E Pluribus Unum, For Better Or Worse

Perhaps you’ve looked at a map and thought it might be a good idea if the United States came apart at the seams. I have. If only we could make those other people go away!

Abraham Lincoln didn’t agree, of course, but he never met our current president or Mitch McConnell. 

Akim Reinhardt, a history professor in Maryland, says we should seriously consider the idea:

Is there anything more clichéd than some spoiled, petulant celebrity publicly threatening to move to Canada if the candidate they most despise wins an election? These tantrums have at least four problems:

1. As if Canada wants you. Please.
2. Mexico has way better weather and food than Canada. Why didn’t you threaten to move there? Is it because of all the brown people? No, you insist. Is it the language? Well then if you do make it to Canada, here’s hoping they stick you in Quebec.
3. New Zealand seems to be the hip new Canada. I’ve recently heard several people threaten to move there. News flash, Americans: New Zealand wants you even less than Canada does.
4. [Note: #4 isn’t really a problem so I’m leaving it out.]

. . . I’ve got a much better alternative: Stay put and begin a serious, adult conversation about disuniting the states.

If, through the vagaries of the Electoral College, 45% of U.S. voters really do run this nation into an authoritarian kleptocratic, dystopian ditch, then instead of fleeing with your gilded tail between your legs, stay and help us reconfigure the nation. It might be the sanest alternative to living in Txxxx’s tyranny of the minority, in which racism and sexism are overtly embraced, the economy is in shambles, the pandemic rages unabated, and abortion may soon be illegal in most states as an ever more conservative Supreme Court genuflects to corporate interests and religious extremists.

And of course it cuts both ways. Should current polls hold and Joe Biden manage to win the election with just over half the popular vote, those on the losing side will be every bit as upset. So upset that they too would likely open to a conversation about remaking an America.

Indeed, no matter how this turns out, about half the nation will feel like they can no longer live with what America is becoming, even as they live in it. The losing side, whichever it may be, will want to wrest this country back from those who seem increasingly alien to them. So perhaps national salvation comes when the winning side remains open to a discussion the losers will launch about radically redesigning the United States. . . .

It is time for the rest of us to begin a serious discussion about national disincorporation. About disuniting the states. Because no matter who wins, about half the nation will not want to live with it. Tens of millions of Americans on the losing side will not trust the winner to govern fairly, competently, or with the nation’s best interests at heart.

It’s a recipe for disaster. We need to get ahead of this discussion. . . .

Let me be clear. I am not advocating a unilateral declaration of secession and military assault on federal installations like the treasonous, Confederate slave-owners did in 1861. Rather, I am advocating serious discussions about untangling this fractured nation. For finding a peaceful, constitutional solution that either dissolves or drastically reconfigures the United States.

I believe it may be the most sensible and mature approach to dealing with a deeply riven partisan divide that has done nothing but worsen these last forty years, and increasingly breeds mutual frustration and resentment among tens of millions of Americans. The U.S. constitutional system is predicated on compromise, and the Republican Party has spent the last quarter-century working against compromise with increasing fervency. That’s not a smear, it’s a statement of fact. It’s a central tenet of their politics. Republicans are openly dismiss compromise and try to get everything they want and accept nothing they don’t.

It has become dysfunctional. And it’s not going to change anytime soon. . . .

Though perhaps unfathomable at first glance, we may actually be nearing the point where a majority of Americans are ready to call it quits on our current national incarnation. . . .

After all, in the world of national governments, 231 years is a really long time. And it wouldn’t even be our first rodeo.

We have done this before. The Constitution, drafted in 1787 and ratified in 1789, peacefully replaced an earlier form of United States national government organized under the Articles of Confederation. Yes, drafting the Constitution and getting the nation to adopt it over the Articles were difficult processes, hardly perfect, and engendered a fair bit of acrimony at the time. But it came about, peacefully (for the most part), and led to something that’s lasted well over two centuries.

Is it so impossible then to imagine the United States reconfiguring itself once again?

Of course a new United States could take many shapes. . . .

But regardless of what shape it might take, perhaps the most important thing is to have the conversation. Like adults. To talk about what it means to share national governance; how it’s working to our satisfaction, and how it’s not; and what we might do to improve it. . . .

Or perhaps, irony wins the day. Maybe serious discussion about disunion actually help decrease partisan tensions. Simply broaching the topic in a serious manner may force many Americans to recognize how close we are to losing we’ve always known.

Or perhaps such discussions really do lead many Americans to decide that it’s time to replace We the People, with You and Us the People.

Unquote.

Prof. Reinhardt has a few ideas about how this dismemberment might be accomplished. We might become two or three nations; change the Constitution to give more power to individual states; combine states or divide them up, etc. To use two old phrases, thinking about dividing the U.S. is a parlor game and a pipe dream.

Here’s one reason. Although we think of blue states and red states, some of them are purple. In addition, if you drill down further, America is an even greater mixture of blue and red. This is a map with counties marked blue or red depending on how they voted in 2016, with each county assigned space on the map based on its population.

countycartrb512

Assigning either blue, red or purple to each county based on the percentage that voted one way or the other would make it even harder to separate us by our political leanings.

I think a better and more practical solution will be to reinstate majority rule in the United States by making the Electoral College obsolete, getting rid of the filibuster in the Senate and granting statehood to Puerto Rico and Washington D.C. That would allow the federal government to pursue more progressive policies, which would help the economy, allow more social ills to be addressed and reduce inequality.

We also need to remove some of the emotion surrounding three issues: abortion, gun control and the Supreme Court. Abortions are already becoming more rare; putting more emphasis on education and birth control would reduce them further. Private ownership of guns is here to stay; but somehow we need to do what the majority of Americans want, i.e.  institute sensible gun control. A revised, clarified Second Amendment might allow us to do that while protecting a citizen’s “right to bear arms”. The Supreme Court has become too political. I’d add three seats, so we’d have 12 justices evenly divided between Republicans and Democrats. No more 5-4 decisions. If a ruling can’t get a majority, let the lower court decision stand. 

Maybe thinking about how we could make America a better country for people on the right and left and in the middle is also a parlor game and a pipe dream. It seems to me, however, that a more perfect union is within our grasp if we make the effort. It would be much harder to make those other people go away.

On Fixing the Supreme Court

The Supreme Court being in the (bad) news, someone posted a link to a forthcoming article in the California Law Review. The article, “Democratizing the Supreme Court”, is 71 pages long. Below are 2 1/2 pages of excerpts. I think they’re interesting. 

Before getting to that, however, I want to point out that the effort to defang the Electoral College is further along than most people realize. This is good news:

The National Popular Vote Interstate Compact will guarantee the Presidency to the candidate who receives the most popular votes across all 50 states and the District of Columbia. The Compact ensures that every vote, in every state, will matter in every presidential election. The Compact is a state-based approach that preserves the Electoral College, state control of elections, and the power of the states to control how the President is elected.

The National Popular Vote bill has been enacted by 16 jurisdictions possessing 196 electoral votes, including 4 small states (DE, HI, RI, VT), 8 medium-sized states (CO, CT, MD, MA, NJ, NM, OR, WA), 3 big states (CA, IL, NY), and the District of Columbia. The bill will take effect when enacted by states with 74 more electoral votes.  The bill has passed at least one chamber in 9 additional states with 88 more electoral votes (AR, AZ, ME, MI, MN, NC, NV, OK, VA).

Ok, back to the Supreme Court:

Supreme Court reform is on the progressive agenda, but the debate about how to conceptualize and therefore to pursue it has barely begun. . . . Though only in early stages, our era’s discussion now risks brevity and error. Historical memories have favored “court-packing” or personnel expansion of the institution as practically the only imaginable reform. . . .

The basic purpose of this article is to counteract this risk. It reconsiders the criteria of reform, not with the assumption that the goal is re-legitimating the Supreme Court, but with the necessity of progressive transformation of the country in mind. . . .

This article [compares and contrasts] the widest range of imaginable statutory reforms under our current constitutional regime. These include balancing the Supreme Court between parties, turning to expert or merit selection, using lotteries to compose decision-making panels from larger pools, passing jurisdiction stripping statutes (potentially ones introducing alternative executive branch adjudication), institutionalizing higher voting thresholds for judicial decisions, or opening the possibility of their legislative override . . .

The last discussion of Supreme Court reform, climaxing in the emergency of the 1930s, is a cautionary tale more than an inspiring precedent. Formally, Franklin Roosevelt failed in court reform, even while leaving a memory of his own solution—court packing—as if it were the most viable choice now. . . . The lesson of the last reform era for our own is that we must democratize the Supreme Court . . .

The consequence for the discussion of Supreme Court alternatives is straightforward. It must begin with how to diminish the institution’s power in favor of popular majorities. Asking “how to save the Supreme Court” is asking the wrong question. For saving it is not a desirable goal; getting it out of the way of progressive reform is. The New Deal court reform had the chance to counteract the assumption that judicial power is hardwired out of necessity or in principle into American politics, only to see it canonized instead. The entire point of Supreme Court reform ought to be to avoid repeating that mistake . . .

The Supreme Court is not a separate problem from the crisis and deadlock of the American political system, in view of the fact of a rising [liberal] majority abetted by demographic and generational change and more and more open to national renovation. It is part of crisis and deadlock, to be reevaluated rather than restored in its basic functions if progressive reform is to occur. . . .

Progressive activists and scholars have proposed a host of reforms in recent years, from court packing to jurisdiction stripping to term limits. [These] various proposals can . . . be sorted into one of two types. . . . The first type, which we call “personnel” reforms, propose to alter the Supreme Court’s partisan or ideological composition. . . . [They] try to improve our situation by adjusting the Supreme Court’s membership . . . [Since they only deal with] who sits on the bench, personnel reforms take for granted that the Supreme Court wields tremendous policymaking authority. The goal of such reforms is thus, for progressives, to wrest that authority away from conservatives.

By contrast, the second type of proposal, what we call “disempowering” reforms, take aim at what the Supreme Court is permitted to do. Reforms like jurisdiction stripping or supermajority voting rules for judicial review, for example, limit the Supreme Court’s ability to make policy to varying degrees. In so doing, disempowering reforms effectively reassign power away from the judiciary and to the political branches. Unlike their membership analogues, these ‘small-d’ democratic reforms have no obvious ideological valence . . . Partisan advantage would be tied directly—and evenly—to electoral outcomes. Such reforms thus amount to mutual judicial disarmament, lowering the stakes of judicial appointments and increasing (or at least evening) the stakes of congressional and presidential elections. . . .

Many of the personnel reforms . . . try to restore or preserve the Supreme Court’s perceived role as an apolitical decision maker. . . . Immediately, however, this shift from non-ideological to ideological moderation or centrism should set off alarms. Insofar as the Court is supposed to be a neutral arbiter of the law, reforms that conduce to ideological moderation are fundamentally of the wrong type. The neutral arbiter ideal is essentially what Chief Justice Roberts invoked with his in/famous judges as “umpires” metaphor. That image of judging, of course, assumes a sharp distinction between politics and law. . . . [But] it makes no sense to insulate judging from politics by imposing moderate or centrist politics as opposed to politics that are far left or far right. . . .

Few if any would argue that the Supreme Court’s legal analysis goes uninfluenced by willfulness or motivated reasoning. Especially in politically significant cases, the consensus among scholars and other legal observers is that the Supreme Court’s decisions are, to the contrary, driven substantially by ideological commitment. . . . To impose a moderate or centrist ideology is not to remove ideology from the equation. Just as those on the far left or the far right are susceptible to motivated reasoning or willfulness, those in the political center have substantive preferences that can lead them astray if those preferences do not align with the law. Put more simply, it is hard to see how merely changing the Court’s ideology would make the Court less ideologically motivated. . . . [I think the idea is that moderate or centrists are less ideological, so having more of them on the court would reduce the effect of ideology on the Court’s decisions.]

The push for democratic legitimacy starts from the observation that much of the Supreme Court’s work is inherently political. Especially in constitutional cases, many of the claims the Court is asked to evaluate are legally underdetermined or, at a minimum, epistemically opaque. As a result, Supreme Court justices inevitably rely upon policy inclinations in deciding what the Constitution requires or permits. The question for small-d democratic reformers, then, is how to reconcile the ideological nature of these determinations with a commitment to democratic self-rule. For proponents of disempowering reforms, the way to address the apparent tension is to redirect decision-making authority away from the democratically unaccountable judiciary and toward the political branches. . . .

Among personnel reforms, court packing is probably the most uncontroversially legal. . . . The number of seats on the Supreme Court has been set since its inception by statute and Congress has adjusted the size of the Court – from six to seven, to nine, to ten, back to nine – numerous times.This longstanding congressional practice couples with relative constitutional textual silence. While Article III assumes the existence of a Supreme Court and Article I, section 3, that there will be a Chief Justice, nothing else in the text seems to bear on how large or small the Court must be. . . . After court packing, the legality of personnel reforms gets murkier. . . .

Disempowering reforms are also contestable, legally speaking. Jurisdiction stripping is perhaps the most aggressive reform and famously raises numerous constitutional questions—questions that become more difficult the more comprehensive the strip. In particular, the Supreme Court has remarked repeatedly that “serious” concerns “would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim.” Such worries apply to specific constitutional issues, let alone to broad categories of claims.

Despite this controversy, stripping courts of jurisdiction, even over constitutional challenges, has strong textual footing. As numerous scholars have observed, Article III’s grant of authority to Congress to “make … Exceptions” to the Supreme Court’s appellate jurisdiction while at the same time placing the existing of “inferior” federal courts entirely within congressional control suggests that Congress enjoys sweeping authority concerning which cases federal courts are permitted to hear. And as to state courts, both the Supremacy Clause and the Necessary and Proper Clause appear to provide Congress substantial discretion there as well. Taken together, Christopher Sprigman argues that these features indicate the Constitution “gives to Congress the power to choose whether it must answer, in a particular instance, to judges or to voters,” relying in some instances on political rather than judicial checks to enforce constitutional constraints. . . .

Court reform is a debate about both means and ends. The conventional prevailing view is that we should use non-neutral means of reform that correct distortions in membership on the bench in order to achieve the neutral end of an apolitical Supreme Court. In opposition to this view, our argument has favored the neutral means of democratization—which shifts power to whoever wins elections to determine the fate of the country—as the most plausible way to achieve non-neutral ends.

Of course, somebody else than progressives could win those elections, and constitute the political majorities to come. But if right-wing nationalists win, the country is already lost. And if a centrist coalition in either party prevails, they establish the outcome many court reformers hope to achieve through personnel reforms.

But the rightist and centrist outcomes are not the only possibilities. If a progressive coalition wins, it could take advantage of the power reassigned from the Court to allow politics to redeem the country—something that no court, let alone our Supreme Court, will ever do.

Mapping the 2016 Election

As the president and his co-conspirators plumb even deeper depths of evil and stupidity, it’s worth reminding ourselves how a serious candidate for Worst Person in the World got his new job. A good way to start is to take a look at this new map from the xkcd site. Each little blue person represents roughly 250,000 people who voted for Clinton. Each little red person represents the same number who voted for the evil, stupid guy. (There are also a few little gray people who represent third-party voters.)

xkcd

As you can see, the blue voters are clustered on the coasts and around Chicago. The red voters are spread more evenly around the country. There are 263 blue people vs. 252 red people. That roughly corresponds to the fact that Clinton got 66 million votes while her opponent got 63 million.

Since the United States tries to follow its 228-year old Constitution, however, each state actually held its own separate presidential election. Unfortunately, the Terrible Person won more states (30 to 20 for Clinton), including many of the relatively empty states in the western part of the country. Since almost all of those separate elections were and continue to be “winner-take-all”, whoever won a given state received all of that state’s “electoral” votes, no matter how large or small their margin of victory was. 

Thus, Clinton got 55 electoral votes for winning California by a very large margin and the Worst Candidate got 46 electoral votes for winning Michigan, Pennsylvania and Wisconsin by very small margins. (Which shows that if you want to become president, it’s better to win lots of states, even by very small margins, instead of winning fewer states, even by very large margins.)

So, after all the electoral votes from all the states were added up, the Very Stable Genius won a big victory in the “Electoral College” (304 electoral votes to 227) and an important new job, despite getting three million fewer votes nationwide.

If nothing else, next time you see a map like the one below, showing who won America’s 3,000 counties, keep in mind that it’s a poor way to represent an election, assuming the election is based on people voting, not cows or tumbleweeds.

990px-2016_Presidential_Election_by_County.svg

You Can Spare a Few Dollars to Lobby the Electoral College

Politico reports that full-page advertisements are running in several newspapers encouraging Republicans in the Electoral College to vote against the Orange Menace. The advertisements are being paid for by a Go Fund Me campaign that’s raised more than $250,000 so far. You can make a donation here. The complete text of the advertisement, entitled “Letter To Electors”, is available here. 

From that “Letter to Electors”:

Never in our Republic’s history has there been a President-apparent comparable to [the Orange Menace]. His inauguration would present a grave and continual threat to the Constitution, to domestic tranquility, and to international stability…

We place country before party in imploring you, our fellow Americans, to investigate and deliberate. We stand with you as you exercise your conscience and give profound consideration to the consequences of your vote. We affirm your right and your duty to do so free from intimidation, and urge you to cast your ballot for a person with the temperament, integrity and commitment to Constitutional principles necessary in a President.

In doing so, know that you enjoy the support of millions of Americans.

If you’re thinking about contributing, do it today. The Electoral College votes on Monday, December 19th.

How We Got Here & What To Do

It’s so strange, but I haven’t woken from this nightmare yet. And it’s so realistic, in one sense of that word.

But seriously, Charles Pierce of Esquire has written the best explanation I’ve seen of how we got to this bizarre, dangerous point in our history. It’s called “Russia’s Interference in This Election Should Not Be a Surprise: This kind of thing has been a long time coming”. 

I wish every adult would read it, because it was written for adults, the millions of Americans who are grown up enough and rational enough to perceive reality and then take responsibility for their own and other people’s lives.

If, for example, the 306 Republicans in the Electoral College read it, at least 37 of them might do their duty next Tuesday. They would vote for someone else and let the House of Representatives make the final decision. Otherwise, December 19, 2016 (it’s only one week away) will join the other dates in American history that live in infamy.

So please read Mr. Pierce’s article now. Here it is. It won’t take more than a few minutes.

As Mr. Pierce says, this is the starkest challenge to a free people that has arisen in our lifetimes. So what shall we do?

The first thing you might do is remind the Republican electors of their responsibility to defend the Constitution and protect the United States of America. One patriotic American has created a website with instructions on how to do exactly that. It’s called Direct Election. The site has lots of tools, including letters already addressed to 273 of the 306 Republican electors (the others were hard to locate).

I’m going to start mailing a letter myself, maybe something like this:

Dear …

If you are planning to vote for Mr. Trump on December 19th, or feel obligated to do so, please don’t.

Mr. Trump isn’t a real Republican. He’s not even a real Democrat. He is a dangerous, psychologically-damaged con man who must never become President of our great nation. 

I won’t ask you to vote for a specific person. But I do respectfully ask that you vote for someone other than Mr. Trump. By doing so, you will perform your solemn duty to protect the Constitution and the United States of America.

After all, the Electoral College was designed to forestall the election of a person unfit to be President. That includes anyone who puts his own financial interests or the interests of a foreign power ahead of ours. We need someone who loves America and is both willing and able to fulfill the responsibilities of the job. 

I respectfully submit that Mr. Trump is not such a man. The evidence, including his behavior since winning the election, is clear. You are now our only hope. Thirty-seven of you can let the House of Representatives choose a qualified person. More of you working together can determine who is President. Please vote for anyone else on December 19th.

Please note that any state laws that say an elector must vote a certain way are most likely unconstitutional. Furthermore, thousands of concerned citizens stand ready to pay for any legal fees or fines you might incur, and there are lawyers who have pledged to provide free legal services to any electors who face legal consequences for voting their conscience.

Thank you for reading this letter.

Sincerely yours, and God bless America, …

Assuming the Electoral College fails to do its duty next week, there are other things to do.

First, Timothy Snyder, the Housum Professor of History at Yale University and the author of Bloodlands: Europe Between Hitler and Stalin, offers a “Twenty-Point Guide to Defending Democracy Under a T—p Presidency”. The first item on his list is:

1. Do not obey in advance.

Much of the power of authoritarianism is freely given. In times like these, individuals think ahead about what a more repressive government will want, and then start to do it without being asked. You’ve already done this, haven’t you? Stop. Anticipatory obedience teaches authorities what is possible and accelerates unfreedom.

Second, Thomas Geoghagan, a Chicago labor lawyer and author, describes “Four Things We the People Can Do About Our Unjust Voting System and a President Trump”. Three of his four suggestions require legislative action. One would involve states with Democratic majorities agreeing to an interstate compact: 

This interstate compact … would be a quasi-constitution—a model for what the whole country should have. 

Such a compact might include, for example:

  • A ban on partisan redistricting of U.S. House and state legislature positions.
  • A right to healthcare.
  • A commitment to carry out their share of what the U.S. committed to in the Paris global warming accords.
  • A bill of rights for employees, including a right not to be terminated except for just cause.
  • A formula for a just level of funding for public education.
  • A comprehensive system of background checks for gun purchases.

Mr. Geoghagan concludes:

Since each of the above is an act that the state itself would be free to take, an interstate compact would not infringe on federal sovereignty —or require approval of Congress under Article I, section 10. 

Let one part of America, at least, be a city on a hill.