How’s That ‘Living Constitution’ Working Out for You?
Progressive enthusiasm for the notion that our governing framework is dynamic and ought be constantly updated by the judiciary is waning.
In light of several recent Supreme Court rulings that have gone against them on gerrymandering, labor unions, and cakes for gay weddings, I have noticed a decline in enthusiasm for the judiciary being the arbiter of American political life. In the wake of Anthony Kennedy’s retirement from the bench and the seeming inevitability of President Trump getting a younger, more conservative replacement through a majority-Republican Senate, I’m seeing many calls for judicial reforms that would reduce the power of unelected judges vis-a-vis the elected representatives of the people. (Conversely, I haven’t seen many conservatives complain about judicial activism lately; but that’s a subject for another time.)
UNC-Chapel Hill political scientist Timothy Ryan correctly notes that “Trump will now have as many appointments in two years as Obama had in eight” and suggests a series of reforms:
This is as good a time as any to say it. SCOTUS justices: single 18-year term, non-renewable, with one retiring every two years. Addresses the problems of strategic retirements, uneven appointments, & a geriatric Court. Plus, 30 yrs is too long to hold office w/o accountability.
— Timothy Ryan (@TJRyan02) June 27, 2018
Journalists Kelsey Atherton and Osita Nwanevu issue similar proposals:
six more justices and term limits capped at 15 years
— Kelsey D. Atherton (@AthertonKD) June 27, 2018
1) End the filibuster.
2) Pack the Court.
3) Statehood for DC and Puerto Rico.— Osita Nwanevu (@OsitaNwanevu) June 27, 2018
While perfectly Constitutional, “packing” the Supreme Court by increasing its size is a slippery slope worse than the Merrick Garland gambit. To be sure, the political climate is very different now than when Franklin Roosevelt was excoriated even by his fellow Democrats for attempting to do so in the wake of early defeats of his New Deal legislation by a conservative Court correctly reading the Constitution and failing to bend it to extraordinary circumstances. But I’d far rather end the power of the judiciary to overturn acts of Congress than I would to have it simply be a partisan tool of whoever can manage to simultaneously control the White House and the Senate.
I don’t support statehood for DC or Puerto Rico for a variety of reasons, but mostly because I oppose compounding the problems created by the Senate and Electoral College by adding two more small-population states to the Union. And Puerto Rico voters have rejected statehood time and again when put to a referendum. Regardless, absent a massive Democratic takeover, there simply aren’t the votes to get them in without offsetting Republican states.
I very much support term limits for judges, for precisely the reasons Ryan lays out. I’d likely go for 20 years rather than 15 but either is rather arbitrary and both serve the same ends. But Article III clearly specifies that judicial appointments are for life. It would, therefore, take a Constitutional amendment to make this happen and I can’t imagine that this reform would be sufficiently popular to make it through the Congress with a 2/3 supermajority in both Houses, let alone 3/4 of the state legislatures.
Returning more power to the states and localities would be an easier solution, although not a popular one. Progressives are ideologically predisposed to centralized power. Conservatives claim to want devolution but strangely don’t govern that way, with the Defense of Marriage Act as the most glaring example.
Speaking for myself, none of the rulings (many of which I don’t like) have not change my mind about the courts or the fact that the constitution cannot be considered a static document with a set meaning (if anything, were that true, there would be no need to interpret it at all).
I do, wholeheartedly, support a model of appointment of the Court that looks like the way the Fed works or some similar model. But I have thought that for quite some time now.
Of course it’s worth noting that the Defense of Marriage Act passed both House of Congress on a bipartisan basis and was signed into law by a Democratic President.
On the broader point of the post, your point about the change in how the left and the right feel about the judiciary is basically a question of whose ox is being gored. For better or worse, we’re on the edge of what’s likely to be a generation-long rightward tilt on the Supreme Court. Democrats will respond to that in much the same way Republicans did to the Earl Warren and Warren Burger eras.
The Supreme Court can be easily packed, at least. I mean, there are these five thousand immigration judges no one but Mangolini know about.
@Steven L. Taylor: @Doug Mataconis: Concur on the ideological issue. The only ruling I thought really out-of-bounds was the upholding of the Muslim ban, and only because the Majority refused to take the President’s repeated statements that it was a Muslim ban seriously. I’m mostly just tweaking people who have gotten most of their policy advances through judicial fiat rather than democratic policy change now that the shoe is on the other foot.
@Doug Mataconis: Fair point on DOMA. It was an initiative of a Republican Congress—and partly out of fair judicial activism in Hawaii would lead to a cascade effect—but Clinton did sign off on it.
@Kathy: Creating more Article II and Article III judges to deal with workload is a completely different issue than expanding the Supreme Court to put a partisan stamp on it. But, yes, there’s nothing to stop it if the votes are there.
I again offer my proposal:
Eliminate the SCOTUS entirely. Each year 18 federal appeals court judges will be randomly selected. 9 will choose cases that require Supreme Court review (without knowing who will eventually decide them) and the other 9 will decide the cases choosen in the previous year.
@Stormy Dragon:
Aside from also needing a Constitutional amendment, since the Supreme Court is specifically enshrined in Article III, this is an interesting idea. It might have the unintended consequence of ratcheting up the heat on lower court confirmation battles, though.
@James Joyner: I agree bout the travel ban. That was an overly narrow, deferential majority opinion.
@Steven L. Taylor:
Especially so close to “Masterpiece Cakeshop v. Colorado Civil Rights Commission”. I find it hard to conceive a consistent rule that allows the court to find animus in the CCRC’s statements but not in the Trump administration’s.
@Stormy Dragon: I had not considered that as yet–excellent point.
@Stormy Dragon: @Steven L. Taylor: Yup. Sotomayor specifically made that connection in her dissent and Ilya Somin, hardly a leftie, expanded on that in a column earlier today.
@Stormy Dragon: I find it hard to conceive a consistent rule that allows the court to find animus in the CCRC’s statements but not in the Trump administration’s.
I’m pretty sure the answer to that is there was an alternative rationale to the travel ban, national security, while there was none to “Bake me a cake, bigot!”
Of course, I think the idea that a country doesn’t have an absolute right to determine who does and does not get to enter its borders to be utterly ridiculous so any and all surrounding commentary would be irrelevant.
Mike
@James Joyner: “I’m mostly just tweaking people”
It’s called trolling, James. Easy to do when none of your rights are up on the chopping block.
As far as packing the court goes… I would say that all bets are off. The refusal to hold hearings for Garland was when we, as a nation, decided that norms are for suckers and sheer political power is the only thing that matters.
When there is a Democrat in the White House, and a Democratic Senate, I would expect to see a Supreme Court of 11 just to even out the Gorsuch seat (one to oppose and cancel out Gorsuch, one to tip the balance as Garland would have).
I do think that there should be no lifetime appointments to anything, but that is going to require constitutional changes, which would probably only come as a compromise to the chaos caused by packing the Court.
By the way, in case anyone didn’t read the “Masterpiece Cakeshop” decision, this is the kind of commentary to which the Supreme Court objected.
“I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”
I’m not sure you can actually compare anything Donald Trump said or tweeted about the travel ban to stuff like that. Freedom of religion is ” one of the most despicable pieces of rhetoric that people can use”?
Mike
@MBunge:
The country is more than just the President. You would do well to remember that.
Border security is an executive responsibility, but the executive is always overseen by the other two branches of government. We are a nation of laws, not a nation of Presidential decrees. And, our constitution prohibits religious tests, and clear displays of animus in determining policy.
I think the Supreme Court got that ruling wrong — very wrong — but not as wrong as your apparent belief that they had no right to rule on it.
The problem with packing the court, regardless of which party does it, is that the other party can keep on packing it as well.
So let’s say than in 2021 a Democratic president increases the court to 11, then appoints justices only upon death or retirement of seating justices. Fine. Then in 2025 or 2029, a GOP president will increase the court to 15.
Should then some future administration wish to unpack the court, they’ll have to wait for justices to retire or die, unless they’re willing to gin up impeachment charges against the justices they wish to remove.
You know, usually when a rule or law affects two opposing sides, these tend to draft such rules or laws as to be mutually beneficial. At the political level in America, they’re being crafted to benefit the party in power only. You’d think they’d have seen the problem by now.
@wr:
No, I’m not trolling. While I’m less conservative than I was ten, certain twenty, years ago I still believe in limited power at both the Executive and Judicial level.
While I don’t think a purely “strict constructionist” view of the Constitution is workable given how much the world has changed since 1787, I don’t want the Supreme Court to act as a sitting Constitutional Convention, either. While I think, for example, that SCOTUS ultimately settled on the right policy on abortion with Webster and subsequent cases, with the fetal viability standard, and absolutely believe that the result in Griswold was right, I nonetheless think finding a privacy right hiding in the shadows and then creating out of whole cloth a right to abortion was judicial misconduct that’s had terrible consequences for the political fabric of the country. Indeed, it ironically elevated abortion into a much more volatile political issue.
Likewise, I think the instinct of the Roberts majority in deferring to the Executive’s Constitutional and statutory power vis-a-vis immigration. I just happen to think that, given countervailing Constitutional and statutory principles, Roberts and company were disingenuous in failing to recognize the plainly stated discriminatory intent.
And, as noted in numerous posts since the election, as much as I hate Trump’s abuses, there is some schadenfreude in watching the panic over the concentration of power in the Executive, particularly his ability to undo Obama fiat by his own fiat. In that case, however, it’s very much tempered by the horrendous consequences.
Oh there was an alternative alright…that being that Christian feelings dare not be hurt at all but Muslims can happily be discriminated against by being kept out of our country…
Chalk that up as another vote for a religious test to determine who gets past our borders…
Excuse me, but religion was used to justify slavery and anti-miscegenation laws…if that isn’t a despicable use of religion, I don’t know what is…
@Gustopher:
Of course the Court had the right to rule on the matter. It’s simply that deciding whether or not to invalidate an otherwise entirely legal act with an entirely legal justification because you think the President might have hate in his heart is ridiculous.
Mike
Sorry sweetie, but there’s no “might” about it…
@An Interested Party: Chalk that up as another vote for a religious test to determine who gets past our borders
Uh, The Constitution cannot apply to foreigners living in foreign lands. If it does, then being an American or even just living in America has no meaning.
To dumb it down for you, if Donald Trump announced the expulsion of all non-citizen Muslims from the United States, THAT would run smack dab into Constitutional prohibitions even though it only affected non-citizens. But the idea a foreigner has some right to entry that a President might violate or infringe upon?
And since I know this legitimately interesting story will NEVER get its own post around here, have you seen Donald Trump’s approval ratings in the wake of the family separation spazz-out? Spoiler alert: America is an even worse place than you thought.
https://www.realclearpolitics.com/epolls/other/president_trump_job_approval-6179.html
Mike
In the spring of 2016 (after Justice Scalia’s tragic death) it really did look like Liberals were the ones who were going to have an unstoppable 6-3 majority by this point in time. But fate can play cruel tricks.
Now it wouldn’t be totally shocking if Conservatives end up with that same 6-3 (or even 7-2) majority in the next couple of years.
No matter what happens with the congressional elections …
– Gun control (in virtually any form) is likely dead (especially if one of the 4 liberals is replaced).
– Reforming partisan (and possibly even racial) gerrymandering is dead (at least as a court issue)
– Voting rights restrictions got an even brighter green light
… and of course any laws the religious right can manage to pass (abortion, roll back gay rights, heck they might even try to mandate prayer in schools) will be given a high court rubber stamp.
Boy oh boy do elections have consequences … some more than others. 🙁
@Todd: The old white men of the GOP have been waiting 40 years to roll back the clock to the days of their supremacy. Now they’ll have the chance.
@James Joyner:
How are you defining privacy there? Are you thinking of the right to go about your life without undue interference from the government, or the right to not have a camera in your bedroom?
The former was just assumed by the founding fathers — with the most egregious violations making it into the bill of rights (no quartering of troops, no taking of property for the public use without recompense, and no unreasonable search and seizure). Privacy isn’t a found right, it’s a right so basic that the founding fathers had trouble recognizing it to write down.
Basing the abortion decisions on it was probably a mistake, at least without also explicitly addressing whether a fetus or embryo has rights and how those rights get balanced against the rights of the mother. It created a generation of people who think there is no privacy right because they keep being told this by the antiabortion lobby.
(And on abortion, I would say that we do not compel people to donate organs, even upon death, nor do we even compel people to donate blood — both of which would be a violation of any privacy right despite saving lives, and both of which are less intrusive than compelling someone to carry a child to term)
Live by the sword……..
@MBunge: Hey, if you want to be a religious bigot like your hero, don’t let me stop you…meanwhile…a 43% approval rating? With this economy? Oh yeah, he’s just sooooo popular…sooooo impressive…
@Todd: You forgot to mention the end of abortion and same-sex marriage, if not in the whole country, than in vast chunks of it…
Facepalm.
@wr:
Actually some of the rights on the chopping block affect everyone – privacy ones for instance. People who think their rights are secure are kidding themselves.
@James Joyner: Your stance has cost me a job. There is nothing for me to do with my worthless degree at this point.
You are trolling and it is ugly.
I would never do the same to you were the world to finally decide that military people were no longer useful.
Your position on this is just not justifiable. The changes that have come due to this election and Kennedy’s decision are going to affect you whether you know it or not.
While I am not homeless now, it is a real possibility sooner rather than later.
I know your story. It’s sad that you don’t know any others.
I’m glad that you will always have a job — given that war is the state of humanity.
I lost my job. And anything connected with it is drying up.
Happy trolling, James.
@michilines:
I’m sorry that you don’t have a job and feel your degree is worthless. I don’t know what it is that you did/were training to do. How has my preference for a less activist judiciary led to either of those things?
I opposed Trump and endorsed and voted for Clinton, who won my state. Again, my position here is that a few votes in the Rust Belt and the decision of an octogenarian to finally retire shouldn’t have people in fear for their future. That means that the President and the Supreme Court have too much power.
@Gustopher: The privacy right was found in Griswold, which overturned Connecticut’s ban on the birth control pill. I was born after Griswold and don’t think I’ve ever thought it government’s business whether people used birth control. Nor, however, is there anything in the Constitution preventing the several states from enacting such legislation. (I think there’s a really good case that Congress lacks such power, but we wouldn’t need to create a new right to make that ruling.) But Griswold begat Roe and a string of legislating from the bench as to the limits of this new right. All of these issues should have been left to the political processes of the states.
@James Joyner:
vs.
Yeah, this is totally a troll post in is framing and phrasing.
@SKI: The bulk of the post is about reform proposals. The framing tweaks both Democrats and Republicans–positions of judicial power tend to be about winning and losing, not a consistent institutional view.
@An Interested Party: That was under the grouping of “pretty much any laws the religious right can get passed”.
This court, this term, just decided separate cases that allow discrimination Against Muslims and discrimination By Christians, and the only Justice in the majority who seemed at all uneasy about it is the one who just announced his retirement. They also interpreted the first Amendment to allow lying (by crisis pregnancy centers). It’s ironic that as our country becomes less and less Christian, our laws (at least in red states) are about to become significantly more religiously influenced.
@James Joyner:
While I think that there is a legitimate debate to be had on the power of these offices, I cannot stress enough that the main problem is that the constitution itself created this problem. It allowed a handful of voters to allow the election of a president with a minority of public support to shape another institution for potentially 3 to 4 decades because life appointments sounded like a good idea back in the 1780s.
And I know that you would support changes to the SCOTUS terms of office. I just can’t keep stressing enough for the sake of the broader public conversation that a major reason we are in the place we are right now is that our institutions are not sufficiently representative and empower minorities to make binding decisions for the majority in often very consequential ways. (And for the general context: protecting minority rights, or even making sure minority preferences have influence over decisions is not the same as structurally empowering the minority at the expense of the majority).
To be clear, I think it is highly problematic that a president who could not win a plurality of the popular vote is now in a position to shape the Supreme Court for decades to come.
It is also absurd, for other reasons, that Kennedy served as long as he did, or that Trump’s further influence over the court is now predicated on the health of 85 year-old RGB.
And look, I know a lot of people will say that I am only saying this because it is Trump. But I have been complaining about this general theme for a while now.
@James Joyner: And that framing comes across as incredibly trollish. That is out of your usual character and, bluntly, makes any serious points you wish to make far less effective. Short version: in the future, resist the temptation to be a jerk if you actually want to influence people or engage in a conversation.
That you chose to frame it this way in a subject that has very real consequences for women and minorities but little or none for you, just makes you look even worse.
@Steven L. Taylor:
To further clarify a complex issue in a limiting context: I am not asking for (and have never asked for) pure majoritiarianism. Minority rights must be protected. That is the whole point of the five freedoms on the First Amendment. There are other times in which for a binding decision to be made, minority opinion should be taken into consideration (such as super-majorities needed for treaties or to remove someone in an impeachment process), but all of that is different than a system that actually makes minority power more significant than majority will. That is fundamentally anti-democratic.
@Steven L. Taylor: We’re in agreement that the system is screwed up. But I wouldn’t be much more enthusiastic of this power were vested in Clinton, for whom I voted, and a D Senate.
@george: “People who think their rights are secure are kidding themselves.”
A nice thought, but I’m pretty sure Sheldon Adelson and the Koch Brothers don’t have much to worry about.
@Todd: “It’s ironic that as our country becomes less and less Christian, our laws (at least in red states) are about to become significantly more religiously influenced.”
And not to keep beating the same dead horse. but I have to wonder as a gulf grows between the ones who write and enforce the laws and those who live under them, how long will the governed continue to give their consent, and what happens when this breaks?
We don’t talk much about the political violence of the early 1930s, but it was serious and it was real, and this country was saved by FDR. Had he lost that first election, we might have been looking at rebellion… or revolution. Or a failed uprising put down by increasingly fascist techniques.
@James Joyner:
And that’s where your privilege shows.
A Supreme Court dominated by right-wing ideologues will mean legalized discrimination, financial ruin, and/or death for many.
Literally.
But since you appear to assume that you will not be affected, you feel it’s OK to be “tweaking” people, some of which undoubtedly – perhaps through personal experience – have a better grasp of what is likely to happen.
I don’t think you’re being callous on purpose, but it sure is the impression you’re giving off.
@Steven L. Taylor: To be clear, I think it is highly problematic that a president who could not win a plurality of the popular vote
What in the world is this? Hillary would have been the third Clinton to win the White House with the MAJORITY voting against them. How many Supreme Court Justices would that have been, all based on the wishes of the minority? And of course, there’s George W. Bush being installed in office by an undeniably partisan Supreme Court decision.
Be careful pulling on this thread because you are already almost within hollaring distance of “What’s so magical about 50%+1 anyway?”
Mike
@Steven L. Taylor:
Not just minorities, but affluent, powerful minorities.
I can understand the desire to make money and to keep one’s means of making money. I can’t understand people who are already rich who have the need or desire to screw people over to make even more money.
@drj: To your more general point, throwing away Obamacare will kill people, not expanding Medicaid has killed people, ditching pollution regulations will kill people, and prohibiting legal abortion will kill people.
Republicans don’t care. Stupid people with shitty values. They only have a breakthrough when someone in their immediate family is injured.
“I was totally for stabbing gay people in the face, but then my son came out as gay, and it turns out he’s not being treated well! How did this happen? We need to fix this!”
@Kathy:
The Koch brothers, two elderly dudes worth about ~$100 billion, are organizing to spend hundreds of millions to further pollute and extract and make even more money. That can only be considered mentally disordered.
@drj: A Supreme Court dominated by right-wing ideologues will mean legalized discrimination, financial ruin, and/or death for many.
And pro-lifers would respond that a left-wing ideological Supreme Court has meant…not will mean…HAS MEANT the slaughter of millions of innocent children.
Mike
@MBunge:
If so-called “pro-lifers” want to be taken for humanitarians instead of mean-spirited misogynists, they should start caring about life after birth. Otherwise, they can STFU.
Because if you want to save “innocent babies” and subsequently don’t give a rat’s ass if these kids die from preventable diseases a couple years on, you don’t actually care about anybody’s rights at all.
But, as we all know, you weren’t even trying to make a serious argument. With you, it’s all about distraction, because you got nothing.
@MBunge:
What the fvck are you talking about, you idiot?
Some points regarding Puerto Rico: if it were to be a state its population would rank 30 among states, hardly a small population-the last plebiscite in the island was overwhelming for statehood because of a boycott- the island is probably for statehood today though- to be a state all it would take is majorities in the House and Senate- that’s it!
@James Joyner:
I would feel a little better if the president, regardless of party, at least had majority support.
I would still want to change the SCOTUS appointment process: fixed, staggered terms.
(I would also feel much better than I currently do if the previous president had been allowed to fill a vacancy on the Court, as was his constitutional prerogative).
@MBunge:
I would prefer, as I have noted numerous times, that the president be elected with an absolute majority of the vote.
But, come one, Trump did not even win the plurality of the vote. Yes, Clinton won 43.01% in 1992 49.23% in 1996, but at least he won the most votes (but, again, I would gave gladly had run-offs in both those years).
There is no particularly good argument for allowing the second place winner to earn the prize.
@drj:
I understand your frustration because you thought you had a good argument and I showed you it wasn’t, but let’s stay on point.
You are not the United States. Other people exist. What you’ve felt the last 24 hours, they’ve felt for more than 24 years. You don’t have to like or agree with those people but sometimes they get to win.
If you believe those people never get to win no matter what, that’s not politics. That’s war. And not metaphorical war. It’s “drag you out of your house in the middle of the night and murder you in the street” war. If that’s what you want, you can have it but you won’t get to return it if you are dissatisfied with your purchase.
Mike
@Daryl and his brother Darryl:
Bill Clinton got less than 50% in 1992.
Bill Clinton got less the 50% in 1996.
Hillary Clinton got less than 50% in 2016.
Are you actually THIS ignorant?
Mike
@Raoul:
1) I’m totally in favor of PR becoming a state, but wouldn’t it also require the president?
2) As long as the house, senate, or president is GOP it won’t happen.
@MBunge: They won the plurality (aka, the simple majority) of the popular vote, yes. Which Trump did not do. This is not an insignificant comparison.
You can’t both argue that pluralities are problematic but that second place finishers are a-okay.
@Steven L. Taylor:
You say that now, but watch him do it…
@Steven L. Taylor:
There’s the National Popular Vote Interstate Compact. If it ever gets done (not very likely), and if it then survives court challenges (highly uncertain).
The 2000 Gore vs Bush election was pretty much a technical tie, so having a Bush win in the EC wasn’t too bad or troubling (regardless of the blunders Bush the younger then went on to make). But the 2016 election was far, far from a tie, especially if you count the votes for Stein and Johnson. Therefore Dennison’s EC win was very bad and very troubling, regardless of the blunders the Cheeto continues to engage in.
That does require a Constitutional amendment. Unless the current bouts of norm-breaking evolve into outright law-breaking.
Amending that part of the Constitution will be hellishly hard, given the continued blind reverence of the Founding Fathers (including the Framers of the Constitution)
@Kathy: Trust me, I understand all of the legal/structural and political barriers in question. I was simply sharing a preference.
@Kathy:
Indeed. In fact, we have the hardest constitution to amend of the thirty-one established democracies we classified in ADD.
@Steven L. Taylor:
There’s no good reason except…you know…THAT’S HOW THE SYSTEM IS SUPPOSED TO WORK. IT’S ALWAYS BEEN HOW IT IS SUPPOSED TO WORK.
Our system was designed and built so that would-be political leaders would have to consider the whole country and all of its people (well, all the white male people originally) and not just focus on a particular region or group.
The problem is not the system. The problem is the Democratic Party has not just abandoned whole sections of the country and substantial segements of the population, they have become actively and overtly hostile toward them.
Hillary lost the popular vote in 30 states and lost the overall popular vote if we exclude California. Let’s say we change the rules and Democrats start winning the Presidency despite losing most of the states and losing the popular vote in 49 of the 50 states. Do you really not see where that eventually leads?
Mike
@MBunge:
Except, no. I have written extensively about the design question.
First, the system has never, EVER, worked as designed.
Second, the system was not designed so that a divisive political figure could win with less support than the loser.
Third, even if you want to talk about the magic of the electoral college, the Framers never, EVER, understood that our population would be as mal-distributed in the states as it currently is.
If the EC was designed to take everyone into consideration, it should produce a consensus winner (which it doesn’t).
People matter. Real estate doesn’t.
Where is the conviction about individual rights?
Because they are presiding over the most activist courts that ever were. Scalia, may he rest in constant torment, was the worse when it comes to activism.
Jesus-gawd…they appointed a fvcking President.
Citizens United?
Hobby Lobby?
In the Travel Ban decision they ignored the very rationale for the Gay Baker decision…using selective reasoning to decide in favor of both xenophobia and homophobia…if that isn’t activism what is?
In the Public Sector Union case they ignored deeply entrenched precedent for no particular reason…except continuing the conservatives 35 year war on the middle class.
Now, with another conservative activist…women, minorities, and gay people will be less free.
Take America back, indeed. Back decades…
@MBunge:
BTW: this is nonsense that is induced by thinking about states as binary. States, even the ones that are heavily Democratic have large numbers of Republicans and vice versa. The EC denies the minority (R, D, or third party) a voice. California is not just a lot of Democrats, it is also a hell of a lot of Republicans. The real estate is trumping the voter. I think that that is ultimately indefensible.
@Steven L. Taylor:
Consevative conviction is wholly dependent on circumstance.
@Steven L. Taylor:
Donald Trump did not finish second because we don’t elect Presidents by popular vote. You are taking the results produced under one system and arguing that they would be insufficient under a different system. That is true. It is also a childishly moronic argument.
If popular vote determined the Presidency, Trump would have run a different campaign. Republicans might have nominated a different candidate. Hell, Democrats might have nominated a different candidate considering Hillary spent pretty much all 2015 getting her ass handed to her in the polls by Rubio and Jeb Bush.
To quote a line from a recent “Law and Order” rerun, “I confess. If things were different, they wouldn’t be the same.”
Mike
@MBunge: BTW, kudos for staying in the conversation.
@MBunge:
I get that. That is why he is in the Oval Office.
That doesn’t change the fact that he is empowered by a minority and that part of the reason we are in crisis is that minority power is trumping majority power.
Are you really going to tell me that you would find it just that if HRC had won less votes than Trump and was able to reshape the Supreme Court? (I wouldn’t, btw).
I believe that the president should have to win majority support to serve. I also fully understand it doesn’t work that way.
@wr:
Well, if things completely collapse they could go down too – lot’s of very rich and powerful people found themselves either imprisoned or killed after the Soviet revolution or as a result of Hitler’s rise to power. And if things collapse into WW3, complete with nuclear exchange, I’m not betting much on their chances.
They, and people like ex-Presidents etc have a much better buffer than your average folk, but their power depends on the system remaining more or less as it is now. When society’s collapse power tends to collapse with it.
Obama understood that, its behind his “you didn’t build that” comment that the conservatives totally missed the context of. Koch’s wealth and power is binary digits and pieces of paper, meaningful only as long as society’s consensus is that they have meaning.
@MBunge:
BTW: I understand that as well. I am not arguing counter-factuals, I am arguing about the democratic quality of our current system and its implications.
I know there is no time travel and I also know that the changes I prefer are unlikely. I even understand that I am not persuading you.
At a minimum understand that your base argument is the you don’t really care how or why the system works, but rather that you are simply happy with the current outcomes.
@MBunge:
Um, the alternative (or rather main) rationale is pretty easy to figure out in the cake situation. Maybe you’re not aware of the word discrimination?
@Steven L. Taylor:
If “people matter,” why don’t we just have majority rule? Why do we have federalism? Why do we have states? Why do we let the whims of five unelected judges overrule the will of the majority? Why should the people of Texas let the people of Oregon have ANY say in how Texas is run? I could go on and on.
To win the White House, you have to win the Electoral College. Trump did. Hillary didn’t. Try and figure out why that happened…and the answer isn’t because there’s something wrong with the system.
Mike
Mike
@MBunge:
While, like Steven, I would prefer that we elect our Presidents by popular vote and require a majority to win, I’m sympathetic to the notion that local interests matter. But saying “if we exclude California” is like saying “if we exclude Iowa, Utah, Arkansas, Nevada, Mississippi, Kansas, New Mexico, Nebraska, West Virginia, Idaho, New Hampshire, Maine, Rhode Island, Montana, South Dakota, North Dakota, Alaska, and Wyoming.” Indeed, California’s population is easily larger than all those states combined.
Beyond the rights of women, minorities, and gay people…this SCOTUS appointment will give Dennison his autocracy. He is appointing the people who will determine what happens when Mueller finds him guilty. With a suppine Congress and SCOTUS…he is free to do whatever he wants to whoever he wants.
Watch carefully…you have a front row seat to what will be one of the biggest events in human history…because this is America ending.
@MBunge:
Steven is arguing and I have argued for electing presidents by majority. I would also support doing away with the Senate as it currently exists. Neither is likely to happen but I would prefer that. In either case, though, we wouldn’t have pure majority rule because there is a Bill of Rights and various other restrictions on governmental power.
Many counties have federalism and state-like institutions. Few of them have anything like our system for electing a president and legislature.
As noted in recent posts, I’m not a fan of the degree of power the Supreme Court has assumed. But, ostensibly, they’re the arbiter to ensure that the elected branches aren’t violating the Constitution and to referee between the Congress and the President when they make competing claims. Plus, in recent decades, to enforce most of the Bill of Rights against the states through an expansive reading of the 14th Amendment.
I’m not sure what this means. Texas and Oregon are part of the United States. To the extent we have national-level laws, they’re required to apply to all 50 states equally. My preference is to devolve as much lawmaking as possible to the states.
@Steven L. Taylor:
1. 46% of voters cast their ballots for Donald Trump. That is not a “minority” in the way you are using the word. I’m fairly sure it’s a bigger chunk of the vote than Bill Clinton got in 1992. Hillary Clinton’s popular vote advantage is entirely due to California. Remove it and any state Trump won and he wins the popular vote. Remove it and I think any two states Trump won, Trump STILL wins the popular vote. If Trump made an all-out effort to campaign in California, he wouldn’t win but does he get enough votes to wipe out Hillary’s advantage?
2. Of the popular vote doesn’t matter, why bring it up at all.
3. McConnell was wrong to deny Obama his right to nominate someone. If Hillary were President, she should’ve had the same right. I wouldn’t be happy but I would propose changing the electoral system just because I didn’t get what I want.
Mike
@MBunge:
1. Why should a American Citizen in Wyoming have 3.6 times the voting influence than a voter from California?
2. Because it should matter. That is Steven’s whole point. Ignoring it is fundamentally un-democratic and creates a path towards destabilization and conflict.
3. You seem to be projecting how you think on the rest of us – and ignoring what people are actually saying. Steven has been talking about this stuff in the same way for years and years.
On a broader note and to expand on my response to MB, our democracy is a lot like our health care system – systemically flawed and desperately needing to be adapted to modern reality.
If we ran a poll today, what percentage of the population would self-identify as Americans first and residents of a particular state second versus the converse?
In the 18th or 19th centuries , it may have meant something to consider yourself a member of a particular state first. In today’s interconnected world where people move all the freaking time, it is an antiquated concept.
In today’s world, most states couldn’t survive as a sovereign entity.
Tradition and custom are wonderful things but blind adherence to them can be disastrous. Insisting on the sovereignty of individual states as more important than the rights of the citizens of those states is foolish – at best.
@MBunge:
It is exactly the way I am using the word. He won a minority of the vote cast, both in simple and absolute terms. HRC won a simple majority with 48.02% of the vote. Neither won an absolute majority of the vote.
Because it speaks to the democratic quality of the outcome. As such, it does matter, and matters very much in terms of evaluations. I am obviously not arguing that it has a legal implication. It have very significant democratic implications, however (such as SCOTUS seats).
The first sentence is rather key.
@Steven L. Taylor:
Is there an audio book version?
@MBunge:
Well, bingo (although it is more complicated than that).
Having federalism and states does not mean that the president can’t be elected by majority mechanism. See, e.g., Brazil, Mexico, and Argentina.
Federalism is about managing state-level policy.
Because you need a body to adjudicate disputes and interpretation. And sometimes majority tyranny does need correction (see, e.g., Brown v. Board of Edcuation).
If we are just talking about how Texas is run, probably very little. If we are talking about universal issues that apply to all citizens, probably quite a lot.
Indeed.
And I could note I co-wrote a book about almost all of these questions if you really want more complete answers.
@MBunge:
I get that. But that doesn’t mean that the system isn’t flawed and worthy of criticism. And I didn’t start criticizing it when Trump won.
@James Joyner:
BTW: I am sympathetic to the notion that local issue interests as well, and indeed on your population point.
I would also add to the point: we have a panoply of institutions that support and reflect local interests and the presidency is our only national elected office (in the sense of not representing, in some way, a local constituency). As such, it makes a world of sense that to win that office one should have to win national popular support.
@MBunge:
Actually…
That Trump won despite getting less votes by a substantial number does indicate that something is wrong. We shouldn’t be preferring land or arbitrary lines on a map over the rights of individual citizens.
And please note that I (and many others) was saying something was wrong years ago. This isn’t a new issue for those of us that care about small-D democracy.* If you search the forums here, you will find a number of discussions regarding the National Popular Vote Interstate Compact.
@Kathy:
Unfortunately, no.
@Steven L. Taylor:
This. A 1000 times this.
In my opinion, the best argument in favor of the EC over time is that it has reflected the popular vote. That is, at one point in time it was largely an abstraction that the popular vote and the electoral vote would diverge. It has now done so twice in five cycles. That is indicative of a problem.
@Gustopher:
Yes, but to your point, Congress has given the President significant powers to secure the border however he sees fit. And, as in previous rulings, the Courts have agreed.
And since we’re on the subject…..you did just present a very good argument for President Trump pulling out of the JCPOA. The country is more than just the President. You would do well to remember that.
@James Joyner:
OMG yes. #This
The Left wants a dictator. They just don’t like they guy currently holding on to all that power for which they’ve been fighting their entire political lives.
And clearly this is why people like Kathy want to greatly limit the choices of the people when it comes to elections.
@george:
Good thing we have the Second Amendment and all those AR15s then, eh?
@SKI:
Why does a person in Rhode Island have way more voting influence than a voter in Texas?
(And yes, I’m too lazy to do the math right now.)
Last year I drove back to Florida from Seattle. 3,000 miles. You know what’s in Montana, South Dakota, Nebraska, Kansas, Missouri, etc?
Corn. Soybeans. Dirt. Rocks. And that’s pretty much it. The idea that those 5 states should get 5 times the representation California gets in the Senate is lunacy.
@Steven L. Taylor: At a minimum understand that your base argument is the you don’t really care how or why the system works, but rather that you are simply happy with the current outcomes.
This system put Donald Trump in the White House. I am not happy with that, though if we continue with 4% economic growth and the other positives outcomes of his administration I might change my mind.
The difference between the two of us is I understand why Donald Trump got elected. You don’t understand and you don’t want to understand.
Trump won. He played by the rules and met all the requirements. What is the point of inventing new rules and new requirements that YOU ADMIT likely will never become law? The only purpose is to challenge the legitimacy of Trump’s election even though it is completely legitimate.
This is why I don’t waste more of my time here. I mean, is Donald Trump to be faulted because he was smart enough to know wasting time and money in California was irrelevant to him winning the election? Would we be better off with someone too stupid to know places like Wisconsin were important to her winning the election?
Again, the problem is NOT the system. Barack Obama won clear majorities of the popular vote and the Electoral College under this system. The problem is stupid decision-making by the Democratic Party, both consciously and unconsciously. And the problem is people like you who’ve had three years to come to terms with the Trump Era and instead waste your time trying to wish it all away.
Again, look at Trump’s approval ratings in the wake of the family separation spazz-out. What you’re doing is not working.
Mike
@TM01:
Planning on shooting down nuclear weapon tipped ICBM’s with AR-15s? Good luck with that.
@SKI:
There is an increasingly common rhetorical pattern where a person goes, “I’m not X, I’m just long explanation that is pretty much the dictionary definition of X”.
It drives me nuts.
@TM01: “The Left” doesn’t want a dictator. Meshuggenah liberals and extreme centrists do.
@teve tory:
One of these things is not like the others. As a lifelong resident of the formerly great state of Missouri, I’d suggest you stop in St. Louis and KC the next time you have to drive across the country. You might find something beyond corn, soybeans, dirt, and rocks. And I suspect that Montana, South Dakota, and Nebraska might also have something to offer, though I’m with you on Kansas. Eff Kansas.
Having said that, I agree with your underlying point. We ought to quit pretending that every decision of the Framers was a divinely inspired stroke of genius. The Electoral College has never worked–not one single time–the way the Federalist Papers suggested it was supposed to work, and it didn’t find it’s way into the Constitution because of Divine Providence. We got the Electoral College out of the same kind of political horse trading that gave us the 3/5 of a person rule, and for many of the same reasons. It’s long past time that we recognize that giving voting power to dirt is not much more of a basis for a system of government than strange women lying in ponds distributing swords is.
@Guarneri: You have no sense of irony do you? Taking up the sword immediately after warning others of the consequences? Breathtakingly hubristic!
I’ve driven through St. Louis twice in the last three years. I understand there are good parts of it, and when I was a kid I even went up in the Arch. That was neato! The thing sways back and forth a few inches 😮 But for whatever reason the parts I’ve gone through lately have looked like a bombed-out war zone. I noticed several obvious unlicensed pharmacists on several street corners. 😛
South Dakota straight across on I-90…man that was just desolate.
@Roger:
😛 😛 😛
@drj: I don’t think it’s intentional. Dr. Joyner has published several posts in the past several weeks where his snarky tone made me think “old man shouting at clouds.” He’s not good at satire but doesn’t realize it.
The Franzen one and the one about pro-choice Republicans are two good examples IMO. Waste of bytes that could have been used for more important ideas.
@MBunge: Ummm… because Bill + Bill + Hillary does not add up to three [separate] Clintons?
Just sayin’…
@TM01:
I’m not seeing why his statement makes your claim true. Please elaborate.
[Yeah…like THAT’S gonna happen…]
@TM01: And so, you guys decided to elect someone who is more likely to want to be dictator? Again, I’m not seeing the rationale.
@MBunge:
I know that 4% growth was promised, but we have not had 4% growth.
2017 grew at an annualized rate of 2.3%
Last two quarters from BEA:
So, I am not sure where the 4% number is coming from.
@MBunge:
His approval numbers, as averaged by RCP, is 43.4%, that’s kind of terrible given the unemployment rate and decent, but not anywhere near 4% growth.
Historically, he is quite unpopular.
If you really do believe that he is widely popular and that the GDP growth rate is 4%, then I guess I understand why you think we critics are off the mark.
@Just nutha ignint cracker: Three separate elections, to be fair.
@MBunge:
No, he is not and yes, he was correct in those choices.
None of that gets to the point of my position (which, again, pre-dates Trump–I just think that Trump helps illustrate some of the things I have been talking about for years).
@MBunge: “This is why I don’t waste more of my time here.”
Dude, you’re on here multiple times a day every day. You could only spend more of my time here if they opened a drive-through window so you could eat at the same time.
@TM01:
They shouldn’t. That is part of the point. I don’t care about the D/R issue here. I want every voter to count the same when it comes to electing the president.
@george:
Putin’s Russia is probably a better example. It seems to be what they want. But some other wannabe oligarch with more and better thugs, or better bought judges, could take them down. Or someone with better ties to the autarch. Or the autarch could see them as a threat.
@Steven L. Taylor: Your patience is impressive. But wasted on a hopeless pupil.
@MBunge:
Fun game. If we just let the South secede again we’re not talking about the Electoral College installing Bush (2000) or Trump (2016) as minority elect presidents, are we?
@Steven L. Taylor:
If you want to more generous to him, by all means do so. I’m going to take his words at literal value and point out that he has–once again–misspoken. Three Clintons have not run for office! He needs to learn how to count–and think.
@gVOR08: He did try and engage far more than usual, so he deserves some credit for that. Also: this really is something I have been very actively thinking about for a while now, so it is not hard to discuss and I really, really hope that others at least think about it as well–even if they do not come to the same conclusions I have.
@al Ameda: Yeah, that whole pretending like number of states is more important than number of voters is just plain frustrating.
@teve tory:
And yet you continue to wonder why Trump won, you arrogant, elitest piece of shit.
@Just nutha ignint cracker:
Please, tell me what ACTUAL actions Trump has taken that are dictatorial.
@James Joyner: I lost my job because fewer people are willing to come here to study. My degree is worthless not because I “feel” it is, but rather because it is. It’s something that others have mentioned. Why come to the U.S. to study or to work? This country has always been a place to come and make your dream. That is not true anymore. I wouldn’t be surprised if the number of international students coming to study here reduced to a trickle. It’s already lower and this court decision will reduce it even more. Why come to a place that is difficult to live or study in? Whether you like it or not, your political stances have made it easier for people to choose NOT to come to this country to work or study.
You have job security. I just never thought that my country would come to this point. You’re trolling this is just an insult.
@michilines:
I don’t know what your degree is. I have no doubt Trump’s policies are making fewer people want to come here and harder for some to come whether they want to or not.
I don’t understand what you’re arguing here. I opposed Trump throughout the GOP primaries and endorsed and voted for Hillary. I’ve opposed most of Trump’s policies, certainly including his Muslim ban. And, while I generally think judges ought defer to elected policymakers in areas where they have clear authority—as Presidents do, both statutorily and Constitutionally on immigration and border security—I argued that the majority got it wrong in this instance, given Trump’s blatant declarations that it was a Muslim ban, they should have overruled it.
@MBunge: “This system put Donald Trump in the White House. I am not happy with that”
You certainly have a fascinating way of demonstrating that. One would think that the posting of six zillion messages to the effect of “Trump my lord and my king and he will rule forever!!!!!” would suggest some small amount of satisfaction. Go know.