Hypocrisy and More at the Supreme Court

My local paper, the Lexington Herald-Leader, published my op/ed on the Supreme Court decision upholding portions of President Trump’s travel ban. The article, set out below, deals with the hypocrisy of conservative Supreme Court Justices who frequently decry “legislating from the bench” and who did just that in re-writing Trump’s travel ban.

But that’s only part of the issue. What the Supreme Court did in upholding the ban is actually very common. The Court added a provision that said the ban only applied to travelers from the six listed countries who did not have a “bona fide relationship with a person or entity in the United States.” It did this under what is known as “equity jurisprudence.” When courts deal with an equitable remedy, like an injunction, they have the ability to do what they feel is fair.

It is based on such equitable powers that courts in the 1960’s and 1970’s did such things as desegregate schools, and mandate busing to achieve integration. It was these sorts of acts that conservatives labeled “legislating from the bench.”

When conservative Supreme Court nominees, like Neil Gorsuch, testify before the Senate and swear that they will never “legislate from the bench” they are fully aware of the 400 year history of equity jurisprudence. They know that many of the decisions from the past that conservatives hate were legitimate exercises of equity jurisprudence. And they know that they will be called on in the future to “do equity” and will do things like re-write laws, i.e. “legislate from the bench.” Yet they swear up and down that this is illegitimate and they will never ever ever do it. There is a word for people who say the exact opposite of what they know to be true, and it is not conservative. It is lie.

Supreme Court legislating from the bench on Trump travel ban

By Michael Coblenz

“Hey guys, let’s legislate from the bench!”

I wasn’t there, but it’s pretty clear that’s what Chief Justice John Roberts must’ve said when faced with President Donald Trump’s travel ban.

The travel ban, signed by Trump on March 6, banned most people from six predominantly Muslim countries from traveling to the United States. The original ban, signed with much fanfare on Jan. 27, was a blanket ban on immigrants, refugees or other travelers from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. But that was quickly struck down by a number of federal courts, based in part on Trump’s repeated statements that he wanted a “Muslim ban.”

Rather than appeal, the Trump administration drafted a new “ban” which was signed without much publicity. This “ban” was somewhat more nuanced: it didn’t include Iraq, it included provisions for a limited review, and it included only a limited, temporary suspension of refugees from certain countries.

The purported purpose of the ban was to protect the nation from potential terrorists. So, I should note briefly that there hasn’t been a single terrorist attack on American soil by an immigrant or traveler from any of the six listed countries. Six Iranians and six Sudanese have been convicted of plotting attacks, but none came to fruition.

While there have been a number of terrorist attacks in the U.S. over the years, since at least the first World Trade Center bombing in 1993, the vast majority of the terrorists (19) have come from Saudi Arabia, 14 have come from Pakistan and 11 from Egypt. But those are American allies, so…

In any event, Trump signed the second scaled-back travel ban, but it suffered the same fate in the courts, being struck down in both the Fourth and Ninth circuits. So it went to the Supreme Court, and on June 27 the court upheld portions of the ban. Well, sort of.

The Supreme Court held that the Trump administration could deny entry to anyone from the six listed countries who did not have a “bona fide relationship with a person or entity in the United States.” That seems reasonable enough. Such a relationship would imply some legitimacy. But here’s the thing, that limitation wasn’t in the executive order signed by Trump.

Where’d the court come up with this provision? Out of thin air, of course.

My entire adult life I’ve heard conservatives say that judges should simply interpret the law, and not “legislate from the bench.” During his confirmation hearing Chief Justice John Roberts said that the “role of the judge is limited, the judge is to decide the cases before them. They’re not to legislate. They’re not to execute the laws.”

Trump’s Supreme Court nominee Neil Gorsuch agreed with this idea in his confirmation hearings. Under the “Constitution, it is for this body (Congress), the people’s representatives, to make new laws, for the executive to ensure those laws are faithfully enforced, and for neutral and independent judges to apply the law in the people’s disputes. If judges were just secret legislators, declaring not what the law is but what they would like it to be, the very idea of a government by the people and for the people would be at risk.”

Right. Except when a Republican president needs a win.

Then the rules are different. Trump’s travel ban was restrictive and religious-based. But that’s not what Gorsuch, Roberts and the other conservatives on the court (Clarence Thomas and Samuel Alito) wanted it to be. They wanted it to be a win for Trump. And the only way for it to be a win for the president was for it to be limited and nuanced enough to survive a constitutional challenge.

So they took it upon themselves to create the law they wanted. They became legislators, and rewrote the law.

Read more here: http://www.kentucky.com/opinion/op-ed/article159801369.html#storylink=cpy





Where to Find Trump’s America

President Trump’s inaugural address offered a stark vision of a devastated nation. Trump spoke of economic collapse in the form of “rusted-out factories scattered like tombstones across the landscape of our nation” and a veritable wave of “crime and gangs and drugs that have stolen too many lives and robbed our country of so much unrealized potential.”  He said that with his inauguration “this American carnage stops right here.”

Many critics called it shockingly bleak. Conservative columnist George Will called it “the most dreadful inaugural address in history.”

Trump’s address to Congress was less graphic, but no less bleak.

Commentators, pundits, and opposing politicians noted that the reality in America is nowhere near as dark as Trump suggested. Crime has decreased steadily since the early 1990’s. There are clearly weaknesses in the American economy, but the United States has one of the most robust economies in the world.

This raises a question: Is Trump’s vision of America related to a real place? Where can you find Trump’s America?

The answer is on television. Television offers a distressingly bleak view of humanity and the state of the nation. Cable and network news programs are awash in crime and mayhem. The adage is “if it bleeds it leads.” Most of the air time on twenty-four hour cable news is devoted to disasters and crime. A study by George Washington University Professor of journalism Nikki Usher found that the news media has over-reported the prevalence of crime since the 1970’s, and this has gotten worse because of the immediacy of cable and internet news which focuses on “breaking news” like disasters and gruesome crimes.

Local television news is no better. A Pew Research study found that crime, and a category labeled “accidents and disasters,” account for nearly half of all local news.

Even with the rise of on-line news the majority of Americans – fully 57% – still get most of their news from television. Most people get news from a variety of sources, but older people consumes far more television than the young. Among those over 65, according to Pew Research, 85% watch television news, 48% read the newspaper, and 20% get news on-line. Among millennials, 27% watch television news and 50% get most of their news on-line. Older people rely primarily on television for their view of the world, and since older correlates with conservative it means that conservatives rely on television for news.

The reliance on television means that the public has an overwhelmingly bleak view of the state of the nation, but it’s a view separate from reality. The violent crime rate in the country has been on a steady decline since the early 1990’s. The crime rate in 2010 was roughly a quarter of the rate in 1993. Despite this decrease, since 2003 over 60% of Americans have consistently said that there is more crime than a year ago. In 2015 nearly 60% of Americans said that crime was a very serious problem. Among Trump supporters, who tend to skew older and whiter, 78% said that crime has gotten worse since 2008. Only 37% of liberals believe the same thing.

It shouldn’t be surprising that the 60% of Americans who say that crime is out of control is nearly the same as the 57% who get most of their news from television. These people have this skewed view because it’s what they see on TV.

You know who else watches a lot of television? Donald Trump. Trump spends his nights watching cable news, and this is clearly where he gets the idea that the America economy is cratering and crime is out of control.

So when Trump talked about “American carnage” he was channeling what he sees on television, and speaking directly to the millions of Americans who get most of their news from television. It may not represent reality, but it is what they see on the TV.


Fixing American Democracy


The story of the 2016 election was dissatisfaction with the status quo and the state of the nation. The media focused on the idea that the Republican candidate Donald Trump was a “change” candidate. Clearly he offered a change from the current administration and its chosen successor, Democrat Hillary Clinton, but he was also an outsider to the Republican Party and in many ways was repudiated his own Party.

There was also much broader dissatisfaction with politics, as shown by the success of Vermont Senator Bernie Sanders within the Democratic Party. But it was really shown by the near record low voter turn-out. Barely 52% of eligible voters went to the polls. Nearly half the voters simply stayed away, many out of disgust with the whole thing.

There seems to be a broad consensus that things aren’t working. The government isn’t operating properly, it’s certainly not doing enough to help the economy, and the process in which we chose our elected representatives is clearly broken. The public is sick of politics, and really sick of politicians. We see this in the record low turn-out, the success of Trump and Sanders, and the interest in Third Party candidates. People clearly want something different.

Dissatisfaction with American Politics

The nation faces enormous challenges and government doesn’t seem to be working to help solve them. The public has come to believe that our public institutions are no longer able to deal with the problems that face the nation. They also believe they no longer have any say in government. They feel like the government and the politicians are not listening to them.

Take the economy as a particularly relevant example. Economic anxiety was probably the dominant theme of the election, revealed mostly in hindsight. Many of the people who voted for Trump, particularly in the industrial heartland from Pennsylvania across the Great Lakes to Wisconsin, did so because they feel the effects of a changing economy, they didn’t think Washington cared,    and were looking for things to change.

A few years ago I heard a woman at a Tea Party rally say about the economy, “I just want to know what went wrong, and who to blame.” It’s a valid question. Democrats say it’s a complex issue, and so they don’t really have a simple or compelling answer. They talk about automation, the talk about income inequality, raising the minimum wage, or making child care and college affordable. All may be valid policy approaches but they don’t directly address the underlying economic anxiety of millions of working class Americans, and they don’t explain “what went wrong.”

Republicans have an answer that’s both highly partisan and very simplistic. Republicans say that what went wrong is that liberal policies destroyed the American economy. Welfare stripped the initiative from the American worker. Unions raised the cost of labor. Needless regulation hamstrings business. All combine to hobble the economy.

I honestly believe that the main reason that Democrats have been on a multi-year losing streak because they don’t have an answer to the woman’s question, and they never try to counter this Republican narrative. The result is that the Republican narrative about the economy dominates the political debate.

Democrats need to understand that even many Trump supporters know that the Republican theory is nonsense, but they also know that Democrats never even bothered to address the issue which reinforced the idea that Democrats are out of touch and don’t understand the problems facing average Americans.

This essay is not an attempt to fix the Democratic party, but to fix the democratic political system so that our politicians and our government does a better job of addressing the publics concerns and is better able to find solutions to fix the problems facing the nation.

But first, in order to fix American democracy we need to first address the woman’s question, we need to explain what went wrong with the American economy. Then we need to look at how politicians and public institutions addressed, or failed to address, the changing economy.

What went wrong with the American economy?

The American economy and the world economy are in the middle of a seismic transformation, brought about by three inter-related trends: automation, globalization, and the rise of industrial China.

Here’s a fact that few people know: the United States currently produces more manufactured goods than at any time in history. But the other reality is that we’re doing this with a fraction of the labor that used to be employed in manufacturing. This means that good news for corporations doesn’t equate to good news for working class Americans. The reason for this divergence is the rise of computers and industrial robots. Automated factories produce goods to a higher quality and do it faster and cheaper then when factories relied upon human labor. Robots work around the clock, and don’t ask for days off. This has resulted in record corporate profits, and declining manufacturing employment and stagnant wages for workers.

At the same time there has been an explosion of international trade. The development of container ships made international shipping easy. Computers allowed easy tracking of goods from far flung manufacturers to consumers across the world. And a glut of ships and low oil prices have driven down the cost of transportation even further in recent years. Now U.S. manufacturers compete with low cost producers from around the world.

The biggest player in international production and manufacturing is now China. The impact of China is not simply its size as an industrial producer, but its rapid rise. In 1980, China accounted for a dismal 4% of the world’s economy, even though it had approximately 20% of the world’s population. It was a largely rural and struggling communist country. But things began to change in 1978 the then Chinese Premier, Deng Xiaoping, allowed the private ownership of property and the private ownership of businesses, including manufacturing companies. In 1980 the U.S., with 6% of the world’s population, accounted for roughly 22% of the world’s economy. At first these Chinese companies made low cost goods, but as business grew the government got involved. In the late 1980’s the Chinese government made the decision to turn the nation into an industrial manufacturer. The government built factories, built transportation and ports, coordinated nationwide industrialization, and assisted in international trade. As a result China boomed. China is now the world’s largest manufacturing nation (the U.S. is second) and accounts for roughly 16% of the world’s economy.  Overall the Chinese economy is nearly as large as the American economy.

There’s no doubt that the rise of China as a manufacturing behemoth has had a dramatic impact on the American economy, and that has been felt most severely by the manufacturing sector. It is very difficult for U.S. manufacturers to compete with lower cost Chinese imports, and for US workers to compete with lower wage Chinese workers.

The rise of industrial China occurred at the same time that automation transformed the American economy. The result is that most politicians lambast China, but fail to address the other (read real) causes of the transformation of the economy. I find it deeply troubling that very few politician talk about these changes. Plenty talk about trade, but few talk about automation. This was particularly true during the just completed election. Donald Trump touched on these issues obliquely when he talked about bad trade deals with China, but he never mentioned automation or other issues impacting the economy. But at least he did touch, ever so slightly, on it. Democrats didn’t even bother. As a result they lost.

How can politicians deal with a problem when they seem largely unaware of the issue? They can’t, and the public gets it. Voters might not know all the details of the changing world economy. (I certainly don’t. What I’ve set out here is an overly broad and highly simplistic overview.) But they know that politicians aren’t discussing it in a meaningful way. All that politicians want to do is fight about it. So while Republicans have a theory, most people understand that what they say is mainly about their fight with Democrats, and not a realistic solution. As a result large numbers of voters chose third party candidates or simply stayed home on Election Day.

Why Don’t Politicians Address Real Issues?

I understand why Republicans don’t want to discuss issues like automation and its impact on the economy. If you talk about how automation has changed industrial employment, or how international trade has impacted business, it puts the lie to their claim that the sole cause of our economic problems are Democratic policies.

What I don’t understand is why Democrats don’t talk about how the world economy has changed. I think the main reason is that far too many politicians are idiots. They’re driven by ambition, not intellect. They don’t think deeply about any issue much less an issue as complex as the economy. Of course this applies to Republicans as well as Democrats. I also think that many Democrats actually believe that Republicans are right about the economy. That is why they focus on issues like fairness and equality.

But the real reason that politicians don’t discuss the economy in any detail is the nature of American politics. Our system creates a disincentive to deep thought or detailed policy analysis. Our first past the wire, “winner-take-all” elections allow one candidate to win simply be demeaning their opponent, which means that a politician who talks in detail about an issue provides an opponent plenty of ammunition for an attack. As a result, a rational politician simply doesn’t discuss anything in any detail.

The nature of our elections makes our politics silly and simplistic. Unfortunately this is exacerbated by the way that the “news media” now deals with politics. They seldom delve deeply into issues, and instead focus on personality, “character” issues, and “horse race” issues like polls and fund raising. (I realize that there are policy journals that discuss many issues in great detail, but virtually none of this filters up to the larger broadcast media outlets.)

For evidence of this, look no further than the recently completed election. It wasn’t just a presidential election; every seat in the House of Representatives and a third of the Senate was at stake, but the amount of media attention to down-ballot races was trivial. And there was very little talk about substantive issues like the changing world economy. Yes there was some, but the topics that dominated the campaign were Hillary Clinton’s emails and Donald Trump’s treatment of women. I realize that both are “character” issues, and I don’t expect dissertation length discussions of substantive issues like the economy, but in a rational world substance would at least be on par with whether or not Donald Trump every grabbed a woman’s crotch.

Economic anxiety is roiling American politics, and has been for years. It sent the Tea Party into the streets in 2010 and sent Occupy Wall Street into the streets in 2011. It has been simmering ever since, and now seems at a boiling point. In poll after poll the economy was the one thing that both Democrats and Republicans agreed was the most important issue facing the nation. And yet the “media” seemed incapable of addressing the issue in a serious manner. In three Presidential debates no one bothered to ask the central question about the economy. No moderate asked: “Mr. Trump (or Secretary Clinton) in your opinion, what accounts for the dramatic change in the American economy since the end of World War Two?” Or a simple follow up: “How do your policies address the fact that automation accounts for the massive decrease in the manufacturing workforce?”

So the first step in fixing American politics is to get the media interested in, and able to, discuss substantive issues. I’m not suggesting that the nightly news be turned into a policy debate, but that equal time be given to substance as to “character” issues. The complete lack of substantive focus on the most important issue in the election, and frankly in the nation since the 1980’s, is shameful.

The news media will argue that the problem is circular. They’ll say that they don’t report on these issues because politicians don’t talk about them. But politicians don’t talk about these issues unless the media asks. The only way we’ll get out of this is if someone jumps first. And since there’s no incentive for politicians to talk about hard issues, I think it will have to be the media.

But the problem is not just the failure of the media. The real problem is the nature of our political process, a process that actually punishes politicians for addressing issues in a serious manner. In my view the best way to get politicians to talk about issues is to remove the ability to win through destruction. I believe that the best way to do that is by changing our system of elections to allow viable third parties to compete in elections and win seats in Congress. The way to do that is to repeal a 1968 law that requires single seat congressional districts, and go back to the system that existed in this country from the nation’s founding, which allowed states to determine their own method of electing Representatives Under this system some states chose slate elections, where the entire delegation ran statewide, others used single seat districts like we have today, and others used multi-seat districts. The use of slate or multi-seat districts would effectively eliminate the ability of a candidate to win simply by tarnishing an opponent. That would significantly change the nature of our elections. This system would also allow third parties to develop, since a candidate can win a seat in Congress with less than 50% of the vote. Third parties would force candidates to expand their rhetoric since they could no longer win through demonization. They would be forced to address the issues facing the nation, and forced to explain how they plan to deal with those issues. Once politicians start talking about issues in a substantive manner then the media will report of the issues and the various proposed solutions in a substantive manner. And that will be the first step in repairing American Democracy.

Reviving American Democracy

The second step in fixing American democracy is finding a way to deal with the deep political hostility in the country. There is no doubt that this hostility has grown so extreme that very little gets done in Washington. (Unfortunately many state capitals are becoming equally partisan and dysfunctional.) According to recent studies, Congress has grown dramatically less effective, with fewer and fewer bills being passed. As one example of the partisan dysfunction at the end of the Obama administration there was a record number of judicial vacancies on the Federal bench. This is not just Supreme Court justices and Appeals Court Judges, but also District Court trial judges where are generally non-controversial. But in today’s hyper-partisan atmosphere even they are subject to bitter disputes.

Political dysfunction in Washington is a direct result of the increased partisanship in the nation as a whole. A recent Pew Research study found that partisanship has been growing deeper and more intense over the last decade or so. It’s now to the point where many people actually fear the other side. According to the Pew study 49% or Republicans said they were “afraid” of the Democratic Party, and 55% of Democrats felt the same way about the Republican Party. Similarly, 45% of Republicans say that the policies of the Democratic Party are a threat to the nation, and 41% of Democrats feel the same way about the Republican Party.

There are many reasons for this increase in partisan hostility. One cause is certainly the rise of a partisan media. The Pew study notes that these numbers began to diverge dramatically starting in the mid 1990’s. Conservative talk radio became a national phenomenon in the late 1980’s, with the repeal of the “Fairness Doctrine,” and Fox News began broadcasting in the mid 1990’s. Both relentlessly attack Democratic politicians and liberal policies, which undoubtedly has hardened many conservative’s views of liberals. And as conservatives started to paint them as a danger to the nation, liberals began to feel much the same way about conservatives and the Republican Party. Today we have Fox News on the right, which paints a scary picture of Democrats, and MSNBC on the left, which paints and equally bleak view of Republicans.

Another cause of the deep partisan divide is the rise of “social media” websites like Facebook and Twitter, which allow users to broadcast their views to friends, family, and those connected with friends and family. It is well known that people have a tendency on these sites to congregate with other like-minded people. It has gained the name of “homophily” or the tendency to primarily associate with people like yourself. There is nothing inherently wrong with this, but as social media has become more pervasive and as people get more of their news from social media, people tend to get only news that conforms to their preconceived political views. Liberals tend to read news stories shared by other liberals, thus reinforcing their shared leanings and biases, and the same holds true for conservatives.

All of these are contributing factors to the growing partisan divide. But the main cause of the divide is the two parties themselves. Not the policies or the tactics of the parties, but the reality that we have only two major political parties. Because we have only two major political parties ever issue in political life (and far too many in civil and social life as well) get framed as a fight between left and right, liberal and conservative, Democrat and Republican. If we had more than two parties then every issue couldn’t be bifurcated and place in the false dichotomy of left versus right.

Kill the Two Party System

So the solution to all of this, the political death match between Democrats and Republicans, the national inability to seriously address problems, is actually quite simple. Kill the two party system. I’m not talking about getting rid of Democrats and Republicans, not at all. I’m talking about changing the system so that we have more than Democrats and Republicans. I’m talking about change the system to allow more third party participation in American politics.

Once upon a time we had viable third parties – Whigs, Abolitionists, Free Soil, Progressives – and once upon a time as the economy or social conditions changed, the parties changed. Politics changed with changing social and economic conditions. Now we have a rigid two party system and this no longer happens. The two parties have a lock on politics and on political discourse, and unfortunately they are frozen in time. The result is that it is nearly impossible new ideas to advance and get taken seriously. The public senses this, and they’re sick of it. This is why they flocked to “outsider” candidates like Bernie Sanders and Donald Trump, and partially explains why Trump won. Trump did not talk like a politician, and it seemed like a breath of fresh air. The public hates the current system and they want to smash it with a sledge hammer. And Trump is that sledge hammer.

There are many reasons for the lock that Democrats and Republicans have on politics. First, most states have policies that favor the two parties, policies that were written by members of those two parties. Many states make it much easier for a Democrat or a Republican to get on the ballot than minor party candidates. Many states, and the Federal government, have a check-off box on the tax return to donate a couple of dollars to either the Democratic Party or the Republican Party. In many states the parties have a great deal of control over the actual elections. And third party candidates are routinely excluded from candidate forums. All create a major disadvantage for third parties and their candidates.

But the main culprit for the two party lock is the Uniform districts Act of 1968. It was enacted as a reforms after the Voting Rights act of 1965, but it has long outlived its usefulness. From the nation’s beginning until 1968, each state had the ability to determine how to select its Representatives. There were three common systems. A number of states had single seat districts, like we all have today. So a state with eight Representatives had eight single seat districts. Some states had “slate” or “at large” elections for all of their Representatives. So a state with the same eight representatives would have a state-wide election with fifteen or twenty candidates, and the eight with the most votes would be elected to Congress. (Many cities elect some or all of their council-members this way.) And a few states had “multi-seat” districts, where each district had two or three Representatives. So the state with eight Representatives might have four two-seat districts. In those races there may be four or five main candidates in each district and the two that received the most votes would be elected.

We had viable third parties in this country from our founding until the late 1960’s, and it was because we did not have solely single seat districts. Slate elections or multi-seat districts allow third parties, or minor parties, to exist and thrive. The reason may not be immediately obvious, so let me explain.

In our current “winner take all” congressional elections, a candidate needs to cobble together just over 50% of the vote to win. This favors large coalition parties that can “represent” broad interests. But in a slate election, or a multi-seat district, a person can get elected with less than 50% of the vote. In some cases they can get elected with barely 10% of the vote. In a multi-seat district, a person can also get elected with significantly less than 50% of the vote, and in a three seat district a person may get elected with barely 10% of the vote. Historically this allowed minor parties to start small and gain a few seats in areas that were amenable to their message. Once a party gains seats in legislative bodies at both the state and national level, the media and the public starts to take the party and its ideas seriously. This is how the Whig Party developed on the frontier in what is now Ohio and Indiana. It is how the Republican Party started and grew to prominence in Illinois and Iowa, and how the Progressives developed in Wisconsin and Minnesota.

Imagine the impact on the political debate when every issue is not simply a fight between Democrats and Republicans. I believe that introducing new parties and new ideas would dramatically change the tone of political discourse in this country.

In my dream proposal all Congressional districts would become multi-seat districts, with either two or three elected Representatives from each district.

This would have a number of positive benefits for the American political system. First it would allow small party candidates to gain seats in Congress, which would help introduce new people, new parties, and new ideas into the public discourse.

Second, and perhaps most important, it would change the way elections are conducted. Currently a candidate can win by simply destroying their opponent and driving down their approval and minimizing their voter turn-out. This simply would not work in a multi-candidate election. Sliming an opponent won’t work because there are plenty of other options. This would force candidates to run on something other than vilification of the other side. Some candidates might even run on ideas.

A third benefit of multi-seat districts is that they are more democratic. Currently a candidate can win with one vote more than fifty percent of the vote. That means that nearly half the people will feel, in some regards that they are unrepresented in Congress. But if, for example, there are two Representatives from a district far more people will have voted for a successful candidate and will feel represented. Imagine, for example, that in a two seat district the winner receives 50% of the vote, and the second place candidate receives 30% of the vote. The second place candidate would still gain a seat. This would mean that 80% of the voters would have voted from one of the districts two representatives. In a three seat district even more people will feel represented.

Multi-seat districts will also eliminate the power of Gerrymandering. In the 2016 election Republicans received 49.9 percent of the votes for Congress, yet gained 55.2 percent of the seats. In both 1996 and 2012 Democrats received a majority of the votes cast for members of Congress, but in both years gained less than a majority of the seats. The reason is that Congressional districts are heavily gerrymandered, or drawn to ensure a partisan advantage to one party over the other. If there are more than one Representative from each district it will make far less sense to creatively draw Congressional Districts.

This would help introduce new parties and new ideas into American politics, but it wouldn’t eliminate the Democratic or the Republican Party. Let me clearly state that this is not a plan to destroy either party, but simply a system that would allow more parties to participate in our political process. I suspect that under my plan both the Democratic and the Republican Parties would remain major parties. This is because even though House races would no longer be simple head-to-head elections, both the Senate and the Presidency would still be a contest between major candidates.

Restore Representative Democracy

While I think this will have a significant impact on politics and government, it is only part of what I think would help transform the American political system. The other part of the problem is that our members of Congress are truly out of touch with their political districts. This is one of the most common complaints among voters. And with every House member representing over 700,000 people it is difficult to see how they can truly be in touch with a significant number of their constituents.

This was not always the case, and was clearly not what the Framers intended. In the First Congress there was one Representative for every 33,000 citizens. James Madison’s first proposed Constitutional amendment would have set the number of Representatives at one for every 50,000 citizens. Throughout history the number of Representatives grew as the population increased. In the First Congress there were 59 Representatives. (It grew to 64 when Rhode Island and North Carolina ratified the Constitution.) This grew continually over the years, until 1920, when the number was set at 435. In 1920 each Member represented roughly 200,000 people. Since then the number of Members of the House has remained constant, while the population of the country has more than tripled. Today each Member represents just over 710,000 people.

Quite simply the United States Congress is no longer effectively representative. The United States is a “Republic” which is the system of government where elected representatives manage the affairs of the government for the people. This is nearly impossible when each Representative must somehow effectively manage the interests of nearly three-quarter of a million people. In Canada there is one elected representative for every 110,000 people. In England each Member of the House of Commons represents roughly 100,000 people. In Australia each member of the Australian House of Representatives represents roughly 155,000 people.

When compared to the other major English speaking democracies it’s clear that the U.S. is not very “democratic.” While I like Madison’s proposal, setting the number of Representatives at one for every 50,000 people would swell our Congress to over 6000 members, which would be unwieldly. Setting it at roughly the same ratio as England or Canada would increase it to 3000 members. But expanding it to one member for every 500,000 people would only increase it to 640 members, which is actually smaller than the 650 member British House of Commons.

Increasing the number of members of Congress would not only make the body more representative, but it would also make it easier to have multi-seat districts. Under this plan states would increase their members of Congress, but in proportion to their population, so no state would gain a proportional advantage. A state like Kentucky, with roughly 4.5 million people, would increase from 6 representatives currently to 9 representatives. This would allow the state to create four multi-seat districts, three with two seats, and one with three seats. Or alternatively three districts with three seats.


Pretty much everyone is sick of politics and they want to change the system. Many people talk about “changing” Washington. The reality is that we will only change Washington, if we fundamentally change the system. And that is what I am proposing. But I am not proposing some radical new idea. I am actually proposing a time-tested old idea. It may sounds strange and extreme, but it is actually the system we had for most of our history. To same American democracy we need to revive multi-seat districts and allow the House to once again grow with the population.

Six Simple Steps to Save American Democracy*

(*Simple to state, but probably not so simple to implement.)

  1. Reform Elections to Create Viable Third Parties

More parties will mean more voices, more ideas, and hopefully a more engaged public. It will also mean an end to the Democrat versus Republican death match that’s killing politics, strangling civic life, and endangering the nation.

We had viable third parties throughout American history because we had a different system to elect our Representatives. From the nation’s founding until 1968, each state could choose their own system to elect members of Congress. Some had slate elections where every candidate ran state wide, some had multi-seat districts, and many others had single seat districts like we have to day. Slate elections and multi-seat districts allow a candidate with as little as 10% support to get elected, and this allowed third parties to win elections, go to Congress and gain a voice on the national stage. It is time to return to this time tested system.

  1. Modified Term Limits

Congress has an approval rate of less than ten-percent, yet over ninety-percent of Congressmen win re-election. The reason is that incumbency creates invaluable name recognition and access to money. Many people support term limits as a way to change this, but term limits have problems of their own. Inexperienced members of Congress will have to rely on staff, bureaucrats, and outside experts (read lobbyists) to understand complex issues. This will shift power from elected representatives to un-elected insiders or self-interested outsiders.

The better solution is modified term limits, limiting not the total number of terms but the number of consecutive terms. Senators, for example, could serve only two consecutive terms, and Representatives only five consecutive terms. If they wanted to run for re-election later they could, but as a challenger not an incumbent.

  1. Right to Vote Amendment

Believe it or not, there is no constitutionally guaranteed right to vote. Roughly a quarter of the Constitution is devoted elections, yet conservative constitutionalist justices on the Supreme Court say there is no right to vote because the right itself isn’t explicitly set out in the Constitution. This, as Donald Trump would tweet, is “bad!”

A simple right to vote amendment would give voters the right to challenge laws limiting access to polls, and diluting representation through Gerrymandering. This would go a long way toward stopping state politicians from enacting petty laws to disenfranchise voters.

  1. Congressional Reapportionment

Do you think your Representative is “out of touch with the District?” Of course he is. (And 80% are male, so I stand by my sexist pronoun.) In the first Congress there was one Representative for every 45,000 people. In 1920 there was one for every 200,000 people. Today there is one for every 750,000 people. Of course they are out of touch.

James Madison, the chief author of the Constitution, proposed a Constitutional amendment setting it at one representative for every 50,000 people. If this had passed, the House of Representatives would now have over 6000 members, which would be a bit much. But if there was on for every 500,000 people the House would have roughly 610 members. This is more than we have now, but it is in line with every other major democracy in the world. Under our current system our Representatives are far too disconnected from the people they, which makes a mockery of the idea that we are a representative democracy.

  1. National Popular Vote for President

The President is ostensibly supposed to represent all of the people, and so should be elected that way by a simple majority vote. Under the current system the smaller states exert an outsized influence on Presidential elections. Small states already have an outsized influence in the Senate, with the least populous state Wyoming, having the same two Senators as California, the most populous. The set-up of the Electoral College gives them added weight in Presidential elections, allowing them to double dip, and this is inherently undemocratic.

The Electoral College was a compromise cobbled together by the Framers to ameliorate the concerns of the Slave States. It is antiquated and convoluted, and should be abolished.

  1. Multi-Day Voting

Voting should be easy, with as few impediments as possible. Having elections on a work day with limited hours makes it difficult for some people to vote. We should enact a national system that ensures that everyone has an easy access to the polls. Many states allow early voting a week or two before the official “election day.” With modern computer technology this is easy to do, and it should be the norm across the nation. A 55% voter turn-out for one of the most monumental Presidential elections in decades should be a national embarrassment. A 60% voter turn-out should be the minimum, not the maximum.

With these simple steps America will look younger, feel better, and lose those extra inches around the waist. And more importantly we will once again be a functioning democracy.


Trump, Sanders, and The End of the Two Party System

Bernie making a pointTrump making a point

Bernie Sanders and Donald Trump have a lot more in common than being loud-mouthed New Yorkers. Both are outsiders. Trump was never part of the Republican establishment. He was a registered Democrat for most of his life, and became a Republican in 2012. Sanders calls himself a “Democratic Socialist” but has held office as an Independent, as Mayor of Burlington, Vermont (1981 to 1990), as a Congressman (1991 to 2005), and as the Senator (2006 to 2015). In 2015 he changed his identification to Democrat to run for President.

Both Trump and Sanders are now leading candidates for President in parties that they both once rejected. This indicates the erosion of power of the parties, as well as a loss of support by rank and file for what the parties stand for. The success of both Trump and Sanders reflect a widespread disgust with government, politics, politicians, and the two major parties. Trump and Sanders represent the beginning of the end of the Democrats and Republicans as dominant political parties.

People on both the left and right are fed up with the current political system, though for vastly different reasons. Conservatives, for the most part, are angry that Republican politicians have been unable to stop Obama. Their fury over Obamacare spurred the creation of the Tea Party. Disaffected conservatives took to the streets in outrage, as much at their own party as with Obama. Conservatives are also angry that Republicans campaign on promises, like defunding Plan Parenthood, but never follow through. Many conservatives are sick of Republicans, but that doesn’t mean they’ll vote for a Democrat. They’re expressing their disdain by embracing Trump.

Liberals are angry that Democrats haven’t been able to change what they see as a rigged system that allows corporations to dominate government. They wanted to see bankers go to jail after the crash of 2008. They’re furious about Citizen’s United, which they see as allowing corporations to buy elections. And they’re angry at Democratic politicians (like Hilary Clinton) for being too cozy with Wall Street. That’s why many are embracing the boisterously anti-Wall Street Sanders.

Despite this dissension in the ranks, the parties are able to maintain impressive party loyalty in the halls of Congress. Party line votes are more common than they’ve ever been. But this only deeps the public disdain. According to recent surveys only about 16% of the public approves of Congress. And while the public broadly blames Republicans more than Democrats for the gridlock in Washington, both parties are widely reviled: 71% of the public has a negative view of Republicans and 65% disapprove of the Democrats.

People are disgusted with politics. But what does a disaffected liberal or conservative do? A conservative isn’t going to vote for a Democrat no matter how disgusted he is with his own party. The same holds true for a disillusioned liberal. You may be furious at Obama for not taking on the big banks, or forcing through gun control legislation, but you’re not going to vote for Ted Cruz. So, to a certain extent, the parties have a captive audience, and they know it. Or at least they think so.

Voters can respond in a couple of ways. The first is to stay away, and not vote. Off year elections have dismal turn-out, typically around 25% of eligible voters. This isn’t the sign of an engaged or enthusiastic electorate, and isn’t a good sign for a democracy. A second common response is to reject either party. According to a Pew Research Report, “Independent” is the fasted growing political identification among voters, and identification with either Democrats or Republicans is at an all-time low. In 2014 32% of respondents said they were Democrats, 23% were Republican, and 39% were independent. A third response is to vote for outsiders, like Sanders or Trump.

A fourth option is to look for alternatives. According to a recent Gallup Poll, 58% of respondents would like additional political parties. Of course there are other parties out there. There’s a Green Party that advocates for environmental issues, a Libertarian Party, and even a Reform Party that advocates for compromise and dialogue in politics. But these parties do poorly because most people, even if they support the underlying policies of the party, don’t want to throw their vote away.

If the public is disgusted with politicians, the parties, and politics as usual, why don’t third parties do better? One major reason is that the media doesn’t take them seriously, so third party politicians are rarely on the news or talk shows. And they are not taken seriously because they don’t win elections. So in order for the media and the public to take minor parties seriously, candidates from those parties have to win elections. But they don’t. If the public is so disgusted with politics and desperate for alternatives, why haven’t third party candidates won any significant elections?

The main reason is that most of our elections are for a single seat in a contested “winner-take-all” election. There is only one President, one Senator, and in each Congressional district only one Representative. In these types of elections a candidate must pull together a winning coalition of a majority of the voter, which typically means just over 50%. And this favors a two-party system where each party has the support of roughly half the electorate and then tries to convince a few extra voters to choose their candidate.

This system creates broad coalitions that often have little in common beyond disdain for the other side. Business interests, for example, are often at odds with religious conservatives, yet they coexist within the Republican Party. Labor and environmentalists are often deeply hostile to each other, yet both coexist within the Democratic Party. The current system ensures that some party members are always unhappy.

The turmoil of the Presidential campaigns indicates deep trouble within both parties. There appears to be a four-sided civil war in the Republican Party, between the “establishment” (represented by Bush, Kasich, and Rubio), the Christian conservatives (Cruz and Carson), the Libertarians (Rand Paul) and now the populist outsider (Donald Trump). The Democrats are also engaged in an internecine conflict between the establishment (Clinton) and the left (Bernie Sanders). But there is also a great deal of dissatisfaction on the right of the Democratic Party. A recent survey found that 20% or registered Democrats would seriously consider supporting Trump over a Democratic candidate.

The parties are on shaky ground, and Trump and Sanders are earthquakes. It appears that we are an election cycle or two away from the implosion of both parties. The rise of social media shows that people connect around issues and not necessarily political parties. Social media was used extensively across the Middle East in the protests that became known as the Arab Spring. And in the United States, events like Occupy Wall Street show that social media can be used to promote ideas and engage people outside of the normal party structure. Increasingly young people don’t need the parties. They’re used to having options and choices, and the two parties present an arbitrary and largely divisive choice.

This means that the parties are increasingly irrelevant. Their days are numbered: they just don’t know it yet. Change is coming, and the parties need to figure out how to embrace it. One idea, which I have written about elsewhere, is to change the system to allow third parties to participate in a meaningful way. This will give people more choices, which they say they want, and it may increase the public’s interest in politics. There are undoubtedly other things that the parties can do, but they better do something, or they risk getting swept away.

The Law of the Land

Kim DavisThe Kim Davis saga has exposed a shocking misunderstanding of how the American legal system works. Congressman Thomas Massie of the 4th District of Kentucky said, “When Kim Davis refused to issue marriage licenses, did she break a state law or a federal law? If you think it’s a federal law, who wrote it? If it’s a state law, who wrote it?” The implication is that courts, including the Supreme Court, don’t make laws. This is incorrect. The United States has a common law legal system in which judges frequently make laws.

Most people think a law is a legal text and a binding rule that is written by and voted on by a legislative body, and then signed into law by the governor or president. Federal and state statutes are these kinds of laws, and this is what Congressman Massie is talking about.

But this isn’t the only kind of law in this country. The United States inherited our common law legal system from England, and in this system judges make laws. In Kentucky much of our contract law, property law, and tort law, are laws made by judges. In this system a judge would deal with an issue of first impression and craft a decision based on logic and general principles of fairness. Subsequent judges faced with a similar issue would read that opinion and apply it or modify the ruling based on different facts. This is known as deference to precedent. Over the years a consistent set of laws developed. Some people argue that these are “rules” not “laws,” but if you sue someone over a car wreck in Kentucky the court will apply the common law of torts to resolve your case.

To clarify the point a bit, there are two types of legal systems in the world, civil law systems and common law systems. In civil law systems legislative bodies make laws and courts simply apply the law. There is little or no discretion for courts in those countries. Most of the world uses the civil law legal system. The countries that don’t apply the “Anglo-American” common law legal system. This system was derived in England beginning in the 16th Century, and was adopted in this country by our nation’s founders, many of whom were trained as lawyers in the common law system. In a common law legal system there are two sources of “positive” or controlling law. One is statutory law, or laws written by legislative bodies. The other is case law, which is made by judges.

In the 1960’s, in frustration over certain Supreme Court decisions, like banning prayer in public school or granting the right to an abortion, conservatives started to say that judges shouldn’t “legislate from the bench.” This ignores the fact that the Supreme Court has been doing this since almost the beginning of our nation. In 1803 in the case of Marbury v. Madison the Court said, “It is emphatically the province and duty of the Judicial Department [the judiciary] to say what the law is.” This means that Supreme Court rulings are the law of the land.

Conservative act like this began in the 1960’s, but the Supreme Court has always been making laws. In fact, throughout the 1800’s the Supreme Court issued rulings that created a very pro-business, free-market commercial legal system that skewed the law in favor of commercial interests and against consumers. In Fletcher v. Peck in 1810, the Court said that a state could not enact a law that interfered with a contract between two parties. This ruling had far reaching impact and allowed corporations to evade a wide variety of state laws. This allowed corporations to run rough-shod over the people until the Supreme Court changed course in the 1930’s. In Home Building & Loan Assoc. v. Blaisdell, in 1934, the Supreme Court said that a bank’s mortgage contract with a home owner was subject to state mortgage laws. “Public needs” require the “reservation of the reasonable exercise of the proactive power of the State [to be] read into all contracts.” Today it is the law of the land that private contracts are subject to states and local laws.

So when the Supreme Court ruled earlier this year in Obergefell v. Hodges, that state bans on same-sex marriage are unconstitutional because they violate the 14th Amendment right to equal protection, the ruling invalidated those state bans. The Court also said that marriage is a fundamental right which must be afforded to all couples, both opposite and same-sex. This ruling is the law of the land, even though no state or Federal legislature voted on it. This is how the American legal system works.

Why Is the Free Market So Foul?

The Free Market at work

Conservatives love the free market it theory, but hate it in practice.

Conservatives love the free market. That goes without saying. They complain about any government involvement in the economy, any regulation of business, and suggest that excess regulation is stifling the economy. And more often than not they say that the “free market” is the best solution to any public policy problem. Senator Rand Paul said the best way to fix health care is to “try freedom for a while. We had it for a long time. That’s where you sell something and I agree to buy it because I like it. That is how we operate in most of rest of the marketplace other than health care. … We could try freedom [in health care]. I think it might work. It works everywhere else.”

Former Presidential Candidate and publisher of Forbes Magazine, Steve Forbes has gone so far as to say that the free market is a moral system. “Free markets create goods by inciting human ingenuity to overcome obstacles and do business. … Free markets in the real world are a moral system. Think about it. To succeed in a true free market you have to meet the needs and wants of other people. Even if you lust for money, you don’t get it unless you provide something that somebody else wants.”

The basic theory of free and unregulated markets is that people, through free choice, will choose those things that are best for them, and through the cumulative effect of all of these millions of free choices, society will benefit. Adam Smith, the father of modern economics, called this “the invisible hand.” In the Wealth of Nations, Smith said that each individual “intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention. … By pursuing his own interest he frequently promotes that of the society more effectually than when he really intends to promote it.”

It’s a simple and elegant theory, and lies at the heart of the conservative idea of economic freedom. And in broad strokes the theory works. We now live in a world of vast abundance. The shelves of stores groan with consumer products, and we have so much food that we waste a huge amount of it. So, in some regards, we have a free market, and it works wonderfully. But the reality of the modern American economy is that every product from apples to Zyrtec is regulated, every industry from apple orchards to zoos, and every company from Apple Computer to the Zurich Financial Group is regulated, in one manner or another. The level of regulation varies dramatically. Drugs, like Zyrtec, are much more highly regulated than apples, and financial services are more regulated than personal computers. The level of regulation depends on the likelihood and potential for harm to the consumer. Conservatives complain about all of these regulations. They say that the free market is self-regulating, and the American economy will flourish if we just cut back on all of this regulation.

So are there any products without regulation? Is there any market where pure consumer choice controls the production, distribution and availability of goods? And if so, how does it work?

Well, yes, actually there is one free and totally unregulated market in the United States: that unregulated market is what we call the “culture.”

The “culture” is made up of a many components, including books, magazines, movies, music, television, and fashion. The “culture” also includes our collective sense of ourselves as a people. The First Amendment prevents the regulation of the distribution of ideas, which means that the content of movies, music, television, books, and magazines is unregulated. That may seem obvious, but it wasn’t always the case. Up until the 1950’s content was regulated. The main control were postal regulations that forbid the mailing of “obscene” material, and obscene was very broadly defined. This prevented the distribution of pornography, but also prevented the dissemination of some great works of literature, including An American Tragedy by Theodore Dreiser and Ulysses by James Joyce. That changed in 1959 when the publishers of Lady Chatterley’s Lover challenged these postal regulations, and won. The post office could no longer control the content of the mails and publishing changed. And then in 1973, in the case of Miller v. California, the Supreme Court struck down most restrictions on pornography. Not long thereafter the pornographic film Deep Throat was distributed nation-wide, and the multi-billion dollar American porn industry was born. According to some estimates, pornographic material – particularly images of people engaged in a wide variety of sexual activity – accounts for nearly a third of all content on the internet.

Now, in a very broad sense, the American “culture” is the freest and most unregulated market in the country. The clothes we wear, the films and television programs we watch, the music we listen to, are all the product of our own desires. Our culture is the product of nothing but the desires of the consuming public. There is no government control or outside oversight. The only driving force is demand and the profit motive. There is a demand, and someone creates a supply.

And what do conservatives think of this, the only truly free market in the nation? What do conservatives think of the culture? They hate it. W. James Antle III, an editor at conservative magazine The American Spectator, summed it up neatly: “The culture is awash in the raw sewage of vulgarity and avarice.” The director of a conservative policy group in Kentucky wrote a recent editorial about proposed legislation dealing with transgender students, which he said was a product of our “culture’s flirtation with narcissism.” So they seem to hate our culture in general, but what about specific aspects of that culture.

What has our free market culture produced? It has clearly produced books of great literary merit, and movies and music of enormous artistic achievement. It has produced television programs that are thoughtful, insightful, and informative. And then there’s the stuff that people actually buy.

Take music. The free market provides us with every type of music from Appalachian bluegrass to Zydeco, and everything in between. Music stores are largely a thing of the past, but you can download just about anything from iTunes or Spotify, and buy CD’s of every type from Amazon.com. Opera? Check. Classical? Absolutely. Bluegrass? Yep. Contemporary Christian, Indy Rock, smooth jazz? You name it, it’s all there. But what’s at the top? Schlock, nonsense pop, and thuggish rap. So what is the aggregate result of millions of free choices in music? Is it Yo Yo Ma, Winston Marsalis, or Cecilia Bartoli? Nope, it’s Justin Bieber, Kanye West and Miley Cyrus.

And what do conservatives think of the state of American music? Not much. Recently former Arkansas Governor (and former Fox News Commentator) Mike Huckabee criticized President Obama and his wife for allowing their daughters to listen to Beyoncé. Huckabee called Beyoncé’s lyrics “obnoxious and toxic mental poison” and called her husband, the rapper and promoter Jay Z, a “pimp … who exploits his wife.” Beyoncé’s music is wildly popular, but according to Huckabee it’s “mental poison.”

What about clothes. Just about everything is available in stores from bikinis to burkas. (Sorry I couldn’t pull off an “a to z” analogy, but this works better.) And what do people wear? Men wear pants down near their crotch, or t-shirts and oversized saggy shorts that make them look like enormous toddlers. Suits (and belts) are widely available, but few wear them. And women were yoga pants so tight it leaves little to the imagination. The general state of American fashion is pretty dismal.

And conservatives don’t like it one bit. Just recently a Republican state legislator in Montana wanted to ban yoga pants. Last year conservative lawmakers in Florida tried to ban saggy pants. Recently Fox News commentator Geraldo Rivera said saggy pants were holding back young urban blacks and Latinos.

TV? Two words summarize the state of American television. Sex Box. Have you heard of it? The title is pretty descriptive. A couple goes into a box, has sex, and comes out and talks about it with a panel of sex and relationship therapists who discuss the importance of sex in a relationship. So it’s educational. But one supposes the therapists could have the same discussion without the salacious aspect of showing the couple going into the box, and then waiting ten or fifteen minutes before they emerge in matching silk robes.

Conservatives are not amused. The president of “Concerned Women for America” and the director of the “Parents Television Council” took to Fox New to denounce it. “‘Sex Box’ should never see the light of day, or the night for that matter, on basic cable,” they said. “A live sex show is something that one might expect to find on a premium cable network. However, in an affront to all families, WEtv is bringing that content to basic cable and potentially exposing millions of children in the process.” This show, they said begs the question of how far the media will go to get ratings. … [the] immorality ends when the public, more specifically, the viewers say that they’ve had enough.”

So TV is a vast sewer. But we knew that already.

What about movies? Every year hundreds of well made, thoughtful and often moving movies are made in the English language. This year’s Oscars featured an interesting variety of artistic, historical, and even patriotic movies. But what dominated the box office? Hunger Games, Transformers, and the Lego Movie.

There’s no doubt that conservatives understand that the culture is driven by market forces. They embraced the movie American Sniper. For them the box office success of the movie was evidence that America was embracing their values. And when it didn’t win an Oscar they complained about liberal bias. Fox News commentator Sean Hannity tweeted during the Oscars: “AMERICAN Sniper snubbed by liberal hwood Predictable.”

Conservatives were less pleased when Fifty Shades of Grey moved into the top spot at the box office. Conservative commentator Brent Bozell said: “Here’s one obvious sign that we live in a profane world. ‘Fifty Shades of Grey,’ the ‘mommy-porn’ book turned into a movie, complete with its whips and chains and erotic punishment, debuted to far less controversy than “The Passion of the Christ” in 2004.”

Whether it’s hard core pornography, misogynistic rap music, moronic movies, a “liberal” media, or television shows disdainful of religion, tradition, morality and family values: all of these exist because of the demands of the American people. The culture is a perfect free market, and it’s a sewer.
Make no mistake; the free market didn’t debase the American culture. The free market simply gave the American consumer a cornucopia of entertainment options. We debased the culture on our own.

So the only truly free market in the country is “awash in the raw sewage of vulgarity” and proves that “we live in a profane world.” What does this say about free markets? What does this say about the idea that the collective action of millions of choices will produce a socially beneficial result? I would say that the culture is pretty clear proof that the idea of an invisible hand guiding individual choices to create a beneficial social outcome is fallacious, at best. The invisible hand, which is supposed to guide free exchange based on supply, demand, and the profit motive to produce socially beneficial outcomes, has slapped conservatives in the face.

So conservatives love the free market, in the abstract at least, but they hate the only truly free and unregulated market in the country.

Same-Sex Marriage, The Sixth Circuit, and the Supreme Court

[Note: This was submitted to the Lexington Herald Leader, but not published.]

The Supreme Court will hear oral arguments in the cases dealing with state restrictions on same sex marriage on April 28, and will most likely issue a ruling by the end of the term in June. It’s widely assumed that they’ll rule that the bans on same-sex marriage are unconstitutional, and hold that people have a constitutional right to marry whoever they please.

Four U.S. Circuit Courts have found these bans unconstitutional. One, the Sixth Circuit which covers Kentucky, has upheld their constitutionality. Unfortunately the Herald-Leader seems to imply that there’s a chance the Supreme Court will side with the Sixth Circuit. That is highly unlikely.
The reason is that the Sixth Circuit ruled on a technicality and never addressed the substance of the issue. The Sixth Circuit relied on a 1972 Supreme Court case called Baker v. Nelson, which was a one sentence decision holding that the issue of same-sex marriage didn’t raise a federal question. Because of this scant precedent, the Sixth Circuit said it didn’t have the authority to address the issue. The problem is that Congress made same-sex marriage a federal issue when it enacted the Defense of Marriage Act (DOMA) in 1996, and the Supreme Court tacitly overturned Baker when it struck down DOMA in 2013.

The four other Federal Appeals Courts that struck down bans on same-sex marriage did so with lengthy rulings that addressed, and rejected, most of the arguments in support of the bans. Every court, including the four Circuit courts and dozens of District Courts, that has found the bans unconstitutional have applied the same reasoning. Such bans violate the Due Process clause of the Fifth Amendment, which states that “no person shall … be deprived of … liberty … without due process of law,” and the Equal Protection clause of the Fourteenth Amendment, which says that no State shall “deny to any person … equal protection of the laws.”

It’s a simple and compelling argument. If the state allows one group of people to marry, the equal protection clause says that they have to allow all groups to marry. However, the Due Process clause says that the government can deny rights to certain groups with “due process of law.” If the right involved is a fundamental right then the state must have a compelling reason and any restriction must be narrowly tailored to achieve the state’s compelling purpose.

Opponents of gay marriage say that states have a compelling interest in protecting families, children, and “traditional marriage.” The Fourth, Seventh, Ninth, and Tenth Circuits all considered these arguments and found them wanting.

The Seventh Circuit focused on the idea of “traditional marriage” and found that tradition was not a compelling justification for denying people their rights. The Ninth Circuit analyzed the argument that marriage is about procreation, and found this argument unpersuasive because, in part, many marriages don’t produce children, and many children are born outside of marriage. The Eleventh Circuit analyzed the question of child rearing and found no compelling difference between opposite-sex and same-sex parents. The Fourth Circuit compared the restrictions on same-sex marriage to the odious restrictions on interracial marriage that were struck down in the 1960’s. The same specious arguments were used then, and are equally invalid now. Each of these decisions relies on lengthy historical and legal analysis, and copious and detailed factual studies.

So as the Supreme Court takes up the issue of same-sex marriage it will ignore the Sixth Circuit’s ruling as irrelevant. The Court will then consider the substance of the underlying Due Process and Equal Protection issues, and will rely on the detailed and thoughtful analysis of the other four Circuit Courts. It seems likely that the Supreme Court will decide, as has every court that has honestly evaluated these issues, that there is no compelling justification for banning same-sex marriage.

Making Sense of Ferguson

[This was recently published on CounterPunch under the title “The Police and the American Mind.”  My Original title was “The Thin Blue Line.”]

The only way to really make sense of the events in Ferguson, Missouri, and Staten Island, New York, is to understand two concepts. The first is that police believe themselves to be the thin blue line that stands between civilization and chaos. And the second is the “broken windows” theory of policing.

The “Thin Blue Line” is a common colloquialism for the police, but it’s more than that. It’s the way that the police, and many people in society, particularly conservatives, view law enforcement. Law enforcement is all that stands between civilization and chaos, the police are the Thin Blue Line that protects society from anarchy.

The “broken windows” theory was developed in the early 1980s by criminologists James Q. Wilson and George L. Kelling, who found that crime exists in every human society, but crime rates are higher where there are other signs of social disorder. In areas where there are broken windows, for example, there’s a sense that no one cares about the physical infrastructure of society, and that lack of concern trickles up. Vandals break more windows, then maybe break into the building, possibly even burn it down. These little crimes go unreported and unpunished, and so more crimes occur. The result is that there is not only more petty crime in dilapidated areas, but more serious crime. So Wilson and Kelling said that society should spend more time on the small stuff. Fix the windows, scatter the panhandlers, arrest the turnstile jumpers. Deal with the low-level crimes and the more serious crimes will come down.

The police in New York City began to take this approach in the mid-1980s. They went after graffiti artists, panhandlers, toll jumpers and the like, and instituted a zero-tolerance approach to most petty crime. As a result, crime came down, and in some cases significantly. Times Square went from a mecca of porn theaters, prostitutes and drug dealers to a tourist haven. Based on this success, the broken-windows concept spread across the country. Police began to see low-level crime as the first sign of anarchy, a potential the crack in the dike that protects civilization from a flood of crime. Petty criminals aren’t just sad sacks filching cigarettes, they’re the advance guard of social decay.

You can see this theory at work when you watch the video of five police officers confronting, taking down and killing Eric Garner. To those of us watching the video, Garner’s only crime was selling loose cigarettes. But to the police he wasn’t just some petty criminal, he was a broken window, the first sign of anarchy. And anarchy must be confronted with a phalanx of officers.

Read Officer Darren Wilson’s grand jury testimony about his confrontation with Michael Brown: Brown wasn’t some kid who may have snatched a handful of cigars from a convenience store. He was a “demon.” And Officer Wilson knew in his bones that he was all that stood between that “demon” and civilized society. And so he acted accordingly.

The view of the police as the thin blue line between chaos and civilization permeates our society. Flip on your TV and watch “NCIS,” “Bones,” “Criminal Minds,” or reruns of “Law and Order.” What these shows all have in common (beyond wooden acting and a high body count) is the view-point that law enforcement is all that stands between civilized society and a wave of crime.

Local news is dominated by fires, car wrecks and crimes. And in virtually every news story there are lots of flashing lights and at least a few police officers trying to repair one of the cracks in society.

We have all internalized this idea. So have the citizens who sit on grand juries. They know that the police are the thin blue line. And even if they don’t think about it in those terms, a district attorney or county prosecutor is there to remind them. The prosecutor may say something like: “Those officers put their lives on the line every day protecting you and me. They need tools to deal with dangerous situations and dangerous people. And they need to be afforded the discretion to deal with those dangerous situations.” So the grand jury grants them that discretion. They afford them the leeway to protect society, which means that they weigh the situation, the deadly encounter, in favor of the police officer and against a potentially dangerous person. The result is that Officer Wilson in Missouri, and Officer Daniel Panteleo in Staten Island, New York, are not charged.

Many people see this and say that it is racism. And so the thin blue line intersects racial lines. There is no denying that black Americans are arrested, prosecuted and incarcerated at a much higher rate than whites. Blacks make up about 12 percent of the population, but account for roughly 37 percent of the prison population. So on first blush it appears that blacks may be more prone to crime than whites. But if you cut the numbers differently and correct for wealth and poverty, the numbers equalize somewhat. This plays out across all crimes, but is seen most clearly with drug crimes. While five times as many whites use drugs as blacks, according to a NAACP report, African Americans are incarcerated at ten times the rate as whites. And while the violent crime rate is much higher overall for blacks than whites, it is similar for blacks and whites of similar socio-economic levels. So crime is largely a product of poverty not race. This leads back to the broken-windows theory. Poor neighborhoods are often dilapidated, and there is a good deal of petty crime. And so while blacks are no more likely to use drugs or commit crimes that whites, they are more likely to live in poor neighborhoods, and so are treated based on the broken-windows theory and punished harshly.

The result is the perception, based on arrest and incarceration rates, that blacks commit more crimes than whites. Police deal with this on a regular basis. They see the broken windows and the petty crime of poor black neighborhoods, they know the “broken-windows” theory of criminology, and they put two and two together. So when they see a black guy on the street potentially engaged in a petty crime, they don’t really see Michael Brown, they see a representative from the world of broken windows. They think they’re being even handed, but their vision is obscured by facile theories about broken windows and clichés about thin blue lines.

And so when the police, and conservative commentators, see people protesting events in Ferguson or Staten Island, they see a number of things. First, they see the police as being unfairly accused of racism. But more importantly they see a direct challenge to how the police do their job, about how they protect civil society. The protestors are questioning how the police man the ramparts, how they patrol streets fraught with chaos. The police, and their supporters, don’t see protestors raising legitimate concerns about how to protect society; they see people who are naïve to the dangers that face society. They see the protestors as deluded about the steps necessary to keep anarchy at bay, and trying to fray the fabric of the thin blue line. And so conservative commentators respond with outrage, and the police respond in riot gear.

Does Government Only Worsens the Problems it intends to fix?

“Government intervention never works but in fact prolongs and worsens the problems it is intended to fix.” Senator Rand Paul

I came across this quote recently while doing some research on Republican’s views of “The Road to Serfdom,” by Friedrich Hayek. Hayek is the intellectual forefather of much conservative thinking on government intervention into the economy. Paul’s statement was published in an essay he wrote for The Intercollegiate Review, a magazine for college Republicans. It is available on line at Rand Paul’s Challenge to Students.  The essay is a year old, but it seems to encapsulate Senator Paul’s hostility toward the government.

So how accurate is Paul’s statement? Does government intervention make things worse? There is no doubt that government can often be ineffective and bumbling. We see examples in the paper every day. But does that mean that government only makes things worse when it tries to fix a problem?

Let’s think about a couple of examples here in the United States, to test this theory.

After the Second World War, President Eisenhower decided that the nation had a transportation problem, and he proposed a government program to fix it. The problem was that it was extremely difficult to drive from one side of our country to another. Eisenhower had recently commanded a military force that pushed from the shores of France deep into Germany, and done much of that on Europe’s road system. Eisenhower decided that the United States needed something similar, and proposed our interstate highway system. This system is now fully built. Did it worsen the problems of national transportation?

There’s no doubt that highways have created a bunch of unanticipated problems. These range from expanding urban sprawl to the demise of small towns as commerce moved to the nearest Interstate exit. But did the government intervention into the national transportation system “prolong and worsen the problem it intended to fix” as Paul flatly states. Nope, not even close.

Here’s another example. During the creation of the nation the founders felt that it was important for the government to establish a system to protect inventors and creators, to allow them to profit from their creations as a way to spur innovation. And so they included a provision in the Constitution, and Thomas Jefferson established the United States Patent Office. Did the patent office “worsen the problem it was intended to fix”? Not even remotely. The United States has the most dynamic and innovative economy in the world, largely because of the way we protect intellectual property.

But clearly these aren’t the kinds of things that Paul and other conservatives are talking about when they condemn government action. Mostly they’re talking about welfare and economic regulations. So, do these programs make things worse? It’s hard to analyze if you only focus on this country, but far more clear if you look at all the nations of the world.

Put simply, those nations with robust welfare systems have far less poverty than those nations that don’t. Just compare Western Europe with South America, or Africa. And well regulated economies are far more productive than lightly regulated economies. Compare the OECD countries (the 20 richest countries in the world) with most of the rest of the world.

Obviously there are outliers. There are a few remaining communist countries, like Cuba, Burma, Cambodia, and North Korea, and their economies are in shambles and their people in poverty. Clearly total government control of the economy as a means to ameliorate poverty does not work. But modern Western economies, with sensible regulation, are doing extremely well.

I’m sure conservatives will say I’m cherry picking positive examples, or creating a straw-man argument. But Paul said “government intervention never works.” He didn’t qualify it. I’m just holding him to his own words.

One of the knocks against Conservatives is that they are clueless about history. But they don’t seem to know much about the modern world either. Are they really unaware that countries without welfare systems are third world nations mired in poverty? Don’t they realize that countries without effective governments are chaotic failed states? Don’t they ever look at the world and see that countries with welfare systems have far less poverty than countries that don’t? Or don’t they see that the economies of the richest nations are regulated, while unregulated economies are pathetic?

I think that there are at least two causes to this problem. The first is that Fox News doesn’t do much international reporting. So Senator Paul doesn’t ever learn what goes on in the rest of the world. And he knows that his supporters don’t know either, so he can get away with making these statements. The other problem is the idea of American Exceptionalism, which allows conservatives to ignore the lessons from rest of the world. But the rest of the world exists, and it can teach us many valuable lessons. And one of those lessons is that government can fix problems.