It was also an occasional problem that gridlock in a state legislature caused a Senate seat to remain unfilled for extended periods–sometimes several years–which of course meant that those states were not adequately represented in Congress.

Ultimately, though, the driving force seemed to be a push toward centralized government, to reduce the power of the state legislatures in favor of a stronger connection between the federal legislators and the voters.  In theory it is supposed to make the federal government more directly responsive to the people.  It makes state government less relevant at the national level.

That was one of the key arguments against it then, and one of the key arguments against it now; but now that we have had a century of the new system, a new objection has been raised.  It is asserted that the Senators, now elected by the populace instead of selected by the legislatures, no longer represent the interests of the people at all, but rather represent the interests of big money.  In most states it is very costly to run a Senate campaign; if the salary was the only benefit, the return on investment would be minimal.  Candidates are very dependent on financing, and financing, particularly in the larger states, is very dependent on business, or banking, or unions, or other large financiers.  Thus while you are your Senators’ constituent in name, in practice he is far more indebted to, and far more interested in pleasing, those who give the big contributions which support his campaign every half dozen years.  He owes you nothing–and his long six-year term means he is well insulated against any effort you might make to replace him.

That is what Utah asserts:  our Senators are not responsive to the states the way they were originally intended to be, and they are not responsible to the people who elect them as the change was supposed to induce, but only to the wealthy special interest groups who finance them.  It might have been a good idea to take the power from the state legislators and give it directly to the voters, but the effect has been to give the power to the people with the money.  Better to give it back to the state governments where the founders intended than to leave it where it is.

So that’s the argument.  Now the question is, should we go back to the original way?

Here in New Jersey it is difficult to imagine the state as a unified entity.  We are viewed by outsiders as predominantly “blue”, that is, Democratic, and our state legislature is dominated by Democrats and both of our Senators are Democrats–but we have a Republican Governor at the moment, and our Representatives in the House break evenly between the parties.  The northeast is dominated by urban industrial and business interests, the south is largely rural and still strongly agricultural, the northwest mountainous bordering on wilderness.  Philadelphia (Pennsylvania) sports teams are the home teams in almost half the state, New York (New York) teams in the other half, and those out-of-state cities also provide our local television, radio, and to some degree newspaper coverage.  Public Television offers a New Jersey Network, but it is not much watched, New York and Philadelphia Public Television dominating their respective markets.  There are perennial calls for the southern part of the state to secede from the more populus north, thwarted in part by the problem that both halves want Atlantic City and want the other to take Trenton.  The notion that my state legislature could pick Senators who represent this state seems ludicrous.

Nor is New Jersey the only state with this kind of problem.  Predominantly rural and wilderness upstate New York often complains that the populous metropolitan area of its namesake city dominates politics and government, and talks of dividing into two states.  Nor is this a new idea.  West Virginia was once part of Virginia.  One calculation suggests that if every state secessionist movement had been successful, there would now be between two and three times as many states.  Our states are not more unified than our nation, really; it only seems so to those outside because they only see the results of the elections, and only for the top offices.

And the question of how well our state legislatures represent our state populations is similarly suspect.  We hear much about redistricting when it applies to the House of Representatives, but it also applies to our state legislatures, in which one way or another the sitting legislators periodically decide how to divide the voting districts which select them, with all the gerrymandering that often involves to create districts that will keep the party in power in power.  Repealing the seventeenth amendment will not put the power in the hands of the people.  It is not supposed to, of course; it is supposed to put the power in the hands of the state government, so the states themselves will be represented at the federal level.  Yet if we have trouble with state governments adequately representing their own constituents, that will be compounded by letting the party which wins a slim majority in the state legislature decide who will represent them in the federal one.

It might have the positive effect of making voters interested in state government elections.  There is a tendency for voter turnout to be highest when there is a Presidential election, relatively high when there is a Senator on the ballot, and progressively lower for a Congressional election, state government election, and local election.  Yet if it became the case that our choice of New Jersey State Assemblyman became our vote for United States Senator from New Jersey, it might well become the case that New Jersey voters would be more interested in who those were and for what they stood.  Injecting national politics into state politics might be a boost for the state system.

On the other hand, in some states giving the choice of Senator to the state legislature would be de facto giving it to the party committee of the political party that controls the state.  We have only sections of that in New Jersey, where there are still “party bosses” who choose candidates and put them in office because they control the party that always wins the district.  The old system is subject to a new form of corruption, giving more power to the party in power and making it more difficult for the voters to wrest that power from it.

So Utah is right to the degree that there is a problem, a corruption in the present system; but the solution does not seem to be returning to the old system.  It is difficult, though, to envision a new system that would work.  We might have the Governor of each state select one of the Senators and the legislature the other; or have one elected by popular vote and the other the legislature, or perhaps have a two-stage election in which the voters in essence nominate several candidates and then the legislature selects one.  Some way of choosing Senators might be devised which at least reduces their dependence on big money without making them too beholden to party interests.  That way is not the repeal of the seventeenth amendment but its replacement with a better idea not yet envisioned.

Quite a few articles on the site are at least peripherally related to issues in this web log post, among them particularly Coalition Government which includes explanations of the Electoral College system, Polarization on why the country is so divided, Re-election Incongruity on why everyone claims that Congress should be recalled but incumbents are consistently re-elected, and Election Law, which includes discussions of redistricting issues.

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