Tag Archives: Constitution

#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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