Tag Archives: Constitution

Elections, Law and Politics

#251: Voter Unregistration Law

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This is mark Joseph “young” blog entry #251, on the subject of Voter Unregistration Law.

As I was reading the majority opinion of Husted, Ohio Secretary of State v. A. Philip Randolph Institute et al., 584 U. S. ____ (2018), I wondered how anything so obvious could possibly have been a controversial five-to-four decision along ideological lines.

Then I read the dissent, and realized that this was not a simple case, and it is not a mystery why it kept flip-flopping its way up the ladder to the Supreme Court.  Ultimately, though, it comes down to whether when we read the statute we read it as and or or.

Here’s the background.  Prior to 1993–which for some of you seems like ancient history, but is really not that long ago–state governments had a lot of ways of removing voters from the registration lists so that they couldn’t vote.  One of the most egregious was that if you missed an election one year the system concluded that you had either moved or died, and removed your name from the lists with the result that if you arrived the next year you would discover that you weren’t registered and couldn’t vote.  To remedy this, the Clinton administration passed the National Voter Registration Act (NVRA), which both required states to maintain current voter registration lists (which included removing ineligible voters) and limited how they could remove persons from the list.  It was tweaked a bit in 2002 when Bush (the second Bush) signed the Help America Vote Act (HAVA), which attempted to clarify some of the statements in the previous law.  Ohio has a system which it maintains is consistent with the requirements of those laws, by which it removes persons from the voter lists based on a multi-step process.  The majority agrees; the dissent disagrees.

It will help significantly to look at the statutes themselves, large portions of which Justice Breyer appends to his dissenting opinion.

The focus of discussion begins with §8(b) of the NVRA

Any State program or activity to protect the integrity of the electoral process by ensuring the maintenance of an accurate and current voter registration roll for elections for Federal office—

(2)

shall not result in the removal of the name of any person from the official list of voters registered to vote in an election for Federal office by reason of the person’s failure to vote.

The HAVA modifies that to say solely by reason of the person’s failure to vote, probably because of confusion with §8(d).  That section lays out a somewhat complicated process for verifying that a voter has moved out of the voting district in which he is registered.  The simple way is for the registrant to confirm in writing that he has moved.  The law recognizes that a lot of people won’t do that, and so provides an alternate method involving sending (by forwardable mail) a postpaid return card which permits the recipient to respond confirming that he still lives at the stated address or that he does not.  If the card is returned, the registrar of voters accepts the statement as true and the matter is resolved.  If the card is not returned and the voter does not vote in the next two federal elections he may be removed from the list.  (Federal elections occur every other year because terms for The House of Representatives are two-year terms.)

At issue is under what circumstances such a card can be sent.  §8(c) specifies that if the state obtains change of address information from the Post Office, it must verify that information by following the procedure just outlined.  However, §6(d) specifies that the same confirmation process should be used if voter registration materials are sent to a registrant by non-forwardable mail and are returned as undeliverable.  It thus appears that there is more than one way by which the registrar of voters might have reason to believe that a voter has left the voting district, triggering the §8(d) process.

Here is where it gets tricky.

Ohio’s system works like this.  If a registered voter fails to vote for two consecutive years, or to engage in any other voter-related activity such as signing petitions, a forwardable post-paid return card is sent to that voter’s registered address.  If the card is returned, that’s the end of the matter.  If the the card is not returned, Ohio gives four additional years (covering at least two Federal elections at least one of which is a Senate race and one a Presidential race) to vote or engage in other voter activity, after which the non-voting voter is removed from the voter registration list.

The majority says that this is a reasonable method, perfectly in keeping with §8(d).  The failure to vote alerts the registrar of voters that this person might not live here anymore, and because the person fails to respond to the return card confirming their presence and at least two additional Federal elections pass in which they do not vote, they can be removed.  The majority takes the language in §8(b)(2) to put an end to the practice of removing voters solely for failure to vote by requiring the confirmation process of §8(d).  They note that some states send such cards regularly or randomly to confirm addresses, and Ohio’s system complies with their understanding of the §8(d) process.

The dissent says that such cards are for confirmation of information gained by some other means, such as from the Post Office (§8(c)) or through a different mailing verification process (§6(d)).  They assert that the point of §8(b)(2), that no one should be removed soley for failure to vote, means that failure to vote cannot be the trigger to send the returnable card.  They claim that the §8(d) confirmation process must be triggered by something other than failure to vote.

Perhaps the strongest point in favor of the dissent’s position is that one of the stated purposes of these two laws is to increase voter registration and prevent eligible voters from being removed from the list inappropriately.  The fact that someone doesn’t vote for a couple years does not mean they are no longer in residence in the district, and the fact that they fail to return a postpaid card confirming that they are present is not a particularly telling confirmation of anything.  As the dissent argues, the majority of people probably won’t bother returning such a card.

The majority points to the statute on that, noting that both the Federal legislature and the State of Ohio believed that the non-return of such a card would be an adequate indicator that the person has moved.  The argument is that a person who does not vote and does not return the card is not being removed “solely” for failing to vote, but for failing to vote over the course of six years and failing to return a confirmation card.  The question is whether the state can send the confirmation card based on two years of failure to vote, or whether that constitutes removing them “solely” for failing to vote.

In favor of the majority, though, if §8(b)(2) means what the dissent claims it means, it is poorly worded.  The majority reading is not at all awkward or implausible, and the Ohio system appears to fit the §8(d) requirements with room to spare.  Despite the ranting of the minority, the majority opinion does seem the more natural reading of the text.

The upshot is that the Ohio system stands, and many other states with similar systems will not be challenged.  Removal from the voter rolls solely for failure to vote is not permitted, but it can be the trigger that leads to an inquiry by mail as to whether the voter still lives in the district.

Law and Politics

#247: The Homosexual Wedding Cake Case

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This is mark Joseph “young” blog entry #247, on the subject of The Homosexual Wedding Cake Case.

The case, as decided by the United States Supreme Court, is MASTERPIECE CAKESHOP, LTD., ET AL. v. COLORADO CIVIL RIGHTS COMMISSION ET AL., 584 U. S. ____ (2018), and it is one which I, at least, have eagerly anticipated.  It is the case in which the baker was convicted of violating the civil rights of a gay couple by refusing to design a wedding cake for them, on the grounds that it was an artistic expression which violated his rights of freedom of speech and religion.  It had been expected to help find the point at which religious objections to homosexuality would or would not stand against legal rights of homosexuals, although it does not seem to have done so.

The media has called this a “narrow” decision, and many have asked how it can be “narrow” if it is a 7-2 vote.  The narrowness is entirely in what was decided.  Virtually nothing concerning the balance between religious freedom and homosexual rights is solved by this case, which in its majority opinion decided only that the Colorado Civil Rights Commission seriously violated the protected religious freedom of the baker, Jack Phillips, and so its ruling could not stand.  It observed that in Colorado in the year these events occurred such a refusal was reasonably understood to be legal, although it might not be so now (because Colorado had not legitimized homosexual marriage at that time and has since done so).  However, the case is a slap in the face of progressivist atheists who want to force the opinions of religious conservatives out of the political and commercial arenas.

Justice Kennedy delivered the opinion of the court, joined by Chief Justice Roberts and Justices Breyer, Alito, Kagan, and Gorsuch–six votes for the majority opinion.  Justice Thomas filed an opinion concurring in part and concurring in the judgment, which gives seven votes for overturning the Colorado decision, and Justice Ginsberg dissented, joined by Justice Sotomayer–but the splintering went beyond that, as Justice Kagan wrote a concurring opinion in which Justice Breyer joined, and Justice Gorsuch wrote a concurring opinion in which Justice Alito joined, so we have five written opinions on the matter, and a very small sliver of agreement on the issues.

Justice Kennedy begins by clarifying that in all matters in which religious liberty is at issue, the State is required to be a neutral arbiter showing a respectful attitude for the expressed religious beliefs of the parties involved.  It is certainly possible that a businessman might be compelled to provide services to which he objects, provided that the law is religiously neutral and does not directly attack his beliefs.  The problem in the Masterpiece case is that far from neutrality there was evident animosity toward religion.  In the first hearing, one of the commissioners said that Phillips can believe “what he wants to believe” but cannot act on those beliefs “if he decides to do business in the state.”  The same commissioner restated that view moments later, according to the record, saying “[I]f a businessman wants to do business in the state and he’s got an issue with the—the law’s impacting his personal belief system, he needs to look at being able to compromise.”  At the next hearing, a different commissioner was recorded saying

I would also like to reiterate what we said in the hearing or the last meeting.  Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be–I mean, we–we can list hundreds of situations where freedom of religion has been used to justify discrimination.  And to me it is one of the most despicable pieces of rhetoric that people can use to–to use their religion to hurt others.

Kennedy noted that this twice disparages the baker’s religious beliefs, first by calling them “despicable”, and again by claiming they are mere rhetoric having no substance or sincerity.  None of the other commissioners present objected to these statements, and they were never repudiated in the record that included appeals courts in Colorado and an appeal to the Supreme Court.

Yet if we think this is just rhetoric, that somehow the expression of such hostility toward the baker’s religious views did not indicate judicial bias against him, Kennedy goes beyond this to observe that the same commission during the same period of time considered three other cases in which bakers who declined to make cakes for specific groups were cleared of any wrongdoing based on their claim that it would have compelled them to make statements they regarded offensive.  In all three cases, the bakers had been asked to make cakes expressing anti-homosexual views, and refused to do so.  The commission in those cases concluded that the bakers could not be compelled to express opinions they considered offensive.  In this case, however, the commission claimed that the opinion expressed on the cake would be attributed to the purchasers of the cake, not the baker, and so his speech was not protected.  Further, in the other cases the commission said that the fact that these bakers were willing to sell other products to the customers absolved them of the charge of refusing to do business with those customers, but in this case they said that Phillips’ willingness to sell birthday cakes, cupcakes, cookies, even shower cakes, was irrelevant given his refusal to make a wedding cake for them.  The lower court, it was noted, dealt with this in a footnote, to the effect that the cakes requested in the other cases would have required expressing offensive statements, but the one in this case did not–which, as Kennedy notes, is passing judgment on the religious values of the baker by declaring that what he finds offensive is not offensive.

Thus the case that Phillips’ won is in essence that his religious views were mistreated by the judicial process, which should have accorded them greater respect–particularly as the commission for the protection of civil rights in this case is also charged with protecting the civil rights of religious groups.  The point is made that this case says nothing about how such cases might be decided in the future, but that the religious views and liberties of individuals involved must be respected and treated impartially by the government.

So, what about all those other opinions?

Justice Kagan makes the point that the decision is limited specifically because it is based on the express bias of the adjudicators.  She asserts that the commission could have treated the religion issue respectfully and impartially and still reached the same result, and that the other cases can be distinguished on the basis that the bakers would not have made cakes with those messages for any customer, but Masterpiece would have made wedding cakes for heterosexual customers.

It is a slim distinction, which Gorsuch rejects in his concurring opinion.  He first notes that when religious rights are threatened by legal action, strict scrutiny applies–the government has a heavy burden to prove complete neutrality in regard to religion in the case.  He is satisfied that the majority opinion reaches that result.  As to the cake, Gorsuch agrees with the baker in distinguishing a heterosexual wedding cake from a homosexual wedding cake, against Kagan’s view that a wedding cake is a wedding cake, and the distinction is prejudicial against the customer.  Yet Kagan asserts that requiring a baker to make an anti-homosexual cake with messages the baker finds offensive is something that baker would not do for anyone, and thus distinct–but in this case, she is making a distinction where in the other case she is generalizing.  That is, the baker is being asked to make a cake with a message written on it, and if the message is not an expression of the baker’s beliefs he cannot discriminate based on the message.  If a baker can say he will make a cake with the message, “Congratulations on your fiftieth wedding anniversary and enjoy your cruise” but he won’t make a cake with the message “Homosexual perverts will not possess God’s kingdom”, he is discriminating based on his own beliefs, making one message cake for one customer but not making another message cake for another customer.

Before Gorsuch explores this he notes that the commission changed its legal standards between the two kinds of cases.  In both cases, the persons most likely to purchase the type of cake in question were members of a protected class.  In the case in which the commission agreed with the bakers that the message was offensive, they said that there had to be a showing of actual animus toward the class for the charge to stand; in the case in which they disagreed with the baker’s views, they said that such animus could be presumed by the recognition of the effect on the protected class.

Justice Thomas agrees with the court in its assessment of the religious prejudice, but he asserts that the baker’s freedom of speech is also impinged in this case.  He notes that the Colorado Court of Appeals agreed that Phillips’ work was expressive, crafting individual wedding cakes for customers, meeting with the couple and working to express them in the artistic project that is their cake.  He demonstrates that a wedding cake itself is a communication that a marriage is occurring.  Ultimately, he holds that freedom of speech must allow persons to refuse to create anything that expresses endorsement of a view with which they disagree, even if it is a culturally favored view.

Justice Ginsburg disagrees.  She says that notwithstanding Phillips’ claims, most observers would not recognize a wedding cake as expressing a message, and certainly not a message from the baker.  She says that the evidence of bias is insufficient and there is no significant hostility toward religion here.  She then makes the same argument made by Kagan, that a wedding cake is a wedding cake, which as has been shown is flawed.

In conclusion, the case does rule that religious opinion, including specifically Christian opinion that homosexual marriage is immoral, is protected and should be treated with respect.  It does not rule that Christian bakers can en masse refuse to make cakes for homosexual weddings, but that if they do so any legal action taken against them must be adjudicated impartially and with respect for the religious views of the bakers.  Depending on the circumstances, the baker might still be compelled to make such a cake or punished for refusing to do so.

The conflict continues.

Elections, Law and Politics

#229: A Challenge to Winner-Take-All in the Electoral College

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This is mark Joseph “young” blog entry #229, on the subject of A Challenge to Winner-Take-All in the Electoral College.

We have frequently discussed the Electoral College, the system by which States send Electors to select a President of the United States.  Much of that explanation appears in the page Coalition Government, compiled of several previous related articles.  That discussion included the suggestion that the “winner-take-all” system for choosing Electors, adopted by forty-eight States and the District of Columbia, should be replaced, on a State-by-State basis, with a proportional system–and why such a change was unlikely to be made by any of them.  (We more recently noted an opposite movement, an attempt to replace the State vote with a national vote that effectively eliminates the significance of any state, in web log post #203:  Electoral College End Run, an idea having a much better chance of passing but which is probably unconstitutional.)

Now an organization called Equal Citizens has decided that there might be another way to eliminate the winner-take-all system and replace it with proportional representation:  have the winner-take-all system declared unconstitutional.  To this end, they have filed lawsuits against the practice in California, Massachusetts, Texas, and South Carolina.

That might seem like overkill.  After all, wouldn’t one successful lawsuit fix the problem?  However, it probably wouldn’t.

Suppose they filed in Texas and won in Texas.  There are four Federal District Courts in Texas, any one of which would do, and victory would mean it was illegal to assign all thirty-eight of that State’s electors to the candidate winning the majority vote–in Texas.  At that point they have to hope that the State appeals the decision to the Fifth Circuit Federal Court of Appeals, and that they win there.  If they do, it will be illegal not only in Texas but also in Louisiana and Mississippi.  However, it will still be legal in the rest of the country.

In order for it to become unconstitutional nationwide, the Supreme Court of the United States would have to decide the case.  That means getting the Court to hear the case, and as we know the Court is rarely forced to hear any case and might prefer to stay out of this one.  The best shot at getting Certiorari at the Supreme Court for a case like this is to get decisions in more than one Circuit which hold opposing positions.  That is, they need one court to say it is constitutional and another to say it’s unconstitutional, so that the Supreme Court will see that it is necessary for it to resolve the matter for everyone.  That means in filing four lawsuits they are hoping to win at least one and lose at least one, at the appellate level.

In theory, they could win an effective victory if they won all four suits, as States might see that as an indication that other circuits would agree and avoid a lawsuit by complying with the change.  However, compliance would only be mandated in those circuits where the decisions were made, and additional lawsuits might be needed to change some recalcitrant States.

So how can a practice that is so nearly universal (only Maine and Nebraska do not follow it, and they both use district voting, that is, the state is divided into sections each of which picks a representative elector) be unconstitutional?

The argument is based on the XIVth Amendment, and specifically the Equal Protection Clause, which states that every citizen of legal age is to be treated equally by the States in all matters of law and politics.  That means, according to the Amendment, one person, one vote.  The claim is made that in a winner-take-all system, if fifty thousand voters pick one candidate but fifty thousand one voters pick the other, fifty thousand voters are disenfranchised when the entire electoral vote goes to the other candidate.  In order for their votes to be protected, the electoral vote should be divided based on the proportion of voters supporting each candidate–in this case, equally, or slightly in favor of the majority candidate.

So is it a good argument?

Maybe.

The XIVth amendment is one of the Reconstruction amendments following the Civil War.  The “Original Intent” of its reference to one person, one vote was to prevent discrimination against black men specifically; it was amending the section of the Constitution that counted slaves as partial persons by giving the emancipated slaves voting power equal to their white counterparts.  In that sense, it has nothing to do with the method of selecting Electors for the College.  However, as often happens, what the Framers of the Amendment wrote has been applied beyond what they intended.  This clause is the basis for all those lawsuits over reapportionment:  the claim that one party has by drawing the district lines given itself an unfair advantage by disenfranchising voters in certain geographic areas.  The connection is obvious:  if white government officials can set up districts such that blacks are always in the minority in every district (that is, by identifying black neighborhoods and apportioning them into several predominantly white surrounding neighborhoods) they can smother the voice of black voters.  Thus “gerrymandering” to oppress racial voting blocks is a violation of the Equal Protection Clause.

Yet the Equal Protection Clause would itself be inequitable if it only protected blacks or other racial minorities.  If it is a constitutional violation to stifle the representation of any one voter, it is equally a violation to stifle the representation of any other voter.  Arguably winner-take-all voting does exactly that, and on that basis could be ruled unconstitutional.

On the other hand, as we have noted in previous articles, the Framers of the Constitution did not intend for Presidents to be chosen by democratic process.  Quite the contrary, they expected that the Electoral College would always be hopelessly deadlocked and so serve effectively as a nominating committee offering a slate of candidates from which the legislature would select the one they believed would best serve them.  As we noted in #172:  Why Not Democracy?, that has happened exactly once.  However, the process was intended to empower the States as States, not so much the individual voters save as they are citizens of their respective States.  If we look at the Original Intent of the Constitution, it is evident that Electors are to be chosen by the States, by methods determined individually by each State.

Of course, the XIVth Amendment changed that at least in part.  The question is, in doing so did it mean that a State’s Electors had to be representative of all the voters proportionately, or is it sufficient for a State’s Electors to represent the majority of the State’s voters?  Are Presidents to be selected by the people, or by the States?

If winner-take-all Elector voting is deemed unconstitutional on that basis, it probably means that district apportionment is similarly unconstitutional, and electoral votes would have to be assigned based entirely on the proportion of the total vote in the state.  Israel uses such a system to elect its Parliament, and it is not an unworkable system.  If implemented, it would move us slightly closer to a President elected by the majority.

It is certainly worth considering.

As a footnote, in researching this article I stumbled upon this interesting toy which permits the user to experiment with various methods of choosing Electors and see their impact on the most recent two Presidential elections.  What intrigued me was that of eight possible methods (including the current one), Trump won the Electoral College in all but that one specifically rigged to give the Democrats the most electoral votes (that is, by using winner-take-all in states they nominally won and proportional in states they nominally lost).  That caused me to wonder how that could be if, as is often claimed, Clinton took the majority of the popular vote.  The answer seems to be in part that despite the fact that Trump took more votes in California than in any other state but two, Clinton took enough votes in that state to tip the balance of the popular vote, but not of the Electoral vote, because California is underrepresented in the Electoral College (because it is underrepresented in the House of Representatives).  That in turn reminded me that in the aforementioned web log post I commented that we did not want California to be the big bully that dictates the law to the rest of us.  The other part of the answer is simply that Trump took more states, and because of the “plus two” Electors each state gets, the geography worked for him:  the fact that Presidents are on some level chosen by the States, not the people, meant that having more states choose Trump gives him more Electors.

Bible and Theology, Law and Politics, Logic and Reasoning

#221: Silence on the Lesbian Front

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This is mark Joseph “young” blog entry #221, on the subject of Silence on the Lesbian Front.

Sometimes what the Supreme Court does not say is as significant at what it does say.  There is much speculation as to why they declined to hear a suit against a Mississippi law protecting a first amendment right not to support same sex weddings and similar matters.  The lower court ruling at this point is that the plaintiffs do not have standing, that is, none of them can demonstrate that the law has caused any of them actual harm, but the question behind that is why the court didn’t want to grab the case and decide the issue.

One possibility is that no one knows how it would fall, and no one wants to risk setting a precedent against their own view.  The conservatives would undoubtedly support the law, which makes it unlawful to bring any criminal or civil penalties against someone who for religious reasons refuses to provide services in support of acts they consider immoral, and particularly homosexual weddings.  The passage of the law invalidated local laws in Jackson and other metropolitan areas of the state that had protected the supposed rights of the homosexual couples.  Meanwhile, the liberal wing wants to normalize homosexual conduct, and have the law regard treatment of homosexuals as equivalent to treatment of blacks and women.  So we have an almost even split among the justices–but that there are an odd number of justices.

The swing vote is almost certainly Chief Justice Roberts.  He has been strong on first amendment rights, but has also sided in favor of homosexual rights.  If either side were sure of his vote, they would probably have accepted the case as a way of establishing a precedent favoring that position.  It thus may be that his position is uncertain, and neither side wants to take the risk.

On the other hand, the court has agreed to hear the cake case, in which a baker claims that a state law requiring him to make wedding cakes for homosexual weddings is an infringement on his religious liberty and freedom of speech.  The speech issue seems to be the one that is carrying the most weight with the justices, but it may be that the rejection of the Mississippi case is hinting out an outcome here.  If in the cake case it were decided that a state law could compel service providers to treat homosexual weddings the same as heterosexual weddings, it would still be an open question as to whether a state law can prevent any such compulsion, and the Mississippi case would matter.  However, if the Court were to decide that the baker cannot be compelled to create a cake for a homosexual wedding, that inherently supports the Mississippi law, saying that no one can be so compelled.

So the fact that the Court did not accept the Mississippi case could mean that they are leaning toward judgement in favor of the baker in the cake case, or it could mean that the position of the court is too uncertain for them to take case on the same issue so soon.  What it does not mean is that the Court has the votes to overturn the Mississippi law and wants to do so.

Bible and Theology, Books by the Author, Elections, Games, Law and Politics, Logic and Reasoning, Music, Temporal Anomalies/Time Travel, Time Travel Movies

#219: A 2017 Retrospective

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This is mark Joseph “young” blog entry #219, on the subject of A 2017 Retrospective.

A year ago, plus a couple days, on the last day of 2016 we posted web log post #150:  2016 Retrospective.  We are a couple days into the new year but have not yet posted anything new this year, so we’ll take a look at what was posted in 2017.

Beginning “off-site”, there was a lot at the Christian Gamers Guild, as the Faith and Gaming series ran the rest of its articles.  I also launched two new monthly series there in the last month of the year, with introductory articles Faith in Play #1:  Reintroduction, continuing the theme of the Faith and Gaming series, and RPG-ology #1:  Near Redundancy, reviving some of the lost work and adding more to the Game Ideas Unlimited series of decades back.  In addition to the Faith and Gaming materials, the webmaster republished two articles from early editions of The Way, the Truth, and the Dice, the first Magic:  Essential to Faith, Essential to Fantasy from the magic symposium, and the second Real and Imaginary Violence, about the objection that role playing games might be too violent.  I also contributed a new article at the beginning of the year, A Christian Game, providing rules for a game-like activity using scripture.  Near the end of the year–the end of November, actually–I posted a review of all the articles from eighteen months there, as Overview of the Articles on the New Christian Gamers Guild Website.

That’s apart from the Chaplain’s Bible Study posts, where we finished the three Johannine epistles and Jude and have gotten about a third of the way through Revelation.  There have also been Musings posts on the weekends.

Over at Goodreads I’ve reviewed quite a few books.

Turning to the mark Joseph “young” web log, we began the year with #151:  A Musician’s Resume, giving my experience and credentials as a Christian musician.  That subject was addressed from a different direction in #163:  So You Want to Be a Christian Musician, from the advice I received from successful Christian musicians, with my own feeling about it.  Music was also the subject of #181:  Anatomy of a Songwriting Collaboration, the steps involved in creating the song Even You, with link to the recording.

We turned our New Year’s attention to the keeping of resolutions with a bit of practical advice in #152:  Breaking a Habit, my father’s techniques for quitting smoking more broadly applied.

A few of the practical ones related to driving, including #154:  The Danger of Cruise Control, presenting the hazard involved in the device and how to manage it, #155:  Driving on Ice and Snow, advice on how to do it, and #204:  When the Brakes Fail, suggesting ways to address the highly unlikely but cinematically popular problem of the brakes failing and the accelerator sticking.

In an odd esoteric turn, we discussed #153:  What Are Ghosts?, considering the possible explanations for the observed phenomena.  Unrelated, #184:  Remembering Adam Keller, gave recollections on the death of a friend.  Also not falling conveniently into a usual category, #193:  Yelling:  An Introspection, reflected on the internal impact of being the target of yelling.

Our Law and Politics articles considered several Supreme Court cases, beginning with a preliminary look at #156:  A New Slant on Offensive Trademarks, the trademark case brought by Asian rock band The Slants and how it potentially impacts trademark law.  The resolution of this case was also covered in #194:  Slanting in Favor of Free Speech, reporting the favorable outcome of The Slant’s trademark dispute, plus the Packingham case regarding laws preventing sex offenders from accessing social networking sites.

Other court cases included #158:  Show Me Religious Freedom, examining the Trinity Lutheran Church v. Pauley case in which a church school wanted to receive the benefits of a tire recycling playground resurfacing program; this was resolved and covered in #196:  A Church and State Playground, followup on the Trinity Lutheran playground paving case.  #190:  Praise for a Ginsberg Equal Protection Opinion, admires the decision in the immigration and citizenship case Morales-Santana.

We also addressed political issues with #171:  The President (of the Seventh Day Baptist Convention), noting that political terms of office are not eternal; #172:  Why Not Democracy?, a consideration of the disadvantages of a more democratic system; #175:  Climate Change Skepticism, about a middle ground between climate change extremism and climate change denial; #176:  Not Paying for Health Care, about socialized medicine costs and complications; #179:  Right to Choose, responding to the criticism that a male white Congressman should not have the right to take away the right of a female black teenager to choose Planned Parenthood as a free provider of her contraceptive services, and that aspect of taking away someone’s right to choose as applied to the unborn.

We presumed to make a suggestion #159:  To Compassion International, recommending a means for the charitable organization to continue delivering aid to impoverished children in India in the face of new legal obstacles.  We also had some words for PETA in #162:  Furry Thinking, as PETA criticized Games Workshop for putting plastic fur on its miniatures and we discuss the fundamental concepts behind human treatment of animals.

We also talked about discrimination, including discriminatory awards programs #166:  A Ghetto of Our Own, awards targeted to the best of a particular racial group, based on similar awards for Christian musicians; #207:  The Gender Identity Trap, observing that the notion that someone is a different gender on the inside than his or her sex on the outside is confusing cultural expectations with reality, and #212:  Gender Subjectivity, continuing that discussion with consideration of how someone can know that they feel like somthing they have never been.  #217:  The Sexual Harassment Scandal, addressed the recent explosion of sexual harassment allegations.

We covered the election in New Jersey with #210:  New Jersey 2017 Gubernatorial Election, giving an overview of the candidates in the race, #211:  New Jersey 2017 Ballot Questions, suggesting voting against both the library funding question and the environmental lock box question, and #214:  New Jersey 2017 Election Results, giving the general outcome in the major races for governor, state legislature, and public questions.

Related to elections, #213:  Political Fragmentation, looks at the Pew survey results on political typology.

We recalled a lesson in legislative decision-making with #182:  Emotionalism and Science, the story of Tris in flame-retardant infant clothing, and the warning against solutions that have not been considered for their other effects.  We further discussed #200:  Confederates, connecting what the Confederacy really stood for with modern issues; and #203:  Electoral College End Run, opposing the notion of bypassing the Constitutional means of selecting a President by having States pass laws assigning their Electoral Votes to the candidate who wins the national popular vote.

2017 also saw the publication of the entirety of the third Multiverser novel, For Better or Verse, along with a dozen web log posts looking behind the writing process, which are all indexed in that table of contents page.  There were also updated character papers for major and some supporting characters in the Multiverser Novel Support Pages section, and before the year ended we began releasing the fourth novel, serialized, Spy Verses, with the first of its behind-the-writings posts, #218:  Versers Resume, with individual sections for the first twenty-one chapters.

Our Bible and Theology posts included #160:  For All In Authority, discussing praying for our leaders, and protesting against them; #165:  Saints Alive, regarding statues of saints and prayers offered to them; #168:  Praying for You, my conditional offer to pray for others, in ministry or otherwise; #173:  Hospitalization Benefits, about those who prayed for my recovery; #177:  I Am Not Second, on putting ourselves last; #178:  Alive for a Reason, that we all have purpose as long as we are alive; #187:  Sacrificing Sola Fide, response to Walter Bjorck’s suggestion that it be eliminated for Christian unity; #192:  Updating the Bible’s Gender Language, in response to reactions to the Southern Baptist Convention’s promise to do so; #208:  Halloween, responding to a Facebook question regarding the Christian response to the holiday celebrations; #215:  What Forty-One Years of Marriage Really Means, reacting to Facebook applause for our anniversary with discussion of trust and forgiveness, contracts versus covenants; and #216:  Why Are You Here?, discussing the purpose of human existence.

We gave what was really advice for writers in #161:  Pseudovulgarity, about the words we don’t say and the words we say instead.

On the subject of games, I wrote about #167:  Cybergame Timing, a suggestion for improving some of those games we play on our cell phones and Facebook pages, and a loosely related post, #188:  Downward Upgrades, the problem of ever-burgeoning programs for smart phones.  I guested at a convention, and wrote of it in #189:  An AnimeNEXT 2017 Experience, reflecting on being a guest at the convention.  I consider probabilities to be a gaming issue, and so include here #195:  Probabilities in Dishwashing, calculating a problem based on cup colors.

I have promised to do more time travel; home situations have impeded my ability to watch movies not favored by my wife, but this is anticipated to change soon.  I did offer #185:  Notes on Time Travel in The Flash, considering time remnants and time wraiths in the superhero series; #199:  Time Travel Movies that Work, a brief list of time travel movies whose temporal problems are minimal; #201:  The Grandfather Paradox Solution, answering a Facebook question about what happens if a traveler accidentally causes the undoing of his own existence; and #206:  Temporal Thoughts on Colkatay Columbus, deciding that the movie in which Christopher Columbus reaches India in the twenty-first century is not a time travel film.

I launched a new set of forums, and announced them in #197:  Launching the mark Joseph “young” Forums, officially opening the forum section of the web site.  Unfortunately I announced them four days before landing in the hospital for the first of three summer hospitalizations–of the sixty-two days comprising July and August this year, I spent thirty-one of them in one or another of three hospitals, putting a serious dent in my writing time.  I have not yet managed to refocus on those forums, for which I blame my own post-surgical life complications and those of my wife, who also spent a significant stretch of time hospitalized and in post-hospitalization rehabilitation, and in extended recovery.  Again I express my gratitude for the prayers and other support of those who brought us through these difficulties, which are hopefully nearing an end.

Which is to say, I expect to offer you more in the coming year.  The fourth novel is already being posted, and a fifth Multiverser novel is being written in collaboration with a promising young author.  There are a few time travel movies available on Netflix, which I hope to be able to analyze soon.  There are a stack of intriguing Supreme Court cases for which I am trying to await the resolutions.  Your continued support as readers–and as Patreon and PayPal.me contributors–will bring these to realization.

Thank you.

Elections, Law and Politics

#203: Electoral College End Run

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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.

Law and Politics

#200: Confederates

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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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Bible and Theology, Law and Politics

#196: A Church and State Playground

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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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Law and Politics

#190: Praise for a Ginsberg Equal Protection Opinion

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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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Elections, Law and Politics

#172: Why Not Democracy?

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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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