Is there a Future for Democracy in America?

February 4, 2020

I’ve been writing about gerrymandering and election law since I was in law school, long enough to feel very discouraged. When Anthony Kennedy didn’t take advantage of his last crack at gerrymandering while still on the U.S. Supreme Court, after having teased us for years about his willingness to deal with it, I was sad to the core of my being. Ezra Klein’s “Polarization and the Parties” which came out a week ago in the Sunday Times galvanized my thinking, if not my hopes.

Klein made it clear that the combination of gerrymandering, the allocation of Senate seats and the electoral college would soon leave 70% of America represented by 30% of senators and vice versa, and the electoral college will continue to “elect” presidents who have lost the popular vote. With the Supreme Court continuing to be shaped by those disproportionate advantages in the Senate and the executive, Republicans will continue to be able to stave off a more equitable representation in the House of Representatives. In other words, democracy will be a memory replaced by institutionalized minority rule.

Can we do anything about it? Klein points out that with their power resting firmly on these legal impediments, the Republicans will continue to fight fiercely against anything resembling democracy. Flipping control of the White House and Congress would certainly make a difference but would not change the electoral college, the Senate’s skew toward the least populous states or its grip on Supreme Court appointments.

There’s much talk about amending the Constitution, but that requires three-fourths of the states with the same unrepresentative dynamics to approve. So fat chance fixing the Constitution, whether by amendment or a convention as spelled out in Article V of the Constitution.

Then what? Our Constitution was adopted “illegally” by the terms of the Articles of Confederation. Could we do the same, create a new Constitution and specify, as the Founders did, how it should be ratified. That’s been tried on the state level but met an unreceptive Supreme Court. Could we expect better from this Court? And who’d count the votes? The existing and affected states or some nonpartisan entity? By what method or machine?  And who’d pay? Perhaps we should hire five thirty-eight.com to gather private polls. But we’d be mired in questions of polling methods and ethics.

Maybe we should have let the Confederacy go? Chucking Texas alone would make a big difference – although Texas is changing. Or maybe the coasts should secede. Those alternatives would leave us a smaller, weaker, country, subject to alliances with foreign powers against each other – the biggest fear and reason for action of the people who wrote and ratified our Constitution. Would such a split be like the former Czechoslovakia or the former Yugoslavia, which is to say a peaceful split or a bloodbath? Trump’s “base,” by the way, has been arming itself for that bloodbath for years.

Or maybe some of the 70% of us need to resettle with the 30% and change the country from the bottom up. But on that too, as we’d have said in Brooklyn, fat chance. I think that means that the more we care about the results, the more radical our views, the more we have to roll up our sleeves and work together that much harder on the elections, no matter which candidate becomes our standard bearer.

— This commentary was broadcast on WAMC Northeast Report, February 4, 2020.


Should We Have a New National Constitutional Convention?

July 11, 2017

There have been calls for a new national constitutional convention. They are generally cast as calls for a convention to do something specific, rather than open-ended authority to propose changes. There is an argument about whether those calls fit the constitutional definition of state initiated calls for a convention and what such a convention might do, But clearly many states think they are valid and have proposed a new convention. Indeed such calls may be only a few states shy of the required two-thirds of the states, depending on how many calls are deemed valid. So I think we should talk about it. I’ll spare you the technical argument and focus on the issues.

It should be noted that small states have disproportionate voting power in the amendment process because it is based on the number of states agreeing to amendments, not the number of votes in the states which agree.

Conservative proposals to amend the Constitution suggest that they’d use a national convention to repeal the Supreme Court’s decisions on social issues like abortion, marriage, gay rights, religion, prayer, flag desecration and segregation. And some conservative proposals would cripple the national government with states’ rights amendments, like a balanced budget amendment, repeal of the income tax, mandatory revenue sharing, and letting states veto increases in the national debt. Other conservative efforts have included reinstituting state legislative selection of U.S. Senators, and reversing progress on school integration.

Liberals can use conservative proposals to scare liberal state legislatures away from calls for a new national convention, or they can try to scare conservative state legislatures off with liberal proposals.

Liberals proposals focus on equal rights and equal votes such as the Equal Rights Amendment, abolition of the electoral college, full representation for the District of Columbia,  and overturning Citizens United. There’ve been calls to abolish the death penalty. Liberals should also fight for a Black Lives Also Matter Amendment to hold public officials responsible for the harm they do and overturn exemptions and immunities that leave decent, unarmed Americans lying dead on our streets with no one “responsible.” Liberals should fight to remove rules that allow prosecutors to ignore constitutional obligations of fair play, rules that  immunize them from any responsibility for vicious and discriminatory behavior.

These very different visions reflect both core moral commitments of each side and tactical considerations. Neither liberals nor conservatives accept the bona fides of each others’ proposals. Worse, competing interpretation of the provisions of the Constitution for calling a new convention could deepen conflict over the legitimacy of whatever a convention produced. And I doubt we’d end up with a better country.

Nor does the problem ends there. The original substitution of the Constitution for the pre-existing Articles of Confederation “illegally” ignored the rules for change spelled out in the Articles. So suppose populous states now similarly announced they were forming a government to go into effect when a majority of the public agrees – a possibility with some academic support. By contrast to continued conservative admiration for Confederate traitors who made war on the U.S., that would be a relatively honorable route toward a new Constitution.

But the larger point is that a conservative attempt to make major changes followed by a strong liberal response could br dangerous. Competing constitutions once led to violence in Rhode Island and in Kansas. Violence, as we’ve been discovering in many countries in recent decades threatens democracy whenever armed groups refuse to put down their arms.

So I’m not confident that a new convention would improve the Constitution, solve problems among or unite us. I don’t think it’s a good direction to travel.

— This commentary was broadcast on WAMC Northeast Report, July 11, 2017.

 


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