Tag Archives: U.S. constitution

September 2024 in Review

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I was sitting down to do my “October in Review” post and realized I never got around to September. So better late than never. I’m writing this on November 9, 2024 after the U.S. election but I’ll try to give U.S. politics a rest in this post (update: I almost succeeded although I couldn’t resist an interesting point about the U.S. Constitution).

Most frightening and/or depressing story: There is nothing on Earth more frightening than nuclear weapons. China has scrapped its “minimal deterrent” nuclear doctrine in favor of massively scaling up their arsenal to compete with the also ramping up U.S. and Russian arsenals. They do still have an official “no first strike” policy. The U.S. by contrast has an arrogant foreign policy.

Most hopeful story: AI should be able to improve traffic management in cities, although early ideas on this front are not very creative.

Most interesting story, that was not particularly frightening or hopeful, or perhaps was a mixture of both: Countries around the world update their constitutions about every 20 years on average. They have organized, legal processes for doing this spelled out in the constitutions themselves. The U.S. constitution is considered the world’s most difficult constitution to update and modernize.

the U.S. constitution’s resilience? or rigidity?

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Flexible things can bend without breaking, while strong, rigid things can withstand a lot of force up to a point, then break catastrophically. Is the U.S. Constitution the latter? This Lawfare podcast on the Constitution made some interesting points, and I wish they would post a transcript.

  • The U.S. Constitution is just outdated. Countries around the world looking to write a new constitution used to look to the U.S. Constitution as a model, but this is no longer the case. One U.S. Supreme Court justice in an interview suggested South Africa’s latest constitution as a good modern model.
  • Constitutions around the world are amended on average about every 20 years. Some even lay out regular time tables for review and updating.
  • The U.S. Constitution is the world’s hardest constitution to amend. Newer constitutions tend to make the most important rights hard to amend, but less important details easier to amend, with a few tiers of how large a majority is needed to approve various proposed amendments.
  • The U.S. Constitution mostly lays out negative rights, in other words things the government can’t do to you like take away your gun. Newer constitutions include positive rights, like a right to health care or a clean environment.
  • Interestingly, individual U.S. state constitutions are much more modern in terms of rights, and many are updated regularly.

The Congressional Research Service did a report in 2016 on the constitutional convention process, which is one way the constitution can be amended, theoretically by the states and outside the direct control of Congress. Here are a couple interesting paragraphs:

From the 1960s through the early 1980s, supporters of Article V conventions mounted vigorous unsuccessful campaigns to call conventions to consider then-contentious issues of national policy, including a ban on school busing to achieve racial balance, restrictions on abortions, apportionment of state legislatures, and, most prominently, a requirement that the federal budget be balanced, except in wartime or other extraordinary circumstances. Although they came close to the constitutional requirement, none of these campaigns attained applications from 34 states.

With the failure of these efforts, interest in the Article V Convention alternative declined for more than 20 years, but over the past decade, there has been a gradual resurgence of attention to and support for a convention. Advocacy groups across a broad range of the political spectrum have embraced the convention mechanism as an alternative to perceived policy deadlock at the federal level. Using the Internet and social media to build campaigns and coalitions that once took much longer to assemble, they are pushing for a convention or conventions to consider various amendments, including the well-known balanced budget requirement, restrictions on the authority of the federal government, repeal of the corporate political contributions elements of the Supreme Court’s Citizens United decision, and others.

Sure, Citizens United has to go. Rather than the ghosts of George Washington and Thomas Jefferson whispering in the ears of our nine unelected Supreme Leaders to tell us what the First Amendment and all the other amendments mean in 2024, we should come to consensus on new words that say clearly what we want them to say. But even more fundamental would be to amend the constitution to make it easier to amend in the future. Reviewing constitutions around the world for modern best practices sounds like a great idea. Instituting tiers for the level of consensus needed to pass various types of amendments sounds like a great idea. And adding a time table for regular review of the constitution seems like a good idea. For example, maybe Congress would have to vote on amendments proposed by the states at least once per session or once every X years, or else a constitutional convention would automatically be triggered.

Mark Milley

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This upcoming (? – the link is to the Wayback Machine) article in the Atlantic is about how Mark Milley made sure Trump was not able to subvert the 2020 election. Laudable I suppose, but heed this paragraph:

Milley and other military officers deserve praise for protecting democracy, but their actions should also cause deep unease. In the American system, it is the voters, the courts, and Congress that are meant to serve as checks on a president’s behavior, not the generals. Civilians provide direction, funding, and oversight; the military then follows lawful orders.

The Atlantic, via the Wayback Machine

It’s not hard to imagine an alternate scenario where Trump’s scheme to subvert the election succeeds, and the military announces it is temporarily suspending the Constitution to protect the Constitution. A general takes over as president in a “caretaker” role until such time as a free and fair election can be organized and held, and the Constitution restored. Maybe this could even work out, but if it happens one time it is likely to happen again, and the more times in happens the more of a joke the Constitution becomes. Tweaks could be made to the Constitution to stabilize whatever it was that we think caused it to become unstable, and over time we would deviate more and more from democracy and the rule of law, even if the military governors were benevolent. And of course, there is not guarantee there would be – you could get somebody bad emerge as a leader, factions could emerge, and things could get ugly.

May 2022 in Review

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Most frightening and/or depressing story: The lab leak hypothesis is back, baby! Whether Covid-19 was or was not a lab accident, the technology for accidental or intentional release of engineered plagues has clearly arrived. And also, the world is waking up to a serious food crisis.

Most hopeful story: I came up with (but I am sure I didn’t think of it first) the idea of a 21st century bill of rights. This seems to me like a political big idea somebody could run with. I’ll expand on it at some point, but quick ideas would be to clarify that the right to completely free political speech applies to human beings only and put some bounds on what it means for corporations and other legal entities, and update the 18th century idea of “unlawful search and seizure” to address the privacy/security tradeoffs of our modern world. And there’s that weird “right to bear arms” thing. Instead of arguing about what those words meant in the 18th century, we could figure out what we want them to mean now and then say it clearly. For example, we might decide that people have a right to be free of violence and protected from violence, in return for giving up any right to perpetrate violence. We could figure out if we think people have a right to a minimum standard of living, or housing, or health care, or education. And maybe clean up the voting mess?

Most interesting story, that was not particularly frightening or hopeful, or perhaps was a mixture of both: I found one easily accessible and understandable source of Covid-19 wastewater surveillance data.

Is the U.S. Supreme Court Corrupt? (alternate title considered: Clarence Thomas, You Stink!)

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There has been a lot of focus on voting rights lately, but maybe our democracy is already gone if the Supreme Court has become corrupt. Consider:

  • Bush v. Gore. After 22 years, I still don’t know what to make of Bush v. Gore. The decision ultimately turned on arcane legal arguments that ordinary people are unable to follow, and that is obviously not a case of the people of our nation selecting a leader democratically. I still mostly blame the state of Florida for not having effective procedures in place for people to vote, then to count the vote, then to recount the vote if needed. And I thought at the time that even if the Supreme Court flipped a coin, it was best for them to have the last word on a question of the utmost and obvious national importance. However, Al Gore would have won that election if the votes had been counted accurately, and we would be living in a different world today.

In 2001, the National Opinion Research Center (NORC) at the University of Chicago, sponsored by a consortium of major United States news organizations, conducted the Florida Ballot Project, a comprehensive review of 175,010 ballots that vote-counting machines had rejected from the entire state, not just the disputed counties that were recounted.[3] The project’s goal was to determine the reliability and accuracy of the systems used in the voting process, including how different systems correlated with voter mistakes. The study was conducted over a period of 10 months. Based on the review, the media group concluded that if the disputes over the validity of all the ballots in question had been consistently resolved and any uniform standard applied, the electoral result would have been reversed and Gore would have won by 60 to 171 votes.

Wikipedia

So blame Florida. Yet, also according to Wikipedia, a majority of legal scholars who have studied the case disagree with the Supreme Court decision. So why did these five particular people (it was a 5-4 vote) have the right to decide our country’s future?

  • Citizens United. This is the worst. The single biggest reason the United States is not a true democracy is not our imperfect voting system. It’s the capture of our government by big business interests, so that money ends up deciding elections rather than votes. This is legalized corruption, and the Supreme Court legalized it. We tend to think they did this for ideological reasons, but what if big business lobbyists are getting to them? It would be hard to say we live in a democracy in that case. I had not considered this possibility until recently.
  • Pollution and Climate Change. Bernie Sanders and Elizabeth Warren make this case fairly well in a brief filed in advance of a case where the Supreme Court may throw away our nation’s air quality to line the pockets of the fossil fuel industry.

The industry-funded and industry-promoted arguments made here have been repeatedly rejected by the Court, and would empower and enrich polluting corporations at the expense of public health, welfare, and the environment. The Court should refuse to participate in this industry-driven project. Reversals of precedent that reek of politics, and are advanced by thinly-disguised but highly motivated industry front groups, create a “stench” that is likely to undermine the public’s remaining faith in the Court.

Brief of U.S. Senators Sheldon Whitehouse, Richard Blumenthal, Bernie Sanders, and Elizabeth Warren as Amici Curiae in Support of Respondents
  • Which brings me to Clarence Thomas. There have been a number of news stories recently suggesting that his wife is acting as an unpaid lobbyist for various industry groups, and that he is in regular contact with conservative governors representing special interests. If this is what is determining the outcome of court cases, the court is corrupt and the United States is not a democracy.

There is no higher legal authority in the judicial system that can accuse and find a justice guilty of a crime. That would have to be done by Congress. Impeaching a justice every once in a while might be a good idea to keep the court on notice that there are checks and balances in our country, and Clarence Thomas would be an outstanding candidate. Of course, it is almost impossible to imagine our even more corrupt Congress actually doing this.

Term limits for justices would also obviously be a good idea. The proposal for an 18-year term limit, so that each 4-year presidential term would come with two retirements and two new appointments, seems completely reasonable.

I’m going to agree with Bernie Sanders, as I often do. There is a reek and a stench wafting from the direction of the U.S. Supreme Court, and it is undermining the public’s remaining faith in the institution. If Bush v. Gore happened today, I personally would not be able to accept their decision as having any legitimacy, as I grudgingly did in 2000 even though I hated the outcome.

how to fix the U.S. Constitution

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John Davenport, a professor (of philosophy?) at Fordham University, has some proposals to fix parts of the U.S. Constitution that he says are outdated. I am 100% on board with cleaning up election finance and clarifying the speech rights of corporations. Others I hadn’t thought about as constitutional amendments, but I think all these ideas are worth considering.

  • Changes to how we do elections: “rotation of early primaries among all our states, automatic runoffs on ranked-choice ballots, fair district lines, and uniform federal requirements for election integrity”
  • “overturning the Citizens United precedent through an amendment that establishes voter-owned elections with public financing of campaigns, very strict limits on all private donations, and requirements for candidates in all federal races (and all cabinet appointees) to disclose ten years of tax records. The amendment should include a clear statement that corporations—whether for-profit or nonprofit —do not have the same rights to spend on “speech” as real persons. Political advertising by corporations and large PACs should be strictly limited.”
  • 10-year gap between serving in Congress and working as a lobbyist, restrictions on all federal officials going to work for industry they were regulating (he doesn’t say how long), restrict access of lobbyists to federal officials, and use tax law to further limit lobbying (he doesn’t say how)
  • get rid of the Senate filibuster, and allow 55% of House members to force a vote (maybe, but consensus is a worthy ideal, and you can’t have 55% of the population voting to gas the other 45%)
  • 18-year term limits in the Supreme Court, which would mean exactly two appointed during each 4-year presidential term. If a justice retires or dies during their term, he suggests picking a lower federal judge by lottery to serve out the remainder of their term. Congress would also be required to vote on judicial appointments within six months (or what, they are automatically confirmed?)
  • Now to limit future Presidents: clarify what constitutes an illegal campaign contribution, treason, contempt of Congress, what justifies impeachment, and require blind trusts.
  • 10 year terms for the Attorney General and director of the FBI, and dismissing them requires agreement between the President and three-fifths of the House
  • limits to appointing family to government positions
  • naturalized citizens qualify for any office after 20 years

This all sounds pretty good. I think we have an enormous amount of inertia built into the system though because any individual or small group of politicians who support the campaign finance measures would pretty easily be ousted by those who do not. It’s like disarmament – everyone giving up the weapons all at once is the best solution for everyone, but those who can trick the rest into doing it while they hold on to theirs would then be able to blow up the others. Corporate and special interest money are the electoral weapons of mass destruction that all parties should give up simultaneously as the best outcome, but instead of arms talks we seem to be in an arms race with no end in site. We’ve had a couple relatively strong leaders make a push on this (Ralph Nader, Bernie Sanders) and they’ve come up short. The “mainstream politicians” always argue that it would be nice to give up the weapons, but the other side won’t do it and we have to win before we have any chance to reform the system from within. Then they get elected, and the cycle repeats.

There is also the small matter of the U.S. Constitution being our king and god. Seriously, we don’t have a sovereign ruling by divine right, so we treat the Constitution almost as a holy text that should be changed infrequently and only with a damn good reason. And there is some advantage in this – constitutions have come and gone in almost all other countries since 1783, while the U.S. form of government has proven pretty stable. The flip side of stability is resistance to change. The system was intentionally designed that way, but maybe we have gone so long without tightening a few screws here and there to keep it from wobbling, and now big structural changes are needed to keep it from collapsing.

I would also get rid of the electoral college and the states, by the way. Or if I didn’t get rid of the states entirely, I would make it much easier to carve out new ones from bits and pieces of the old ones. State borders have zero cultural, economic, or physical significance. Their time has come and gone and they are holding us back.

Article V

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I think most Americans have a basic understanding that the Constitution can be amended, but that this is hard to do and therefore is not done very often. We treat our Constitution almost as a sacred text and that is one reason that even though our country is young compared to many others, its form of government has persisted in its current form longer than almost any other (I want to say longer than any other, but someone more knowledgeable than me could probably prove me wrong.)

Anyway, there is another way amendments can happen without the consent of Congress, which is for legislatures in two thirds of the states to force a constitutional convention. Sure, we all read about that when we studied the Colonial period in elementary school, right? I can actually walk over to Independence Hall on my lunch break any time I want and see where that all happened.

It turns out that as of now, December 2017, 28 U.S. state legislatures have voted to call a constitutional convention. 34 states would represent the two-thirds required. This could be a good thing. For example, a constitutional convention could clarify the definition of a “person” and get us the clean elections we so deserve. But that is not what is behind this. What is behind this is people who want to gut the federal government’s ability to tax, provide benefits, regulate interstate commerce, and protect the environment. This could actually be the beginning of the end of the republic.

becoming a new U.S. state

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Just following up on what the U.S. Constitution has to say about my idea of a metro area seeking to become a state:

New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

Hmm, so if the Philadelphia metro area (which includes parts of Pennsylvania, New Jersey, and Delaware) wanted to become its own State, it would need to sell all three existing states and the U.S. Congress on the idea. It sounds far-fetched. Then again, rural voters are often under the mistaken impression that they are subsidizing urban areas, even though the evidence proves that the exact opposite is the case. So if Philadelphia wanted to leave Pennsylvania for New Jersey, and it were put to a referendum, people might go for it. Electoral votes would be a potential sticking point, so getting rid of the Electoral College could help make something like this slightly more plausible. It still sounds implausible under our current (241 years and counting) Constitution. Still, there could be enormous advantages to a metro area controlling its own tax policy, housing policy, infrastructure policy, environmental policy, etc.