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

Introduction

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.

Conclusion

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.

What the Originals Intended

Madison

The death of Supreme Court Associate Justice Antonin Scalia has once again thrust the idea of “original intent” onto the national stage. Conservatives argue that the Constitution should be interpreted based on the intent of the men who wrote it. The problem with this concept is that the Framers themselves didn’t believe in it.

The issue of interpretation didn’t come up during the Constitutional Convention. The Framers were too busy trying to reach some form of workable agreement to spend time dealing with how future generations would interpret the document.

The issue of constitutional interpretation first came up during the debate over the creation of the First Bank of the United States, during the First Congress. The Bank was part of Treasury Secretary Alexander Hamilton’s plan to make the new nation a mercantile power like England. Hamilton submitted his plan to Congress, where it was considered first by the Senate. It passed through the Senate with little debate, and no discussion of whether chartering a Bank was something that Congress had the Constitutional authority to do.

The bill then went to the House, went through a first reading, went to committee, and then came back to the House floor for final debate. It was only at then that objections were raised. James Madison, the chief architect of the Constitution, said that Congress didn’t have the authority under the Constitution to charter a bank. Madison was known to be hostile to banks, but he couched his objections in the words of the Constitution.
Madison said that the powers of the government are limited, and Article I, Section 8, of the Constitution sets out the list of the things that Congress can do. Chartering a bank is not on the list. Fisher Ames noted that the “necessary and proper” clause at the end of the list in Section 8, and in his view a Bank was necessary to achieve some of the enumerated powers, like levy taxes and manage interstate commerce.

Madison said that this broadened the meaning of the “necessary and proper” clause beyond what the framers intended it to mean. He said that the intent was only to breathe life into the specifically enumerated powers, and not to expand those powers. He also said that omission from the list of enumerated powers was the same as exclusion from the powers of government.

Elbridge Gerry of Massachusetts (he of the crazy legislative districts) disagreed with Madison’s suggestion that the Constitution should be interpreted based on the intent of the framers. He said that nothing like this was every considered. He said that the rules of legal interpretation by famed British legal scholar William Blackstone might be a better guide, because they were the familiar methods used to interpret laws and statutes. Blackstone said that the fairest and most rational method to determine the will of the legislature is “by signs the most natural and probable, and these signs are either the words, the context, the subject matter, the effect and consequences, or the spirit and reason of the law.” It did not include somehow discerning the motives of the individual authors of the law.

Gerry mocked the idea that the meaning of ambiguous terms could be determined by reference to the debate in the Constitutional convention. Gerry had been one of the most active Framers, speaking more than any other person present. He pointed out that memories of the convention varied, as indicated by the difference between his recollection and Madison’s on this issue.

The House ultimately voted in favor of the Bank Bill, and essentially against Madison’s interpretation of the meaning of the Constitution. Eight Representatives and ten Senators had been at the Constitutional convention, and only five sided with Madison.

The bill then went to President Washington, and he asked his senior advisers for their opinion. Jefferson and Edmund Randolph opposed it, while Hamilton (no surprise) supported it. Washington, who had presided at the Constitutional Convention, agreed with Hamilton and signed the bill. All told, there were 21 “Framers” in the first government, and 16 disagreed with Madison’s view of the bank. Obviously some may have disagreed for reasons other than his theory of Constitutional interpretation, but they certainly did not believe that they were bound by his views of what the framers of the Constitution intended.

It’s interesting to note that Madison had to deal with this issue again when he was President, and the Bank was up for re-chartering. This time Madison did not object. He said that “waiving the question of the constitutional authority of the Legislature to establish an incorporated bank as being precluded in my judgment by repeated recognitions under varied circumstances of the validity of such an institution in acts of the legislative, executive, and judicial branches of the Government, accompanied by indications, in different modes, of a concurrence of the general will of the nation….”

In other words actual use changes the meaning of the Constitution. That’s one way to say that Constitution is a living and changeable document.

A few years later Madison was asked about deferring to the original intent, and studying the events at the Constitutional Convention to determine the intent of the framers. It was well known that Madison had taken fairly comprehensive notes of the debates. He said that “As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character.”

It is hard to take “original intent” seriously when James Madison, the “Father of the Constitution” said it was a silly and simplistic idea.

This essay was adopted from a recent law review article on the fight over the first bank. The full article is available here: The Fight Goes on Forever

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.

The Marbella Index

Marbella One of the most common words used by the Republican presidential candidates during the recent debates was “freedom.” They all believe in “freedom.” They want to preserve and protect American’s “freedom.” Freedom, Freedom, FREEDOM!!!

OK, I get it. But they never really explain what that means. What are they talking about when they say freedom? Based on other things they talk about, I think they mean the ability to do whatever you want. You are free when you can do what you want.

If this is what it means to be free, who is free? Who in this world can do what they want?

To understand this kind of freedom I apply what I call the Marbella Index. For those who don’t know, Marbella is a resort on the Spanish Mediterranean coast. It is frequented by rich Russian plutocrats, and tourists from across Europe, though mostly Germans and Scandinavians. The beaches are frequented by overfed Swedes and Germans in tiny speedos sporting their national flag, their Teutonic paunches drooping over skin tight lycra.

fat man on beach

In Russia, to be truly free, you have to be a former communist party member, or now the son of a former party member, who got a slightly nefarious deal on a company during the early years of the first Putin administration.

In the rest of Europe all you need is a job, and you have a pretty decent wage and lots of vacation time. France is even famous for its vacation time. There are plenty of beaches on the French Mediterranean, so you don’t see many in Spain. But Germans and Scandinavians flock to Marbella, as well as beaches and resorts around the Mediterranean, from Spain to Turkey across the northern coast, and from Morocco to Egypt on the southern coast (though Islamic extremist and political instability are making those resorts far less popular).

In fact, if you go to fancy resorts around the world the people you see most frequently are Europeans, along with plenty of Australians and a surprising number of New Zealanders. This makes sense around the Mediterranean since it is close to the rest of Europe. But it is surprisingly true throughout the Caribbean, the Pacific and the Indian Ocean, which are all far from Europe. There are plenty of American at Caribbean resorts, but you are just as likely to hear French or German as English. And you’re just as likely to hear that English with a British or Australian accent as an American accent.

I know people will argue that there are so many resorts in the United States that most Americans stay home, and that is certainly true. But Brits go to Bristol, and Germans ski in Bavaria. But the beaches of the world are full of middle class Europeans.

So based on the Marbella Index it’s the Europeans who are the freest people on earth.

The Extent of Our Control

We are all dust motes, floating through the air, buffeted by forces far far beyond our control. But as human beings we don’t want to believe it. We want to believe that we have some degree of control over our lives and the world we live in.

I thought about this as I watched the most recent Republican Presidential debate. They were talking about the economy and about how their plans would revive the economy. I’ve listened to politicians most of my adult life talk about how their policies will impact the economy, and I’ve spend as much time watching and wondering at how little impact government policy has on the economy. In the last six years or so we have heard Republican politicians confidentially claim that the health care reform law known as Obamacare was going to stifle job creation and crater the economy. It flat out didn’t happen. And it didn’t happen because government policies like that have only marginal impact on the economy. They do have some impact, but it is never as much as most politicians say.

The reality is that government policies have surprisingly little impact on our day to day lives. There are certainly some cases where government policy does have a major impact. If you are gay you were denied the right to marry until the recent Supreme Court decision. Now you can marry. That is a significant impact on the lives and happiness of a great many people. But the other reality is that if you are not gay the Supreme Court ruling has no impact on your life.

The reality is that the world is a big complex place with lots and lots of moving parts. The government can have an impact in certain areas, but a great deal of those moving parts keep moving without, or perhaps even in spite of, government action. The economy is made up of millions of consumers buying things and millions (or perhaps only hundreds of thousands) of businesses making and selling things. Government rules can have an impact, but the reality is that things keep getting made and bought because people want things.

The American consumer economy is a vast chaotic place. Products come and go, fads come and go, tastes changes. The ideas of a few tech geeks can have a greater impact on our lives that the ideas of the world’s most powerful politicians.

When I began my legal career most attorneys had their own secretary, and large firms actually had secretarial pools of secretaries. Now they don’t. Most law firms have a few secretaries/legal assistants assigned to each section. I would hazard a guess that in the last twenty years the legal market has eliminated a couple of million legal secretaries. Why? Computers and word processing software. Most attorneys now do their own writing, on their own computers. They no longer draft a letter or memorandum by hand then have a secretary type it up, then review it, etc, until the final product is produced. Attorney’s now do it all themselves. Bill Gates and Paul Allen had a greater impact on the American workplace that every politician and every law since the popularization of the personal computer and word processing software.

Most of us realize, deep in the pit of our stomach, that we have almost no control over the world we live in. We are buffeted by eddies and currents, tides and winds. Apple unveils a new phone and our world changes yet again. It is a disquieting feeling. And, in my opinion it is getting worse. We all know that the industry in which we work can change overnight. Some computer geek in Silicon Valley can create a new program that will make our job obsolete. Secretaries have been replaced by computers, factory workers have been replaced by industrial robots. Amazon is talking about shipping packages by drone, which will eliminate the jobs of thousands, if not tens or hundreds of thousands, of delivery drivers. Welcome to the brave new word.

It’s a new world and we don’t like it one bit. We want to feel like we have some control over our lives. And the one place where we do have some control is over our government. We elect the people that run our government. Our votes control who is President and who is in Congress. So we, to some degree, do control the government.

But, here’s the thing, the government doesn’t really have as much control over things as we would like to think. If Amazon decides to ship by drone, no government policy will save those delivery jobs. Just like no government policy can save those factory jobs replaced by industrial robots, or those secretarial jobs replaced by Microsoft Word. Or, quite frankly, those retail jobs replaced by internet retailers like Amazon. But we don’t like that, so we lash out at the one place where we do have some control, which is the government. We are mad at government for not protecting us from a changing world. But the government can’t do anything, because the government did not cause those changes. And so our anger gets deeper and deeper.

NRA Calls Americans Most Murderous People on Earth

The bumper sticker says “Guns Don’t Kill People, People Kill People.” This implies that if a gun is not available a person with murderous intent will find another way to kill.

It’s absolutely true that people kill with things other than guns. In 2013, for example, there were 16,121 murders in the U.S., 11,208 with guns. This leaves just under 5000 murders by other means. According to the FBI the most common method other than firearms, are a knife or blunt object, or other non-personal weapon which includes drowning, strangulation and throwing out of a window. CDC numbers on Homicides.

On average, over the last ten years or so, there are roughly 15,000 murders in the U.S. each year. Of those, roughly 10,000 are with guns, and 5,000 with other methods. I should note that guns kill roughly 30,000 people each year. The vast majority are suicides, at about 19,000 per year. Accidental gun deaths account from roughly 500 to 1000 per year. CDC data on Gun deaths.

The question is whether all those murders who use guns would switch to something else, something a bit messier, like a knife or a tire iron. It is certainly possible.

I will admit that some people want to kill and they succeed. I’ll admit that some of those people will kill with guns, and if a gun is not available, they will kill with another weapon. Murder, unfortunately, is part of human nature.

In general, if you take account of environmental factors, human nature is pretty uniform around the world. Humans are all the same species, and act in remarkably similar ways in every society on earth. And some of those people are killers. Statistically the murder rate should be fairly stable around the world, excepting certain environmental factors, like wars or other forms of social chaos. And, in fact, the countries with extremely high murder rates, like Honduras and El Salvador, are in the midst of economic and political chaos. UN Global Study on Homicide.

The murder rate in the U.S., therefore, should be roughly the same as the murder rate in other similar countries, like those in Europe, Canada, and Australia. But it isn’t. The United States has one of the highest murder rates among developed nations. According to data from the UN, the murder rate in the US is roughly 5.0 per 100,000 people. The average for developed countries is around 1.3 per 100,000. This makes the U.S. roughly 3.5 times more murderous. Data from the Worldbank   UN Data on homicides. Here’s an interesting chart from Slate.  Justice Department Statistics

Now consider the weapon used to kill in the U.S. Guns kill roughly 10,000 people per years, and other weapons kill about 5,000. If you factor out the gun killings in the U.S., the murder rate drops by two-thirds, and puts us at roughly the same murder rate in the rest of the developed world.

The multiplier is guns. The other possible explanations are that we are in the midst of a civil war or Third World levels of social chaos, or Americans are simply more violent than other human beings. We aren’t in a civil war, and according to the NRA the problem can’t be guns.

The only way for the bumper logic to work is if Americans are simply more murderous that any other people on earth. So the NRA is saying that Americans are the most murderous people on earth.

By the way, the common Republican talking point that the issue is mental health and not guns only works if Americans are three times crazier than anyone else on earth. Well, they may be right about that one.

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.