Tag: Constitution

Minority rule is destroying the country. Here are some ideas on how to change that.

On By Dan KennedyIn Politics6 Comments

There’s something about writing a proposed constitutional amendment that has the whiff of nuttery about it — some guy sitting at home in his underwear (hey, that’s me!) raving about something that has no chance of influencing anyone.

But, having complained quite a bit about our slide into undemocratic minority rule — a consequence of small, Republican states having a disproportionate advantage in the Electoral College and the Senate — I thought I’d lay out one possible solution. Or solutions.

We could move to a parliamentary system, and that would certainly be an improvement on what we have now. But I thought it would be interesting to see what it would look like if we tried something less radical, but still comprehensive. So here we go.

The presidency

  • This one is simple. Abolish the Electoral College. Elect the president by popular vote. One person, one vote should be our lodestar. Let’s end the absurdity of voters in tiny Wyoming having nearly four times as much power as Californians.

Congress

  • The Senate is unfixable because of its two-senators-per state requirement. That makes it far worse than even the Electoral College. Let’s make the Senate a mostly honorary body whose members are appointed by the states. I would restrict the senators’ powers to choosing the wine at weekly social gatherings they would be required to attend.
  • House members should be elected to four-year terms in presidential-election years. No more midterms. House districts would be drawn by nonpartisan commissions. States would be free to set up multi-member districts if they choose. (Actually, they are free to do so now, but no one does.) For instance, Massachusetts could have three House districts instead of nine, and each district would elect three members.

The Supreme Court

  • The nine members would each be appointed to a single 16-year term. Each president would be guaranteed two appointments per term. Proposals to curtail the justices’ power ought to be considered as well, but I’m not going to address that here.

Elections

  • All federal elections would require a majority winner. If the first-place finisher in a multi-candidate field receives less than 50% of the vote, a runoff would be held.
  • Attempts to regulate campaign spending would be deemed not to be in violation of the First Amendment.
  • Needless to say, attempts to restrict the vote of the sort that a number of red states have adopted would be taken out with the trash and burned.

Problem solved! Two hundred thirty-four years of accommodating the former slave states are enough.

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How a super-empowered minority and our outmoded Constitution upended Roe

On By Dan KennedyIn Politics3 Comments

The U.S. Supreme Court’s decision to overturn Roe v. Wade is so huge and terrible that it’s difficult to get our arms around it. So let me just look at a small chunk of it — the deeply undemocratic nature of our electoral system. You can find various polls with differently worded questions, but, in general, the public was firmly in favor of retaining Roe before Thursday’s decision. So how did we get here?

I’ve written about this before, but it’s worth repeating. A healthy modern democracy is based on the will of the majority, with protections in place for the minority. That’s why we have the Bill of Rights. Unfortunately, we now have a situation where a minority of voters is so super-empowered that how the majority votes almost doesn’t matter. Consider:

  • Donald Trump’s three Supreme Court justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — were nominated by a president who lost the popular vote in 2016 by nearly 3 million votes. That’s a significant margin. But because the Electoral College favors small states, which are mostly Republican, Trump was able to defeat Hillary Clinton.
  • Those three justices were confirmed by a Republican Senate that represented far fewer Americans than the Democratic senators did. In the current 50-50 Senate, Democrats represent nearly 42 million more people than Republicans. That’s because each state gets two senators, regardless of population.
  • The skew is only getting worse as liberals move to more urban areas. Indeed, you can expect that one of the effects of the Roe decision is that young people will flock to urban areas in blue states — thus empowering small-state Republicans even more.

If something can’t go on forever, then it won’t. More than half the country isn’t going to put up with being permanently disempowered. I don’t know how we get from here to there, and make the changes we need to our outmoded 18th-century Constitution, but I’m confident that we will. Change looks impossible — then, suddenly, everything changes all at once.

Trump did not say the 14th Amendment is unconstitutional

On By Dan KennedyIn Media, Politics2 Comments
(Courtesy of the Byrom-Daufel family) Most 19th Century Chinese immigrants were single men, but a few families lived in the Portland area. The Byrom-Daufel family of Tualatin retained this portrait, but descendents no longer have the Chinese family name. Scan from print.
Chinese immigrants in Oregon. Birthright citizenship dates to 1898, when the Supreme Court cited the 14th Amendment in overturning a California law. Photo published by The Oregonian, courtesy of the Byrom-Daufel family.

My Facebook feed is filling up with posts from liberal friends informing me that Donald Trump is, among many other bad things, an ignoramus when it comes to the Constitution.

Trump allegedly stepped in it on Tuesday, telling Bill O’Reilly of Fox News that the 14th Amendment wouldn’t necessarily impede his rather horrifying proposal to deny citizenship to the children of undocumented immigrants born in the United States.

Cue the outraged headlines. “Donald Trump says 14th Amendment is unconstitutional” is the takeaway at Yahoo Politics. Or consider this, from Politico: “Trump to O’Reilly: 14th Amendment is unconstitutional.” Or Mother Jones: “Trump: The 14th Amendment Is Unconstitutional.”

Of course, it’s fun to think Trump is such a buffoon that he doesn’t realize something that’s part of the Constitution can’t be unconstitutional. All he’d need to do is spend a few minutes watching “Schoolhouse Rock!” videos on YouTube to disabuse himself of that notion.

But that’s not what Trump said. In fact, Trump made the perfectly reasonable assertion that the federal courts may be willing to revisit how they interpret the 14th Amendment. Trump told O’Reilly:

Bill, [lawyers are] saying, “It’s not going to hold up in court, it’s going to have to be tested.” I don’t think they have American citizenship, and if you speak to some very, very good lawyers, some would disagree…. But many of them agree with me — you’re going to find they do not have American citizenship. [Quotes transcribed by Inae Oh of Mother Jones, whose story is more accurate than the headline under which it appears.]

Birthright citizenship is not exactly a new issue. Jenna Johnson of The Washington Post noted earlier this week that, back in the early 1990s, none other than future Senate Democratic leader Harry Reid supported reinterpreting the 14th Amendment in order to end automatic citizenship — thus confirming a remark made on the campaign trail by Scott Walker, one of several Republican presidential candidates who have joined Trump in opposing it.

In searching the archives, I couldn’t find a specific reference to Reid. But The New York Times reported in December 1995 that House Republicans and some Democrats supported an end to birthright citizenship, with most arguing that a constitutional amendment would be needed and others claiming that legislation would suffice. Any attempt to enforce such legislation would have triggered exactly the sort of court challenge that Trump envisions.

And it’s not as though the 14th Amendment has stood immutable over time. After all, it wasn’t until 1954 that the Supreme Court ruled, in Brown v. Board of Education, that the amendment’s guarantee of “equal protection of the laws” forbade segregation in the public schools.

Birthright citizenship was recognized by the Supreme Court in 1898, three decades after enactment of the 14th Amendment. In that case, according to the 1995 Times article, the court overturned a California law that had been used to deny citizenship to children born in the United States whose parents were Chinese immigrants.

Trump’s rhetoric represents the worst kind of nativism, and he should be held to account for his words. But what he’s actually saying is bad enough. When the media exaggerate and distort, they hand him an undeserved victory.

Also published at The Huffington Post.

Three questions about those legal challenges

On By Dan KennedyIn Politics25 Comments

This isn’t fair — I’m going to be on the road until tonight, and I managed to mess up the WordPress app on my BlackBerry. So I won’t be able to approve comments for quite a while. But I do have three questions about legal challenges to the health-care law, and I’m hoping someone can answer them here.

1. Critics say the requirement that everyone must buy health insurance from a private company is unconstitutional. Yet no one to my knowledge has ever even raised that issue with regard to the Massachusetts law, which has the same requirement. Is there something different about the Massachusetts Constitution?

2. Under federal law, we are required to invest our money in a government-controlled retirement system (Social Security) and medical-insurance system (Medicare). Why is that constitutionally permissible if being required to buy insurance from private companies is not?

3. Is it even correct to call the insurance mandate a “requirement”? If you refuse to buy insurance, you simply pay a penalty of some sort, right? You’re not being branded as a criminal or even a civil offender as I understand it.

Thinking about “the religious test”

On By Dan KennedyIn Uncategorized8 Comments

Chris Lehmann repeats an oft-heard fallacy in an interview conducted by Ken Silverstein for Harpers.org. Reacting to Barack Obama’s and John McCain’s appearances with evangelical minister Rick Warren last Saturday, Lehmann says:

The only important issue about Saddleback is that the Constitution specifically forbids any religious test for office, so why are you having an evangelical minister asking the two candidates about their relationship to Christ? But the people who are in charge of delivering useful information to the public about the process have no historical frame of reference. They literally don’t know what they’re doing.

Lehmann’s right about what the Constitution says regarding a religious test, but he suggests that it somehow applies to the media and to voters. It does not. Here’s the exact language, from Article VI:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

That’s pretty clear: the government may not establish a religious test for candidates. If Congress were to pass a law stating that only believing Christians may run for president, or that practicing Muslims may not, then that would be unconstitutional under Article VI.

If, on the other hand, a voter decides he will not consider any candidate who isn’t an evangelical, that’s not only his right, but it’s perfectly in accord with both the letter and the spirit of the Constitution. Likewise, Rick Warren is free to invite the candidates in for a talk; the candidates are free to accept or decline; and the media are free to cover it or not.

Needless to say, this is a relevant issue, as Mitt Romney remains the subject of some speculation as to whether John McCain will choose him as his running mate. Some evangelicals have made it clear that they would object vociferously because Romney is a Mormon. That sentiment may be offensive to you and me, but it’s not offensive in the least to the Constitution.

If you think about it, we’ve all got our religious tests. Would you vote for a so-called Christian who believes we should hasten the Apocalypse through nuclear war? Of course you wouldn’t. The Constitution says such a person can run for office. It doesn’t say you have to vote for him. Neither does it say the press and the public can’t make an issue of his beliefs.

The Constitution is supposed to be a check on the government, not on the people.