Wednesday, December 31, 2008

Governor's choice vs. people's choice

Articles like this one have appeared, suggesting that Illinois Governor Rod Blagojevich's selection of Roland Burris to fill Barack Obama's Senate seat cannot be blocked by Congress. Writes David Savage, the author of the piece:

"Senate Democrats threatened this week to refuse to seat any new Illinois senator chosen by embattled Gov. Rod R. Blagojevich, but it is not clear the senators have the legal authority to reject a fully qualified appointee.In 1969, the Supreme Court ruled that the House of Representatives could not refuse to seat Rep. Adam Clayton Powell Jr., a New York Democrat who was accused of putting his wife on the payroll and misusing travel funds to vacation in the Caribbean. Despite those charges, he had been reelected by his constituents in Harlem.

'The Constitution does not vest in the Congress a discretionary power to deny membership by majority vote,' wrote Chief Justice Earl Warren. Congress may 'judge only the qualifications set forth in the Constitution,' he said.The qualifications are minimal. A senator must be at least 30 years old, a U.S. citizen and 'an inhabitant" of the state.'"

Fine--but let's take a closer look at Powell v. McCormack, 395 U.S. 486 (1969). Let's get this out of the way first: it was a seven to one decision not a seven to two decision. has a quote in their piece on the matter that is inaccurate on this point; I don't see what their source is for this. But here you see that only eight justices participated and only Justice Stewart dissented. (It would have been funny if alluding to his most famous remark, he had written "Like pornography, I can't describe tainted elections, but I know one when I see it!" (See Jacobellis v. Ohio, 378 U.S. 184, 197 [1964]).

That's trivial; more significant is something Warren wrote on page 522 of the Powell opinion:

"Our examination of the relevant historical materials leads us to the conclusion that petitioners are correct, and that the Constitution leaves the House without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution."

The emphasis is, of course, mine. And look at how Justice Douglas began his concurrence, on page 553 of the opinion:

"The possible list (of cases where Congress might refuse to seat a member) is long. Some cases will have the racist overtones of the present one. Others may reflect religious or ideological clashes. At the root of all these cases, however, is the basic integrity of the electoral process. Today we proclaim the constitutional principle of 'one man, one vote.' When that principle is followed and the electors choose a person who is repulsive to the Establishment in Congress, by what constitutional authority can that group of electors be disenfranchised?"

Again, my emphasis. At this point I hope you can see where I'm going with this: the situation in Illinois where the Governor is appointing somebody to represent the state in the U.S. Senate is not the same as the situation with Congressman Powell. There is a big difference between Congress using its Article I, Section 5 power to declare a representative disqualified when he won an election, and using that same power to rule disqualified a man appointed by a governor who was recently arrested and may shortly be indicted.

In the hotair article I've linked above, Ed Morrissey writes:

"In this case, it’s even less likely that (Senate Majority Leader Harry) Reid could withstand a court challenge. No one has accused Burris of wrongdoing or unethical behavior."

Yes, but that's the point: it's not about whether Roland Burris is qualified to sit in the Senate, it's whether the man who put him there was qualified to do so. And while Reid still might lose such a challenge, based on what I've presented here, Reid can certainly say that the Powell case is not on point with what's happening in Illinois. There is a vast difference between arguing that one man is an incompetent fool and proving that thousands of voters are incompetent fools.

Recession reading during a recession

Here are two excerpts from nonfiction books, and one from a very prose like poem, that I'd like to share. All of them relate to economic downturn. All were written well before the current flat economy, but I think they all have a great deal of relevance to what's going on now.

"The intoxicating economic expansion of the Age of Capital came to a wrenching halt in 1873. In September, Jay Cooke and Company, a pillar of the nation's banking establishment, collapsed after being unable to market millions of dollars in bonds of the Northern Pacific Railroad. Within days, a financial panic engulfed the credit system. Banks and brokerage houses failed, the stock market temporarily suspended operation, and factories began laying off workers... In a way, it was fitting that the Northern Pacific's financial problems triggered the Panic, for if the railroad boom nourished postwar growth, the network's overexpansion, paid for by an outpouring of speculative credit, created a financial house of cards whose eventual collapse was only a matter of time. By 1876, over half the nation's railroads had defaulted on their bonds and were in the hands of receivers." Foner, Reconstruction: America's Unfinished Revolution, 1863-1877, 1988, p. 512.

Change "railroad" to "subprime mortgages" in these sentences, make "Jay Cooke and Company" into "Lehman Brothers" or "Bear Stearns" and it sounds an awful lot like 2008, no?

Second excerpt:

"A panic, in a word, is a species of neuralgia, and according to the rules of science you must not starve it. The holders of the cash reserve must be ready not only to keep it for their own liabilities, but to advance it most freely for the liabilities of others. Thy must lend to merchants, to minor bankers, to 'this man and that man,' whenever the security is good. In wild periods of alarm, one failure makes many, and the best way to prevent the derivative failures is to arrest the primary failure which causes them... The problem of managing a panic must not be thought of as mainly a 'banking' problem. It is primarily a mercantile one. All merchants are under liabilities; they have bills to meet soon, and they can only pay those bills by discounting bills on other merchants. In other words, all merchants are dependent on borrowing money, and large merchants are dependent on borrowing much money. At the slightest symptom of panic many merchants want to borrow more than usual; they think they will supply themselves with the means of meeting their bills while those means are still forthcoming. If the bankers gratify the merchants, they must lend largely just when they like it least; if they do not gratify them, there is a panic."
Bagehot, Lombard Street: A Description of the Money Market, pp. 51-52 of the Wiley Investment Classics edition (work first published in Great Britain in 1873--the same year the Panic in America began).

In a time like this we could sure some clear, Walter Bagehot type thinking about how panics--or as we now call them, recessions--can be softened by clear, logical policies rather than rash acts that make everybody think the financial sky is falling. I don't mean to propose Pollyannish optimism, but in times like these bad news feeds on bad news. My guess is that after January 20th, the New York Times and the Atlanta Journal-Constitution will suddenly decide that hey, maybe things aren't so bad after all--look what the money spent during inauguration week did for Washington D.C.'s economy! Some company or companies will decide the NYT and the AJC are onto something; they'll think maybe they don't need to maintain such grim projections for 2009, then some Wall Street maverick will advocate investing in stock of those companies, and all of a sudden we're looking up.

And that, finally, brings me to the third excerpt. Carl Sandburg in 1936--again, during hard times--published The People, Yes which includes the poem "They Have Yarns" My favorite of the yarns is:

"One of the oil men in heaven started a rumor of a gusher down in hell. All the other oil men left in a hurry for hell. As he gets to thinking about the rumor he had started he says to himself there might be something in it after all. So he leaves for hell in a hurry."

Alas, then there would be no oil men left in heaven to take advantage of the great business opportunity if a gusher suddenly appeared beyond the Pearly Gates. And I'll bet you anything that somewhere, right now, some enterprising person is poised to prosper from seizing an opportunity no one else is around to pounce on. He or she, and others like him or her, will be the trailblazers towards recovery.

Tuesday, December 30, 2008

A few more Congressmen

The basis for apportionment of members of the House of Representatives following the 1910 census was approximately one congressman for every 212,000 people (Corwin, The Constitution and What it Means Today, 1978, p. 11). If we had one member of the House for every 212 K heartbeats today, do you know how many congressmen that would be? It would be one thousand, four hundred, forty-one representatives--in other words, greater than a thousand more congressmen than we actually have.

No, I don't think it's a good idea to have 1,441 people in the House of Representatives. But you know, I think it is certainly arguable that the 435 seats we've got there are too few. This occurs to me every time I see an article like this one in which experts are quoted predicting that as a result of the 2010 census, Illinois, Massachusetts, Michigan, Ohio, and other eastern and Midwestern states will lose a seat or two while Florida, Texas, Nevada, Utah, and my Georgia will pick up the seats lost up north.

Is there anything magical about the number 435? No--but what is somewhat remarkable is that we've had that number of congressional seats for ninety years now. It was on June 18, 1929 that Congress passed a law fixing the House at 435 members (Corwin, p. 11). The important point to remember is that this was a simple legislative act, not something mandated in the Constitution.
Thus it can be changed--and if I were advising President-elect Obama, I'd suggest that he recommend to Congress they expand the House. He's always talking about making government more transparent and accountable to the people; I think decreasing the ratio of congressmen to inhabitants would help accomplish this.

Look at it this way: as we've seen, a hundred years ago there was a representative for every 212,000 Americans. The basis today is one representative for every 702,250 Americans. So the ratio has more than tripled.

Or check out Article 1, Section 2, requiring that "the number of Representatives shall not exceed one for every thirty Thousand." You think a few of the men who signed the Constitution might be a bit stunned at a number of representatives that doesn't exceed twenty-three times thirty thousand?

No, I'm not going to make the other argument that sometimes gets made in favor of expanding the House, namely, we should do it because our House of Representatives is smaller than corresponding bodies in other democracies. The House of Commons in the United Kingdom, this line of reasoning goes, has over two hundred more seats than our House of Representatives, and the U.K. has a lot fewer people than the U.S., so our number of seats should increase.

The problem with this thinking is that the U.S. is quite dissimilar from the U.K. and most other democracies in that we have sub-units of government--the states--with a lot of autonomy, and so we're all represented in government by both state and national figures. Maybe Montana should have more than one Congressman, but even in our era of expanded federal government the assembly in Helena takes care of a lot of the needs of the citizens. (Montana has 50 state senators and 100 state representatives.)

But just because I find the comparison to the Parliament argument unsound, I agree with its conclusion, that the bloated ratio of representatives to represented deserves attention.

Now at this point, if I was an MIT grad I'd offer some complex logarithm to determine exactly how many Congressmen we should have. Well never mind the Massachusetts Institute of Technology, I probably couldn't even get into the Virginia Institute of Technology, and they admitted Michael Vick. I don't have any complicated formulas to share.

But I didn't want to just write something arbitrary like "We need about another two dozen seats," I needed to come up with something tangible, no matter how simplistic. So let's look at it this way. First, it's fine to speak of number of representatives per such and such a number of people, but each member of Congress serves those living in a particular state. It's no matter that the Chicago metropolitan area extends into Indiana, they can't make a congressional district that includes Gary and parts of Chicago's south side. Furthermore, each state must have at least one representative, so even if there is one seat in Congress for every 700 thousand folks, Wyoming still has to have one for its 523 thousand people.

Now let's go back to nearly ninety years ago when the number of seats was set at 435. At that time there were only forty-eight states. If you divide 435 by 48, you get 9.06, meaning the average state in 1930 would have nine representatives. But in 1959, we added two states, so now the average state has only 8.07 congressmen.

Well what if instead of debating ratios of seats to citizens, we simply took the pre-1959 ratio of seats to states as our guide? Multiplying 9.06 times 48 gets you 434.88 seats, which is what we've got now considering you can't have 0.88 of a congressman (literally, I suppose figuratively many Congressmen aren't quite all there). But if you multiply 9.06 times 50, you get 453--a whole number, even!

So that's my proposal. Increase the House of Representatives by eighteen seats to 453. Oh, and if you're worried that apportionment will put all eighteen of them in Texas and Florida, Congress could help out a bit by saying that every state with over seven hundred thousand people gets at least two seats in Congress. That would reduce the number of states currently having just one congressional seat from seven to four--congratulations Montana, Delaware, and South Dakota, you each pick up an extra congressman. Please select carefully; we've got enough corrupt ones.

Tuesday, December 23, 2008

The stockings were hung by the chimney with care/ In the hope that Alabama secessionists soon would be there!

Here is a book on my "must read" list. Author Stephen Nissenbaum apparently makes the case that Christmas wasn't a big deal until well into the nineteenth century.

You know how I already knew that? Because the vote in Alabama for delegates to a convention considering secession from the United States took place on December 24th, 1860! (Potter, The Impending Crisis, 1976, pp. 491 & 496). Imagine expecting folks to go out and cast ballots on Christmas Eve. If they really cared much about Christmas and what it stands for--peace on earth, good will towards man--I think they would have put this off until after the Super Bowl.

I'm kidding, of course, I know the Super Bowl didn't start for another century after the Civil War. But for me there is a bit of an analogy there. If it seems preposterous today that there ever was a time in this country when Christmas was a minor occurrence, all of us who are old enough to have lived through every Super Bowl know that Super Sunday was essentially a triviality until the 1980s--and you can find people in their twenties amazed to hear that.

I was a senior in college in January of 1981, when my roommate's friend invited me to a Super Bowl party at his place. I was puzzled. A party centered around the National Football League's championship game? I'd never heard of such a thing. But I went to the gathering, drank lots of beer, and saw the Oakland Raiders beat the Philadelphia Eagles in Super Bowl XV.

And so history moves ahead. There may come a day people are surprised to learn that Christmas once was as big as Super Sunday.

Monday, December 15, 2008

Correction on the meeting of electors

I messed up in an entry last week. I wrote:

"When the Constitution was but a few years old, Congress passed the Presidential Election and Succession Act of 1792 (Currie, The Constitution in Congress: The Federalist Period, 1997, pp. 136-37). This provided that the electors--the people who form the electoral college that formally selects the President--would meet on the first Wednesday in December of an election year. "

I knew the electors still met in December, but I made the mistake later in the essay of assuming that this was still the case. It's not; they now meet the first Monday after the second Wednesday in December as per Title 3, Section 7 of the U.S. Code.

In other words; the electors met today. Big news! Obama won.

I much regret the error.

Wednesday, December 10, 2008

Scene from a typical sixth grade classroom in Peoria

(Fade in with dramatic music.)

Teacher: Class, what do we call the man who heads the government here in Illinois? Conner?
Conner: We call him the Governor, Mrs. Lincoln-Grant!
Teacher: That's right! And what does the Governor of Illinois do? Dakota?
Dakota: He goes to jail!

(Fade to black, I walk into the scene.)

Brett: Hi, I'm Brett from Brettsconstitution, and I'd like to talk to you about a very serious problem. You see, tens of thousands of Illinois children grow up thinking it's natural for governors to go to prison. It breaks your heart to look into their beautiful faces and see a sense of hopelessness, knowing that the man who they should be looking up to today will be making their mom and dad's license plates tomorrow.

That's why I'm proud to be spokesman for the Foundation Advocating Reduced Tenure for Illinois Nefarious Governors--FARTING. We at FARTING pledge to educate every Illinoisan--from Galena to Golconda, from Elgin to Effingham--so they understand that it simply isn't normal for your top state official to go directly from the State House to the Big House. We promise that we will make certain every last citizen in the Prairie State learns that outside of Illinois, mostly what governors do is what the Good Lord intended--they cut ribbons to open highways and make bets with rival state governors on college football games.

Now naturally, this kind of work takes a great deal of time and resources. Won't you help us at FARTING as we undertake our dedicated and significant mission? Remember, those kids in Illinois are counting on you. Please give generously to FARTING. You can make a pledge at our website Or call us at 217-782-0244.

Thank you, and God bless.

(End spot.)

Tuesday, December 9, 2008

The lame duck may be a silly goose, but not because of the Constitution

"By 1860, the colors were set. The quadrennial choosing of a president was accomplished in the context of a ritualized 'campaign,' which began in the summer with the national conventions and ended in November with the election." --Potter, The Impending Crisis, 1976, p. 407.

Recently Dan Rather appeared on MSNBC and opined that we have too long a lame duck period between departure of a sitting President and inauguration of a new one. He favors having the incoming chief executive take the oath of office on December 1st.

This is one of those interesting cases where somebody calls for a specific answer to a perceived problem that would require a constitutional amendment, but the general difficulty he identifies could be repaired by the much simpler means of a couple of acts of Congress. Obviously, since the Twentieth Amendment states clearly that the term of a President ends "at noon on the 20th day of January," Obama couldn't have been sworn in last week, because Bush has to stay put another several weeks. (This is a digression, but is anybody besides me surprised that in the official government copies of the Constitution, the date is written as "the 20th day of January" instead of "the twentieth day of January"? Doesn't the long form seem more appropriate for a grand document like the U.S. Constitution?)

But while the Constitution says a president gets sworn in on 20 January (another way to write it!), nowhere does it mandate that he has to be elected in November. Here is all it has to say on the matter:

"The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States." (Article II, Section 1)

When the Constitution was but a few years old, Congress passed the Presidential Election and Succession Act of 1792 (Currie, The Constitution in Congress: The Federalist Period, 1997, pp. 136-37). This provided that the electors--the people who form the electoral college that formally selects the President--would meet on the first Wednesday in December of an election year. The Constitution leaves it up to each individual state to determine how to choose those electors. There is no requirement that states let the people at large vote for them; as late as 1860 South Carolina's electors were chosen by the state legislature instead of by popular election (Amar, America's Constitution: A Biography, 2005, p. 158). Oh well, Lincoln probably wouldn't have gotten any votes there anyway.

But while there is no constitutional mandate how electors are picked--today obviously in all fifty states it's by popular election--note that Article II, Section 1 does say Congress can prescribe when the electors are chosen. And so we have Title 3, Section 1, of the United States Code:

"The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President."

Do you see where I'm going with this? There are four significant dates for electing a president. First you have the Tuesday after the first Monday in November when many of us went to pull levers marked "Obama" or "McCain." Then comes last Wednesday when the electors met and it's all so routine and such a formality in our time that nobody even takes note. Then there is a day in January shortly after Congress convenes on January 3rd in which the House and Senate open the sealed envelopes delivered to them and officially count the electoral votes. (That's one reason why the Twentieth Amendment provided that a new Congress is sworn in seventeen days before a new President; obviously the new House and Senate must be in place to officially declare who they are going to be sending bills to for the next four years.) And then finally, on January 20th, Obama will put his hand on a Bible and Chief Justice Roberts will swear him in.

But remember: only the last two dates--the January ones--are required by the Constitution. In other words, if a majority in Congress agree that the lame duck period of an outgoing President is too long, they can't do anything about moving up the inauguration, as that would take a constitutional amendment needing two-thirds of Congressional approval and a possibly lengthy ratification process needing three-fourths of the states. Congress could, however, simply decide to change the first two dates.

They could say that instead of going to the polls on the Tuesday after the first Monday in November, we do it on the Tuesday after the first Monday in December. Then, of course, they'd need to also push back the date the electors meet, maybe make it on January 3rd with a requirement that they get the sealed envelopes to Congress within three days, which wouldn't be a problem for Fed Ex. Congress would still have plenty of time before January 20th to officially tabulate the results.

Now I should jump in and say that I'm only telling you what Congress could do about the long lame duck period, and how to potentially reduce it dramatically without needing a constitutional amendment. I'm not saying they should do this. There would be a couple of obvious problems with having us voters go to the polls in December. The weather in many parts of the country will likely be worse than in November; this could depress voter turnout. By the day after Thanksgiving we're all thinking about the holidays--or, if we're radical atheists, about how we can kill everybody's joy during the holidays--so I don't see a lot of people enjoying the idea of taking a break from Christmas shopping or chugging eggnog to go vote for the guy who gets to pull the lever to light Washington's giant Christmas tree. And then there is the not so small matter of what happened in 2000 when we wondered if there would be enough time between early November and January 20th to figure out who the hell the President was. Imagine the chaos if we condensed the lame duck period another month should we ever experience another debacle like Bush vs. Gore.

And that observation reminds me: does anybody remember in 2000 Dan Rather complaining that it was taking too long for George W. Bush to succeed Bill Clinton?

Saturday, December 6, 2008

A convention to end Prohibition? I'll drink to that

"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution... which... shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress..." (Emphasis mine, U.S. Constitution Article V.)

You may have seen in the news that yesterday was the seventy-fifth anniversary of the ratification of the Twenty-first Amendment, which repealed the Eighteenth Amendment and ended Prohibition. Something that doesn't often get mentioned is that the Twenty-first was the only amendment which was ratified by ad hoc conventions consisting of specially elected delegates. All the other amendments were ratified by the legislatures of the several states (Anastaplo, The Amendments to the Constitution: A Commentary, 1995, p. 203). Congress chose the convention route because in those pre-Baker v. Carr days rural areas, in which anti-liquor feelings were strongest, tended to have the majority of representatives in state legislatures. Special conventions in which delegates were elected to vote on one and only one issue were more likely to vote in favor of ending Prohibition, and that is ultimately what happened.

In discussing this, Anastaplo makes an interesting argument about a famous proposed amendment of the 1970s that failed to pass:

"If the proponents of the Equal Rights Amendment had anticipated in 1972 the organized resistance they eventually encountered, they would have been well-advised to have chosen the State-conventions mode of ratification. This would have permitted, in effect, a national referendum on an issue that women, as voters, probably could have controlled instead of having to rely upon largely male State legislatures elected in other circumstances and on other issues." (p. 203)

Thursday, December 4, 2008

Runoffs and term limits

Except as otherwise provided in this Code section, no candidate shall be nominated for public office in any primary or special primary or elected to public office in any election or special election unless such candidate shall have received a majority of the votes cast to fill such nomination or public office. In instances where no candidate receives a majority of the votes cast, a run-off primary, special primary runoff, run-off election, or special election runoff between the candidates receiving the two highest numbers of votes shall be held." -- Official Code of Georgia Annotated § 21-2-501(a).

... And this is why, in the four weeks between the November election day and this past Tuesday, every night when I got home from work there were robot messages on my voice mail. I had Saxby Chambliss asking me to vote for him, Mrs. Chambliss requesting that I support her husband, President-elect Obama encouraging that I vote for Jim Martin--you name it, if it was a robot call I got it.

Well it's all over, and Chambliss will return to the Senate to represent the people of Georgia. What's intriguing to me is the difference between my state and Minnesota, the other state without a clear result in their senate race on November 4th. It looks now as though Norm Coleman will prevail, but if you take a look at the vote totals from the Land of a Thousand Lakes, you see that neither Coleman nor Al Franken got anywhere near a majority of the vote. In other words, if Minnesota had Georgia's law about elections, all this talk about recounts and court challenges up there would have been moot--Coleman and Franken would simply have had to square off again the way Chambliss and Martin did.

Now I'm not going to argue that Minnesota should adopt our law; that's for the people up there to decide. But what I would like to call your attention to is the way in which the difference between what's happened in Georgia and Minnesota in regard to the senatorial elections casts some doubt on the wisdom of a U.S. Supreme Court decision.

In U.S. Term Limits v. Thornton, 514 U.S. 779 (1995), the high court struck down--by a bare majority--an amendment to the Arkansas state constitution, adopted by the voters, to enforce term limits on the state's representatives in Congress. Writing for the majority, Justice Stevens held that the clauses in Article 1 of the U.S. Constitution spelling out the qualifications for members of the House and the Senate are complete as they stand, and that individual states cannot alter them. As Stevens put it:

"Permitting individual States to formulate diverse qualifications for their representatives would result in a patchwork of state qualifications, undermining the uniformity and the national character that the Framers envisioned and sought to ensure." Thornton at 822.

In other words, a member of the House of Representatives has to meet three and only three criteria: he must be at least twenty-five, he has to have been a U.S. citizen for at least seven years, and he must be an inhabitant of the state he's trying to get elected to serve (Article 1, Section 2). That's the sum of it, ruled the majority, a state can't say that there is any additional requirement a candidate must meet. To require, as the Arkansas amendment did, that someone could only be a Congressman if he hadn't been one for three terms already, would be adding a qualification.

Balderdash, wrote Justice Thomas for the four dissenters. He viewed the qualifications as minimum standards set by the federal government, not an exclusive clause denying any state power to add further requirements. Furthermore, Thomas argued, states had, in fact, been adding qualifications to those spelled out by the Constitution long before the term limit controversy arose. Thomas noted that Florida disqualified anyone from Congress if they had been found mentally incompetent, Illinois law said no one could serve if they were currently in prison, and Georgia required that its congressional candidates not have been convicted of vote fraud (Thornton at 917). Did the majority mean that these additional qualifications added by individual states were also unconstitutional, Thomas wondered? (One might cynically wonder how many people actually serving in Congress are mentally incompetent, have stolen votes, or will eventually wind up in prison.)

But what struck me about Thomas's dissent was that he didn't mention anything about states like Georgia having runoff elections. Isn't that a case of individual states adding qualifications? The federal Constitution says nothing about runoffs, and a lot of states don't have them. It appears that Norm Coleman will become the next Minnesota senator even though he received less than 42% of the vote. Saxby Chambliss, on the other hand, got 49.75% of the vote the very same election, beating Jim Martin by over a hundred nine thousand votes, and yet he had to jump through another hoop, defeating Martin again in a runoff. So the candidate in Georgia has a hurdle to clear that his counterpart in Minnesota, where only a plurality of the vote is required, does not have to leap. Those are differences between the two states well beyond anything said in the Qualifications Clauses of the U.S. Constitution--a "patchwork of state qualifications" as Justice Stevens might say.

I think it's debatable that term limits are "qualifications" at all, based on the plain meaning of the word. But if you say that term limits ARE a qualification, it's difficult for me to see that requiring a runoff for any election where no candidate received more than fifty percent plus one of the vote isn't a qualification also.

Wednesday, December 3, 2008

Who should be the new Illinois senator? Isn't it obvious?

You may have heard that the great state of Illinois is in need of a new U.S. senator. Something about one of their current ones having to move to a big house in Washington, D.C. So it's up to the Prairie State's governor, Rod Blagojevich, to stop defending himself from charges that that's not his real hair and appoint someone to fill out the remainder of the vacant term.

Well, if I was Illinois governor, I know exactly what I'd do. I'd pick up the phone and say, "Oprah, the job is yours if you want it."

No, I'm not kidding. If you say someone shouldn't be Illinois senator just because she is a celebrity, I would counter with the little fact that California has, in my lifetime, had two governors who basically got the position based on their Hollywood credentials. And for goodness sakes, Al Franken has apparently missed becoming Minnesota's senator by a couple of hundred votes; his only political credentials are being a celebrity and a second-tier one at that. I'll no doubt be blasted for writing that by people who think I'm too generous calling Franken's fame "second-tier."

And look what's in it for Oprah. She gets to be near the guy she helped reach the Oval Office. She will easily be the biggest star among the 535 people in Congress. (That would be true even if Hillary Clinton had declined to be secretary of state and remained in the Senate.) Plus, Oprah's been at her present gig for a long time now; she may be getting tired and want to try something new. Her ratings have been dropping as more and more people turn to Ellen for their daytime talk. This wouldn't be a bad time to get out of the TV racket; why not emulate Sandy Koufax and go out on top?

What do the good people of Illinois get out of this? You folks get the senator who is going to be listened to the most, the one all the Sunday morning shows rush to book to talk about mundane issues like the federal budget.

The only downside I see for anybody is that Oprah obviously would take a pay cut the likes of which planet earth has perhaps never before seen. But seriously, at this point couldn't she live about nineteen lifetimes and not spend all she's already got?

I think Illinois Representative Bobby Rush will be pleased to endorse my suggestion.

Edited to add: hello to Hot Air; many thanks to the site for the link and to the Hot Air readers for their comments!

Monday, December 1, 2008

Wrong woman two heartbeats from the presidency?

"Goofs for 'The Wild Wild West' The Night of the Skulls (1966)
Factual errors: The Secretary of State is constantly being mentioned as the successor to the Presidency in the event something happens to the President and Vice-President of the United States. This is incorrect. In the 1870s, succession was determined by the Presidential Succession Act of 1792, in which the Senate president pro tempore was next in line after the vice president to succeed to the presidency, followed by the Speaker of the House. (The order of succession would change in 1887 and 1947.)"

Isn't it kind of impressive that someone actually noticed that error in an episode of "The Wild Wild West" and that furthermore, he or she posted it on the website? No, it wasn't me; I wish it had been. The series fan who shares this information makes one small error himself: the order of succession changed in 1886, not 1887 (Amar, America's Constitution: A Biography, 2005, p. 172).

Professor Amar's synopsis of presidential succession is worth note, because he argues that the 1947 act, still in force, which makes the Speaker of the House third in line for the presidency, is unconstitutional. Amar makes this case by focusing on one word in Article I, Section 1; I've highlighted that word:

"In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected."

Here's a look at Amar's argument against our current line of succession:

"What exactly did 'Officer' mean in this context? An early Philadelphia draft (of the Constitution) had specified that Congress must choose an 'officer of the United States.' A style committee later shortened the clause with no apparent intention of changing its meaning. The Senate president pro tempore and House speaker might be 'officer(s)' of their respective houses, but could just any 'officer' satisfy the succession clause? Could Congress pick a state 'officer,' or a local sheriff--or the president of a private cricket club, for that matter?

"Surely, Senate and House leaders were not 'officer(s) of the United States--a constitutional term of art reserved for members of the executive and judicial branches." (Amar, pp. 170-171, emphasis his).

In fact, notes Amar, James Madison was critical of the 1792 law for this very reason. By the way, the 1886 revision actually did make the secretary of state first in line after the vice president; in 1947 we went back to having a legislator third from the Oval Office (Amar, p. 172). The 1947 law also has the unfortunate consequence that if the house speaker is from the opposite party of the president and vice-president, there is incentive for Congress to find a means to impeach and remove from office the two guys on top so the speaker's party can run the show. That wouldn't happen if the third in line was the secretary of state, who is from the president's own party.

If you accept the argument, the "Officers" who stand in line behind the president and vice-president must be members of the cabinet. Thus, the mention of the Secretary of State as third in succession in "The Wild Wild West" was bad history but sound constitutional thinking!

I wonder how President-elect Obama, who taught constitutional history, feels about this. If he agrees with Amar, this would be the perfect time to push for a change back to the line of succession in force between 1886 and 1947. If heaven forbid, Obama and Biden should both suddenly meet their makers, the new president would still be a member of their party whether it was Nancy Pelosi or Hillary Clinton. Also, the next in line would be a woman either way, so if Obama and Congress moved to put Secretary Clinton two steps away instead of Speaker Pelosi, no one could whine that sexism was involved.

Of course, if Agents West and Gordon aren't vigilant, Dr. Loveless will no doubt invent some kind of mind control method that causes all Americans to accept him as our president.

Wednesday, November 26, 2008

Line by line

In a press conference yesterday, President-elect Obama had this to say about the federal budget:

"CHICAGO – The economy growing weaker, President-elect Barack Obama said Tuesday that recovery efforts will trump deficit concerns when he takes office in January. Yet he pledged a 'page-by-page, line-by-line' budget review to root out unneeded spending."

All the press coverage I've seen of this don't make the point that constitutionally speaking, the President's ability to formulate a federal budget is pretty much only advisory. Look at who is given the power, under our Constitution, over taxing, borrowing, spending, and the like:

"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow Money on the credit of the United States..."
(Article 1, Section 8).

"No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public
Money shall be published from time to time."
(Article 1, Section 9).

The Section 9 excerpt doesn't specify Congress, as the Section 8 excerpt does, but since it's in Article I, which mostly deals with Congress, and since "Appropriations made by Law" would have to conform to the power to tax and spend, given to Congress, we can safely assume drawing money from the treasury is not an executive power.

As for this "page-by-page, line-by-line" review President-elect Obama promises, that too, is something he can only advise on, and even there he can only do so before a budget is made, not after Congress has passed it. When one hears a President speak of line-by-line review, it actually sounds a lot like he believes he has line item veto authority over spending bills that pass both Houses.

He doesn't; the Supreme Court said so ten years ago when they struck down a bill Congress passed in which they tried to give the line-item veto to the President. The case was Clinton v. City of New York 524 U.S. 417 (1998), and if anybody ever wants to give it a nickname, how about the "Strange Judicial Bedfellows" case. You've got Breyer and Ginsburg on opposite sides, same with Scalia and Thomas.

On the basis of his impressive victory, Barack Obama may indeed have the clout to induce Congress to formulate a federal budget as he would wish to see. But remember: once they've passed it, he can only say yea or nay. If the bill has provisions to spend on fifty different projects and Obama only approves of twenty-five of them, he can't go down the list and say, "This one's fine, no way on that one, cut the funding for this one about twenty percent." He's got to take it all or approve nothing.

Tuesday, November 25, 2008

Turkey, stuffing, and sectarian wishes

The holidays are coming, so get ready for more stories like this one:

"An annual parade of boats on a Long Island river that dropped "Christmas" from its name has apparently lost lots of supporters.About 1,000 people showed up Sunday for the Patchogue (PACH'-awg) Boat Parade of Lights. That's 500 fewer than usually showed up when it was called the Patchogue Christmas Boat Parade."

Isn't it a bit surprising, given the clear religious history of Thanksgiving, that we don't hear the same controversy about the fourth Thursday in November as we do about the twenty-fifth of December? Where Christmas is concerned, the no establishment of religion clause of the First Amendment often winds up being litigated, perhaps most notably when the U.S. Supreme Court heard Lynch v. Donnelly, 465 U.S. 668 (1984), a case involving Pawtucket, Rhode Island's display of a nativity scene. But I don't hear a lot of chatter about church/state issues involving Thanksgiving.

This absence of controversy may be a bit surprising. After all, take a look at all the religious words and themes in President George Washington's first Thanksgiving Proclamation:

"Whereas it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor; and

"Whereas both Houses of Congress have, by their joint committee, requested me " to recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness: "

"Now, therefore, I do recommend and assign Thursday, the 26th day of November next, to be devoted by the people of these States to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be; that we may then all unite in rendering unto Him our sincere and humble thanks for His kind care and protection of the people of this country previous to their becoming a nation;
for the signal and manifold mercies and the favor, able interpositions of His providence in the course and conclusion of the late war; for the great degree of tranquillity, union, and plenty which we have since enjoyed; for the peaceable and rational manner in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national one now lately instituted; for the civil and religious liberty with which we are blessed, and the means we have of acquiring and diffusing useful knowledge; and,
in general, for all the great and various favors which He has been pleased to confer upon us.

"And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations, and beseech Him to pardon our national and other trangressions; to enable us
all, whether in public or private stations, to perform our several and relative duties properly and punctually; to render our National Government a blessing to all the people by constantly being a Government of wise, just, and
constitutional laws, discreetly and faithfully executed and obeyed; to protect and guide all sovereigns and nations (especially such as have shown kindness to us), and to bless them with good governments, peace, and concord; to promote the knowledge and practice of true religion and virtue, and the increase of science among them and us; and, generally, to grant unto all mankind such a degree of temporal prosperity as He alone knows to be best.

- Given under my hand, at the city of New
York, the 3d day of October, A. D. 1789. G.ø WASHINGTON."

Thomas Jefferson, incidentally, did not feel a President had the power to issue Thanksgiving Proclamations, and he issued none while he served as Chief Executive. Jefferson's refusal to acknowledge Thanksgiving probably had as much to do with his limited conception of federal authority as with the notion of separation of church and state. He believed any matter touching religion in any way should be left to the individual states rather than the national government. (See Currie, The Constitution in Congress: The Jeffersonians 1801-1829, 2001, p. 5; and Eidsmoe, Christianity and the Constitution, 1987, p. 244: "It is interesting that Jefferson opposed nationally-sponsored days of prayer as President, but supported state-sponsored days of prayer as governor of Virginia." )

Saturday, November 22, 2008

Going forward in Forsyth

A few days ago, I published an entry comparing voting patterns for the recent presidential election in Georgia and Illinois. As something of a postscript, here's a point I thought about putting in that essay but decided it should stand alone for emphasis.

If you're old enough, do you remember this bit of ugliness from twenty-one years ago?:

"In 1987 racial tensions again erupted in Forsyth County. In January a small march in Cumming to commemorate Martin Luther King Jr.'s birthday met with resistance from local members of the Ku Klux Klan, who threw stones and glass bottles at the demonstrators. The event received national attention, and on January 24, 20,000 marchers from around the country converged on Forsyth County. Led by numerous civil rights leaders, including Hosea Williams, the marchers encountered 1,000 to 2,000 counterdemonstrators, but the presence of large numbers of police and National Guard troops most likely kept the event from turning violent. The event was one of the largest civil rights demonstrations since the 1960s and generated so much national attention that talk-show host Oprah Winfrey taped a show the following month in Cumming about the event."

According to a 2006 estimate by the Census Bureau, the population of Forsyth County, Georgia, now is about 2.7% black; that translates to over four thousand African-Americans. This is still an absurdly low percentage for a large Georgia county, but it's a huge increase since Oprah showed up.

Well not surprisingly, John McCain won Forsyth County pretty handily. But not THAT handily. Dave Leip's atlas shows that Barack Obama got over twenty percent of the vote; 15,406 people in Forsyth voted for him.

You could, if you choose, argue that one in five people in Forsyth County voting for Obama is a more striking indicator of how far America has come than Obama simply winning the election.

Thursday, November 20, 2008

James Madison and the French refugees

"In 1792 President James Madison vetoed a Congressional Appropriation to assist refugees. He said 'I cannot undertake to lay my finger on that Article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.'" (Quote taken from this website.)

Well what's wrong with a few errant details here and there, eh? The web page I've linked gets three details askew. The first is obvious if you have a cursory knowledge of the founding generation: Madison was NOT the president in 1792; he wouldn't hold that office for another seventeen years. So obviously, Madison wasn't doing any vetoing in the seventeenth century.

The second little mistake is that the debate concerned took place in 1794, not 1792. Madison was, at the time, a member of Congress.

Finally, the third error--and okay, I'm nitpicking--is that the quote is presented as Madison speaking in the first person, when it is actually a third person report. In its original form, as I'll show you in a minute, it's not "I, James Madison say this," but rather "He, James Madison, said this."

This Madison quotation shows up pretty regularly, and while the first error, attributing the remarks to President Madison, rather than to Congressman Madison, is uncommon, the wrong date and the first person implication appears elsewhere, such as in this recent Larry Elder column. If at this point you question my accuracy, see for yourself; here is the relevant page from the Annals of Congress, with "January 1794" in the upper left hand corner and Madison's words towards the lower right corner. Walter Williams also recently told the Madison tale; he didn't assert that Madison was president, nor did he give a date, accurate or otherwise, for the quote (thank God for small favors), so Professor Williams is only liable for the slight miscue of putting it in the first person.

But alas, all these guys, extolling the virtue of what Madison said, omit the most significant point: in spite of his assertions, Madison, in the very same speech quoted above, nevertheless found a way Congress could get around the Constitutional objections and appropriate money for the refugees anyway. The refugees were French citizens who landed at Baltimore in 1793, fleeing the unrest on Hispaniola, known then as St. Domingo, see Currie, The Constitution in Congress: The Federalist Period: 1789-1801, 1997, p. 188.

Noting the nationality of the refugees, Madison according to the Annals of Congress, declared:

"It has been said that we owed the French every sentiment of gratitude. It was true; but it was likewise true that we owed them something else than sentiments, for we were indebted to them for a very large sum of money. One of the instalments (sic) of that debt would be due in a short time, and perhaps it might be safest for Congress to advance the sums now wanted for the french refugees, in part of that debt, and leave it to the French ministry whether they would accept such a payment or not."

And that's what Congress did (Currie, p. 189). So yes, Madison said what Elder and Williams ascribe to him, but he followed up his objection that the Constitution did not grant "a right to Congress of expending, on objects of benevolence, the money of their constituents" by finding a Constitutional way of doing just that. Madison simply cited the power of Congress "to pay the debts... of the United States" as a means of helping out the refugees (Article I, Section 8).

Thus, I think the impact of the Madison observation, so lauded by Williams and Elder, is somewhat blunted by the actual facts of what ultimately happened.

Wednesday, November 19, 2008

Red county, blue county

"In 1259... Supporters of (the King's) cause appeared among the poor and turbulent elements in London and the towns... The Barons (in opposition to the King) commanded greater sympathy in the country..." (Churchill, A History of the English Speaking Peoples, Vol. 1, Chapter "The Mother of Parliaments.")

Suppose the week before the election, Barack Obama had issued his staff a stunning directive. If he won, rather than having his victory rally in Grant Park, in Chicago, he would have it at one of two venues: either at Grant Park, or at Stone Mountain Park, east of Atlanta.

You couldn't pick two more historically distinct settings, one a park named after a Union general and located in a state called the Land of Lincoln, the other park conceived as a monument to the Confederacy with the images of Lee, Jackson, and Davis--who fought to preserve slavery--carved into granite. In this admittedly absurd hypothetical, Obama tells his crew that since Grant Park is in Cook County, Illinois, and Stone Mountain Park is in DeKalb County, Georgia, he will make the call on which of the two places he will speak based on one factor: which county gives him the greatest percentage of its total vote.

Guess where the rally would occur? Here's a hint: sweet tea and pecan pie would probably be served.

Obama received 78.86% of the vote in DeKalb County (p. 8 of the link). It took me a bit longer to find the tally for Cook County; I ended up having to go to separate websites for the City of Chicago and the rest of the county. Add it together and Obama gathered 76.19% of the Cook County vote. (That's a slightly different figure than Dave Leip has--76.48%--but the point I'm making isn't imperiled).

So Obama got about two and a half percent more of the total vote here in DeKalb county, in a red state, than he got in his home county.

What's the significance of this? Well, since McCain's defeat, I've seen articles like this one and this one that essentially argue that the Republican Party has become a party of only the Deep South. They're missing the point, as I hope I'll convince you when I run some of the numbers. What I'm going to do here is make some comparisons between Georgia, which McCain carried, and Illinois, which Obama won. For the remainder of this essay, my source will be Dave Leip's atlas.

The five largest counties in Georgia are, not surprisingly, the five counties forming the core of metro Atlanta. Obama won three of these, taking Fulton and Clayton as well as DeKalb. McCain prevailed in Gwinett and Cobb. We've already seen how well Obama did in DeKalb; he did even better in Clayton with well over 80% of the vote; plus he got over two-thirds of the vote in Fulton. While McCain obviously got slaughtered in DeKalb and Clayton, in the two counties Obama lost, he still got over 44% of the vote. So, if you combined all five counties into one super-duper county, Obama would win it.

Okay, so what was the key to McCain winning Georgia's fifteen electoral votes, seeing as how it wasn't Atlanta? How about all those medium-sized cities in Georgia; he must have won there, right?

Sorry. The three largest counties in Georgia that aren't part of the Atlanta metro are Chatham, home of Savannah, known for its architecture and history; Richmond, home of Augusta, known for the Masters golf tournament; and Muscogee, home of Columbus, known as the world headquarters of the insurance company with the talking duck. Obama won them all.

In addition, Obama won Clarke County, home of Athens where the University of Georgia sits. He also won Bibb County, which is where you'll find Macon. (No, "Macon County Line" fans, Macon isn't in Macon County; although for what it's worth Obama won there too.) This is all similar to what happened in Illinois, where Obama was also the choice of the medium-sized metro areas, winning in Peoria County, Winnebago County (Rockford), Champaign County, and Sangamon County (Springfield).

So if Obama won Atlanta and the mid-sized Georgia cities, where did McCain get enough votes to overcome this? The Churchill quote at the start of this essay suggests the answer: McCain won a lot of Georgia counties without a lot of people. Of the 46 counties in this state that the last census shows having fewer than twelve thousand people, McCain won 32; that's 69.6% of the tiniest counties. (I confess I was surprised Obama carried as many of these Hootervilles as he did).

And you know what? McCain also won most of the smallest counties in Illinois. If we look at the 27 counties in Illinois with fewer than fifteen thousand people, McCain won in 19 of them. That's 70.4%, so McCain actually did slightly better in tiny counties in Illinois, which he lost, than in Georgia, which he won. (I used different standards for small counties in the two states--under 12 thousand in Georgia and under 15 thousand in Illinois--because Illinois has both fewer counties and fewer really small ones.)

In fact, if you look at the entire state of Illinois, you see that McCain won a clear majority of the 102 counties there, 57 to Obama's 45. To be fair, that's an impressive total of counties won by Obama; in 2004 Kerry won the state but only out polled Bush in fifteen counties. Nevertheless, the conclusion is clear: while it is apparent the majority of people in Illinois wanted Obama, it's equally apparent that in the majority of places in Illinois McCain was the choice.

So what Churchill said about England in 1259 is just as true in America today. One party is preferred in urban areas, another out in the country. It's true in Illinois; it's true in Georgia. It's why those polls that late in the campaign moved North Dakota from "solidly McCain" to just "leaning McCain" were so laughable: did anybody really think Obama might prevail there? (The fun stuff you learn from the census bureau web page: North Dakota actually has 29 counties with fewer than five thousand people!)

The problem the Republicans have isn't that it is a regional party, only holding a majority in the Deep South. Even there, McCain didn't do well in urban areas. By the same token, even in Obama's Illinois, he doesn't get much of the rural vote. No, the issue for the Republicans where elections are concerned is that they are too much of a country party. And it takes city votes to win.

There's one more point I should address. If in both Illinois and in Georgia, Obama easily won the state's only really big city, and in both states Obama won the Peorias and the Augustas, and in both states McCain won Mayberry, how come Obama won the Prairie State handily but lost in the Peach Tree State?

It wasn't the black vote. According to the Census Bureau, there are about 900 thousand more African-Americans in Georgia than in Illinois, a statistic which takes on even greater significance when you realize that Illinois has about three and a half million more people than Georgia. If anything, you'd expect black vote to have more impact in Georgia than in Illinois.

Actually, I would argue there are two reasons Obama succeeded in one state but not the other; a minor reason and a major reason.

The minor reason is that McCain did quite a bit better in Atlanta's suburbs than in Chicago's. I noted that McCain won several suburban Atlanta counties, including Cobb and Gwinett. By contrast, Obama carried all five of the Illinois counties that adjoin Cook County, four of them with 55% or better of the vote.

But I think there is a much bigger reason McCain couldn't compete, demographically speaking, in Illinois. Remember how I said if you took all five of the largest Georgia counties and combined them into one super county Obama would win it? Well if you lumped that quintet of biggest Georgia counties into one, you'd have a county with just under three and a half million people.

Cook County, Illinois, all by itself, has almost 5.3 million people. So adding Georgia's top five counties gets you only to about two-thirds of the Cook County population.

And that, in conclusion, leads me back to my thesis about urban voters versus rural voters. McCain won Georgia because Atlanta is still small enough that the state's rural vote can overwhelm it. That's not true in Illinois, where Chicagoland is so huge that all the Barney Fife votes in the state can't touch it.

Tuesday, November 18, 2008

Commander-in-chief/ College sports commissioner

The "60 Minutes" interview with Barack Obama was surprising to me for two reasons. First, I didn't know "60 Minutes" was still on the air. And second, there was this little exchange between Steve Kroft and the President-elect:

Kroft: I have one last question. As president of the United States, what can you do, or what do you plan to do, about getting a college football playoff for the national championship?

Mr. Obama: This is important. Look, excuse me for a second.

Michelle Obama: Please. Don't mind me.

Mr. Obama: I think any sensible person would say that if you've got a bunch of teams who play throughout the season, and many of them have one loss or two losses, there's no clear decisive winner that we should be creating a playoff system. Eight teams. That would be three rounds, to determine a national champion. It would it would add three extra weeks to the season. You could trim back on the regular season. I don't know any serious fan of college football who has disagreed with me on this. So, I'm gonna throw my weight around a little bit. I think it's the right thing to do. (Emphasis mine).

We hear comparisons made between Obama and Lincoln, because they're both skinny Illinois lawyers who took office with quite thin resumes. We hear comparisons between Obama and JFK, because they both took office as young, good looking snobs. And there are the inevitable comparisons between Obama and FDR, as both took office in times of economic turmoil.

One comparison I haven't heard is between Obama and Woodrow Wilson. If I'm not mistaken, Obama, having taught Constitutional Law for about twelve years at a top tier law school, will very likely be the most knowledgeable President on the Constitution in nearly a century, since Wilson was in the White House. I note Wilson in this regard because he wrote a book entitled Constitutional Government in the United States. Obama hasn't written anything like that yet, as he apparently prefers autobiography to legal scholarship, but all those years teaching, telling students who pay the University of Chicago's hefty tuition just what the Constitution means and does not mean, certainly gives him some claim to being the most versed President on the intricacies of the great document since the days around World War I.

And that, my friends, is why I cringed when I heard Obama say he wants to throw his weight around to get a college football playoff. To be honest, I wouldn't even do a double take if President Bush had said this. I'd just shrug and think, well, that's just George the good old boy, talking as he might if you shared a beer with him.

But the standard here for Obama has got to be a little different. He knows what's in Article II. He knows, or should know, that there isn't any power granted the Chief Executive that could remotely be considered a license of authority to lean on college presidents to get a football playoff going.

You may recall that before the election, I defended Obama, to a degree, against the criticism that he didn't have enough experience to sit in the White House. I wrote:

"That's the thing about experience: a person may lack it in one relevant area but possess it in spades in another. Yes, Barack Obama is unusually unqualified to be President of the United States if you consider only the political positions he's held. But on the other hand, who is better qualified to preserve, protect, and defend the Constitution of the United States than a guy who taught it at an elite law school for a dozen years?"

Since to me, his Constitutional knowledge is actually Obama's best case for being President, I must say I find it troubling that he is so casual about the relationship between the Constitution and the Presidency in a major interview.

Picking a college football champion is not as important--nor as potentially dangerous--as dealing with Iraq. Nobody is going to think less of Obama if he can't get a playoff. But I have to admit, I think a little less of him for believing that leaning on folks to get a playoff is one of the President's duties.

Besides, as a Midwesterner, Obama shouldn't wish for a system that might show everybody even more clearly how bad Big Ten football has become.

Tuesday, November 11, 2008

Yeah, and if he was alive today he'd probably still be pro-slavery

John Calhoun was a nineteenth century senator and vice-president. He is probably best remembered today for his position that slavery was just about the nicest thing you could do for people of African descent. Naturally, there is a county in his home state of South Carolina named after him.

Obama won it by 275 votes.

Marx, Madison, and Obama

One of our Congressmen here in Georgia, Paul Broun, had some pretty scary things to say about President-Elect Obama's suggestion of a civilian security corps:

"Broun cited a July speech by Obama that has circulated on the Internet in which the then-Democratic presidential candidate called for a civilian force to take some of the national security burden off the military.

""That's exactly what Hitler did in Nazi Germany and it's exactly what the Soviet Union did,' Broun said. "When he's proposing to have a national security force that's answering to him, that is as strong as the U.S. military, he's showing me signs of being Marxist.'"

Uh... forgive me for pointing this out, Congressman, but did it occur to you that Obama's notion is also exactly what a hell of a lot of the people who founded this great country said we should do? Take a look at something James Madison said in the Constitutional Convention on August 23, 1787:

"As the greatest danger is that of disunion of the States, it is necessary to guard against it by sufficient powers to the Common Government and as the greatest danger to liberty is from large standing armies, it is best to prevent them, by an effectual provision for a good Militia."

And to the Framer's generation who, pray tell, was this militia that Madison extolled as securing liberty from large standing armies? It was, pointed out Professor David C. Williams, a citizen group:

"The militia was thought to be able to restrain corruption because it was virtuous and possessed ultimate control over the means of force. It was virtuous both because it comprised the universal people and because it offered training in the habits of virtue. And as the people, it was both government and society. The state raised it and ensured that it was universal... But despite this tie to the government, the militia was a people's body. Its membership included all of the citizenry, and if the government should ever become corrupt, it could resist by arms." (Emphases mine, this is from the 1991 article "Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment," Yale Law Journal Vol. 101, pp. 551-615 at 563).

If Broun had criticized Obama's notion of a civilian organization on the grounds that our taxes might be raised to fund it, that would be one thing. But it takes a real lack of understanding of American history to hear the Obama plan and immediately think of Marxists instead of Madison.

Monday, November 3, 2008

De Kalb County, Georgia, 2008

"A poor black woman in Alabama who could not set foot in a polling place in 1958 could pull a voting-machine lever for a black candidate in 1972." --Keyssar, The Right to Vote, 2000, pp. 256-57.

--And if she's still with us, she can push a button on a computer screen for a black candidate running for the highest office in 2008. Last Wednesday, taking the advice of authorities that Atlanta area residents should vote early to avoid expected long lines at the polling places November 4th, I drove to the local senior citizen's center to cast my ballot.

If those of us who voted early here thought that by doing so we could avoid lines, we were disappointed--I had to wait for an hour and a half. The line stretched outside the door, but it was one of those incredibly lovely Georgia autumn days with just the right amount of crispness in the air. One enterprising entrepreneur set up a small kiosk and sold hot dogs, chips, bottled water, and sodas; she found quite a few takers among those in line.

My boss had voted early one day prior, and based on her experience I knew to expect a wait, so of course I came prepared with a book to read in line--Eric Foner's Reconstruction (1988). As I looked around me, I realized that of the maybe two hundred or so voters in the queue, I was one of perhaps ten who was not African-American. And ironically enough, I had just gotten to the part in Foner's book on the efforts to extend the vote to people of color following the Civil War. On page 240, Foner mentions what may well be the worst local referendum result ever in the country's history:

"Hoping to forestall Congressional action, the District (of Columbia) in December 1865 held a referendum among white voters. The result: 35 in favor of black suffrage, 6,951 against."

We've come a long way from that.

Slowly I advanced in line, now actually entering the building, now turning the corner in the hall, now finally entering the room with the poll workers and the machines. When it came my turn, I walked to a machine and cast my ballot.

Immediately to my left, an elderly African-American man was voting; he needed assistance and it was given. I couldn't help overhearing that he was voting for Barack Obama. And although I pushed the button for Senator McCain, I must admit that should McCain lose tomorrow, it will please me to think that the old man who voted beside me will no doubt be happy for Obama's victory. If that senior citizen was born here in the South, he grew up and even entered adulthood in a society that often denied people of his race the most basic freedom of choosing leaders to run his town, state, and country. I wonder if in 1958 he could in his wildest dreams have imagined a black man running for President and getting tens of millions of votes.

It's been a long, hard road we've traveled in America, and there are no doubt struggles ahead. But I think election day is a good time for everybody to reflect on how far we've come towards the ideal of liberty and justice for all.

Tuesday, October 28, 2008

Warren's redistribution

This interview, given by Barack Obama in 2001, is generating a lot of chatter the past several days. Commenting on the Warren Court, the Senator said:

"But, the Supreme Court never ventured into the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society. To that extent, as radical as I think people try to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as its been interpreted and Warren Court interpreted in the same way, that generally the Constitution is a charter of negative liberties."

Sorry, I'm not going to use this essay to blast Obama as a socialist; you can find that elsewhere online if you wish. Let me just parenthetically say that people have a tendency to get worked up over policies that they believe are extreme without really understanding that it can be just as extreme to go too far the other way. I keep hearing pundits on the right decry "redistribution of wealth." Well frankly, I don't want the government taking my hard earned money, either; on the other hand, I don't want the poster child for American democracy to be Oliver Twist.

No, what I disagree with Senator Obama on is this implication that it would have been agreeable for the Warren Court to have established wealth redistribution as a touchstone of their decisions. You can easily see why if you consider the Warren Court's most famous case, Brown v. Board of Education, 347 U.S. 483 (1954).

Thurgood Marshall was the attorney for Briggs v. Elliott, another school segregation case lumped with Brown. The Briggs case originated in Clarendon County, South Carolina. The county had 276 white children attending its public schools and 808 black children doing likewise--in segregated schools, of course. Clarendon County spent $395,329 on education at the white schools, but only $282,960 on education at the black schools (Rowan, Dream Makers, Dream Breakers: The World of Justice Thurgood Marshall, 1993, p. 13). That rounds off to $1,432 per white child and $350 per black child, so that unit of the Palmetto State was spending better than four times as much money on each white student as each black one.

Once Warren and his colleagues agreed that this was unacceptable, as it obviously was, there are two things they could have done. They could have said school segregation is unconstitutional and must cease. That's what they did.

Or, they could have taken a redistribution of wealth position and said that it was okay to have segregated schools, but South Carolina would henceforth have to fund its black schools to match the white ones. That would be saying that separate schools were fine, South Carolina's error was in not having equal funding.

In other words, while the Warren Court held that segregation itself was the evil, the redistributionist principle would hold that the lack of true equality was the evil. This second position, believe it or not, is more or less what Derrick Bell, a professor of Obama's at Harvard Law School, has argued. In the book What Brown v. Board of Education Should Have Said (Balkin, ed., 2001), nine constitutional scholars were asked to write opinions in Brown as though they had been on the Supreme Court back in 1954 when the case was decided. The actual Brown opinion was unanimous, but in this mock exercise the vote was eight to one--with Bell the one scholar dissenting. Essentially he argued that instead of ordering an end to school segregation, the majority should have mandated a complex framework to insure equal allocation of resources for all schools--that is, engage in redistribution of funds. I think it's arguable that Bell's position is actually a concurrence rather than a dissent, but that's what he calls it (p. 185) so who am I to argue?

The problem with focusing on the unacceptability of unequal funding of schools, instead of the more general point that segregation itself has no place in America, is obvious when you consider the matter in other contexts. Dr. Martin Luther King, Jr., in his famous "I Have a Dream" speech, exclaimed:

"We can never be satisfied as long as our bodies, heavy with fatigue of travel, cannot gain lodging in the motels of the highways and the hotels of the cities."

If you take the attitude that the chief evil of "separate but equal" isn't the "separate" part, but rather that "equal" wasn't scrupulously observed, then it would be perfectly acceptable to have a motel refusing to give African-Americans a room for the night as long as there was a motel across the street just as good that catered to people of color. Fortunately, people came to see that "separate" was the bigger problem. Segregation is per se wrong and inconsistent with the Fourteenth Amendment in the sense that Americans by the sixties understood it. The year after King's famous speech, Congress passed the Civil Rights Act and King's children don't have to worry about being denied lodging when their bodies are heavy with fatigue of travel.

Whatever points Senator Obama may make on the Warren Court in general, I think we're fortunate they took the stand in Brown against segregation rather than for redistribution. Professor Bell argues that if South Carolina had been forced to spend as much money on each black student as each white one, the segregated system would have died out due to the state's unwillingness to spend that much--in other words, economic factors would lead to one school system for all children instead of two based on skin color.

Of course, one hundred sixty years before Brown "(M)any believed--or hoped--that slavery would die a natural death as free labor demonstrated its economic advantages." (Tushnet, Slave Law in the American South, 2003, p. 12.) How'd that work out?