Month: March 2013

The Supreme Court will consider two cases relating to gay marriage this week.[1] The exact issues are still up in the air, so it is possible that the court will not directly address the question of whether or not gays have a constitutional right to marry. It would be nice to think that all of the justices will approach the case with an open mind, but apparently some are already pre-disposed. I’m talking about Justice Antonin Scalia who pretty clearly broadcasted his views this past fall at a book reading at the Conservative American Enterprise Institute. In response to a question about hard and easy cases he said: “The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state.” [2]

So, apparently for Scalia, individual rights protected under the Constitution are only those that were in existence in 1791, when the Bill of Rights was adopted. But doesn’t the Ninth Amendment seem to imply otherwise?

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.[3]

 

This seems to imply that certain rights, for example the right to marry, belong to the people to sort out as they please. But in Scalia’s view the “rights retained by the people” referenced in the Ninth Amendment are only those in existence when the Bill of Rights were ratified.

While the language of the Ninth Amendment seems to suggest otherwise, it is certainly not clear, so perhaps Scalia is right. It would have been wonderful had the drafters of the Ninth Amendment said that “other rights, meaning those currently known and developed in the future, … are retained by the people.” But alas they were not that clear.

But is there anything in the history of the drafting of the Ninth Amendment that can help us understand what the draftsman meant? Did they specifically limit “rights” to current rights, or did they consider that other rights might be developed by the people? Perhaps as they were debating the language of the Amendment they specifically said that the purpose of this amendment is to preserve every right, now known or potentially contemplated in the future. Let’s look at the development of the Ninth Amendment to see if there’s anything that can give us any insight into what rights the drafters were talking about.

During the Ratification debates in the states, a number of states ratified on the condition that a Bill of Rights be adopted. Some of those states submitted proposed amendments, and all were based on the idea that the powers of the national government should be limited.

The Virginia Ratifying convention included a detailed list of a proposed bill of rights, as well as a number of broad statements of principle, which addressed the apportionment of individual rights and government powers. The statements of principle clearly set out the idea that people should have braod rights, and the government power to inhibit those rights should be limited:

1st. That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity; among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.

 

When James Madison drafted a proposed Bill of Rights, he included a provision that explained that the listing of rights was not meant to otherwise limit the rights of the people.

The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.[4]

 

When Madison presented his proposed Amendments, he gave a lengthy speech to explain his underlying reasoning. He also described the purpose behind most of the provisions, including the nascent Ninth Amendment:

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the [language set out above.][5]

 

Through the political give and take in Congress we ended up with the Ninth Amendment we have today. But the purpose of the Ninth Amendment was, clearly and explicitly, to limit the power of government. It achieves this purpose by recognizing that the people have certain rights. It does not specifically delineate those rights, but notes that they are more than the specific rights set out in the Bill of Rights.

Scalia has said that he agrees that one purpose of the Constitution, and the Bill of Rights, is to limit the power of government. During oral argument for the Affordable Care Act, when discussing whether the individual mandate was allowable under the Necessary and Proper clause, Scalia said “The Federal Government is not supposed to be a government that has all powers, … [the idea was] that it’s supposed to be a government of limited power.”[6] But if we limit the rights of individuals to those rights in existence in 1791, as Scalia suggests, then aren’t individual rights limited? And if individual rights are limited, doesn’t that mean that the power of government to impose itself onto human affairs, can expand?

The thing is society changes over time.  It has changed in the past and it will continue to change in the future. And as society changes the condition of the humans that make up society also change. As the social environment changes, the way people behave and interact with each other also changes. People have the ability to do new and different things, because new and different things have become available. And as people acquire the ability to do new and different things, doesn’t that mean that people’s rights change as well?

But if society changes, behaviors change, and options and opportunities change, then rights must also develop or change over time. If rights are frozen, as Scalia suggests, then doesn’t the power of government expand? If you prevent the expansion of individual rights as society changes, don’t you allow for the expansion of government power into new areas of human behavior not considered by the drafters of the Bill of Rights? That seems to be the opposite of what Scalia has said he believes, and also the opposite of what appears to be the purpose behind the Ninth Amendment. If you want is to limit the power of Government in a changing society, isn’t the best way to do that by allowing the expansion of individual rights?

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[1] Hollingsworth v. Perry, U.S. Supreme Court, No. 12-144; and U.S. v. Windsor, U.S. Supreme Court, No. 12-307. 

[2]  This was at a reading of his new book at the American Enterprise Institute on October 5, 2012. See, http://www.cbsnews.com/8301-250_162-57526578/scalia-abortion-death-penalty-easy-cases/ (Emphasis added.) Note: Scalia does not allow taping of his events, so this record is from the CBS News web site. The site does not indicate the specific wording of the question he was asked.

[3] U.S. Const. Amend IX.

[4] Available on line at: http://www.usconstitution.net/madisonbor.html

[5] Id.

[6] National Federation of Independent Businesses, et al. v. Sebelius, 567 U.S. ___ , 132 S.Ct. 603, 181 L.Ed.2d 420 (2012). The audio transcript of the oral argument, where we can hear Scalia make this s available on the Supreme Court Web Site at http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-393

 

In two previous posts I described the growing bitterness between the parties and the impact that it has had on our politics.

So, you ask, what is your solution?

Just as there are many causes to poisonous partisanship, there are many possible solutions.

First, I think the most important thing to do is get past the idea that the fight is between good and bad, and that the other side is evil. This is the product of a simplistic, if not destructive, duality, and we need to get past it. One way to do this is to understand that there are not simply two solutions to every problem—a Democratic solution and a Republican solution, a right solution and a wrong solution—and realize that there are many different policy options, and the two parties are merely presenting two possible choices among many. As a result, one is not right and the other wrong. One may advance certain goals more than others, but that is not the same thing as right or wrong.

I think that ultimately the best way to do this is to create more parties, so that there are numerous voices in the public debate presenting numerous policy alternatives. That way people will know and understand that there are not simply two choices and that one is not necessarily good and the other necessarily bad. But this means more that creating an “independent” party or a “No-Labels” party. It means allowing parties with real policies to compete in elections. (I will describe what those parties might be below).

But this will take significant structural changes, which I will also describe below.

But in the meantime here are a couple of relatively easy fixes.

 

If the news media only did their job …..

One easy solution is for the media to stop presenting every issue as if it were a simple battle of Democratic policy versus Republican policy. I realize that this will require that the media, how shall I say this nicely, get their collective heads out of their collective asses. Do your job. Do some background research. Ask real questions. Stop either fawning or attacking. Want to know how it’s done? Watch the BBC, they seem to be able to do it.

Here’s an example. When you present an outlier against the consensus view, show it in a way that reflects this reality. Don’t, for example, have a global climate change denying politician on a show and pair him with an equally ill-informed climate change believing politician. It makes it look like the real battle is a simple partisan battle. Certainly have the denier on, but pair him with reputable scientist and let them show believable data.

Perhaps if the media made some effort to present issues with some level of complexity, and then said that there are many possible solutions, maybe that lesson would sink in. Maybe it could drain some of the rancor from the debate. They don’t have to become NOVA or PBS News Hour. They don’t have to present hour long analysis of issues, but they could give a serious topic more than 20 or 30 seconds. I realize that there are information sources out there that do go into great detail – numerous magazines and books – but even though their audience is greatly diminished, much of our national public policy debate is still influenced by the major network news programs. And with just a little effort they could impart some reason into the debate. 

The other changes are much more difficult, and probably require deep structural changes in our political and electoral system.

 

Term Limits

One possible solution is to institute term limits. The newly elected Representative in my Congressional District, Representative Andy Barr, has introduced legislation for a Constitutional Amendment limiting Senators and Congressmen to 12 years of service. I don’t support a strict term limit, and have proposed a modified type of term limit, where elected officials could serve no more than a specified number of consecutive terms, and then would have to sit out (or run for a different office) before running again. I posted an in January essay discussing this idea.

Either option would eliminate the incumbent advantage and increase the turn-over in Congress, which might increase the number of voices in politics. There is some possibility that with more competitive races around the country there would be less likelihood that big money would flood certain “key” races. This might help make campaigns a battle over real ideas and not simply a battle of competing sound-bites and nasty attack ads. But maybe not.

 

Partisan Gerrymandering

Eliminate partisan gerrymandering. The current Congress is the most rigidly partisan in history. This is due, in large measure, to the way politicians have effectively gerrymandered districts to ensure that both parties have reliable districts.  If districts were less ideologically uniform, and more politically diverse, politicians would have to behave more moderately in order to appeal to a broader electorate. They might also seriously debate real issues and rely less on poll tested talking points.

But this will only happen if we have changes at the state level. It’s interesting to look at the map of the presidential election, where Obama won handily, then look at the map of Congressional Districts, where Republicans maintain an advantage, and then look at the partisan map of some of the states that voted for Obama, like Ohio and Virginia. In both states Republicans dominate the state houses, even though both states voted for Obama by a fair margin.

The reason for this is that state level electoral districts do not necessarily need to be balanced by population. There was a case in the 1960’s called Reynolds v. Sims, 377 U.S. 533 (1964), where the Supreme Court said that all electoral districts needed to have roughly the same population. There was a near revolution in rural America, and subsequent Supreme Court cases have backed away a bit, and said that the states can vary this slightly to accommodate historic norms, meaning county lines. This means that in many states there are rural districts that have fewer people than urban districts, which means that in many states urban districts (which tend to vote for Democrats) are under-represented. This is why the state representative map of Ohio is almost totally red, with a few blue dots in the cities, while the state still votes for a Democratic president. So the first step in solving the gerrymandering mess is to strictly enforce the Supreme Court case of Reynolds v. Sims, which set out the principle of one man, one vote. This will increase the representation of urban areas and break the rural (read conservative) lock on many state legislatures. And then from there the apportionment of congressional districts will be somewhat fairer.  

The other solution, which I prefer, is to take districting out of the hands of politicians. A number of states have independent commissions that draw the state’s political districts. Iowa is the most famous, but recently California established a non-partisan commission. Perhaps it is time for a Constitutional Amendment to eliminate partisan districting, at both the state and the national levels.   

 

Increase the number of Representatives.

We currently have 435 Representatives. This number was set by Statute in 1913, when the U.S. population was about 95 million. At that rate there was one Representative for every 220,000 people. Now there is one Representative for about every 700,000 people. But the problem is that a number of very small states (Wyoming, Vermont and North Dakota) have populations much smaller than this, which means that the bigger states, like California, Texas and New York, end up having congressional districts with nearly one million residents.

The founders wanted the number of representatives to grow as the nation grew, and we should return to this idea. James Madison proposed that we have one representative for every 50,000 voters. That might have worked in colonial American, but with over 310,000,000 citizens, it would mean we would have a House or Representatives with over 6200 members. That would be crazy, but if we set the number at, for example, 300,000 we would have a congress with 1000 members. This might seem like a lot, but Great Britain, with a population less than a third of ours has over 600 members of the House of Commons. Or if it were 500,000 we would have a House with 620 or so members.

Increasing the number of representatives would do a number of things that should help ease the partisan divide. First, it would make the redistricting of states easier, and might create more balanced congressional districts. Clearly some very conservative districts would have very conservative representatives, and liberal districts liberal representatives. But I think it would increase the number of moderate office holders.

Second, this would mean that each Congressman would be from smaller districts, and would mean that it would be easier for members to actually meet their constituents. It would make it easier to run for Congress because each district would be small enough for a candidate to win through hard work (knocking on doors, networking, etc.), and not have to rely on television commercials, which cost lots of money and make fundraising a priority.   

Third, this would increase the number of voices in politics. That would increase the number of views on a problem. This might also make it easier for third party candidates to win an election. But this is not the main or best way to support third parties, which brings me to:

 

Third Parties

I think one of the best ways to get past the nasty head-to-head partisanship is through the presence of viable alternative parties. This might mean more than a single third party, but rather a number of smaller parties, as noted above.

I suspect that this might result in six smaller parties. Working from left to right, I would suspect that there would be a Peace/Green Party, a moderate liberal “social democrat” party, a Labor Party, then a moderate (main street Republican) party, a Christian Conservative Party, and a Libertarian Party. I suspect that the moderate liberal and moderate Republican parties would be the two larger parties, with the others commanding 10% or so of the electorate. This would mean each group would be able to present its views, without the need to dilute those views as is the case now in a large coalition party. This would also prevent the kinds of internal battles which from time to time bedevil the main parties (as is happening in the Republican Party).

I believe that if rational voices presented a wider variety of solutions to our public policy problems then every problem would not be presented as a simple either/or, Democrat/Republican, right/wrong choice. This would drain much of the rancor out of our political debate because the debate would be over problems and solutions, not right and wrong, good and bad.

But getting third parties would be very difficult. In order to gain legitimacy, a party must win public office. Elected officials have a platform and responsibilities, and their success helps support the ideas and values of the party.

But our current system is designed around two parties. One of the main contributors is the nature of our elections. Our elections are often referred to as first across the wire elections, where the candidate with the most votes wins. This has created a system where two parties each try to get 50% plus one vote. Smaller parties can’t garner this number of votes, and so don’t succeed.

Increasing the number of representatives, as suggested above, would increase the likelihood of more parties, but the reality is that with head to head and first across the wire elections it is difficult, if not impossible, for a minor party candidates to win an election.

The best way to ensure small parties is to have slate elections, where the public choses a number of candidates from a list, as opposed to one from a head to head choice of two. Most of us already do this in local elections, and most of the world does it in parliamentary elections, so it is not some untested new-fangled idea. In the early years of our nation, under the Articles of Confederation, most states elected their representatives to the Confederation on a slate ticket.

In a slate election there might be six or eight candidates, and the voter can chose any three. This would mean that a candidate with, for example, only 20% of the vote, might gain a seat, and with that seat the party would gain a voice in the debate, and those ideas would gain legitimacy.

This system would not work with the current number of Representatives because some states have only one Representative. But if we increased the number, as suggested above, even the smallest states would have at least two Representatives.

Let me use Kentucky as an example of how this would work. With one representative for every 500,000 citizens, Kentucky would have nine representatives. The state could then be broken up into three large electoral districts, and citizens would chose three representatives from a list of candidates. The larger parties would probably win one each, but it is possible that one of the third party candidates could get elected. In a district centered around Louisville, the third party candidate might be from a Labor party, while in a rural eastern Kentucky district the third party candidate might be from a Christian Conservative party.

  

I have only addressed these ideas in a cursory manner, and each deserves a great deal more analysis. All have advantages, as well as drawbacks, and all of that needs to be addressed. I will try to do this I some detail in the future.