Tuesday, February 24, 2009

Will started something, by George

I was pleased that my effort yesterday regarding Sunday's George Will column was referenced at hotair.com. Ed Morrissey also took issue with Will, for slightly different reasons. What is really interesting to me, however, if you look at the comments posted, is how many people agree with Will that the Seventeenth Amendment ought to be banished to Siberia and the selection of senators given back to the state legislatures.

As I normally do, I made my case from a historical perspective, pointing out the problems before 1913 that led to the amendment's adoption. What occurred to me later was that I should go back all the way to the debates at the Constitutional Convention of 1787 to see if there was a lot of disagreement over mode of selection of senators when this great land was just getting organized.

The significant discussion took place on June 7. The delegates were just getting underway when John Dickinson moved "that the members of the 2d. branch ought to be chosen by the individual Legislatures." His motion was promptly seconded, whereupon Dickinson elaborated why he was in favor of such a means of selection:

"1. because the sense of the States would be better collected through their Governments; than immediately from the people at large; 2. because he wished the Senate to consist of the most distinguished characters, distinguished for their rank in life and their weight of property, and bearing as strong a likeness to the British House of Lords as possible; and he thought such characters more likely to be selected by the State Legislatures, than in any other mode."

Anybody besides me get a bit of a giggle over reason 2? I mean, when I look at Georgia's two senators--Saxby Chambliss and Johnny Isakson--the last thing I think is that they bear a strong likeness to members of the House of Lords. I'll bet neither one even owns a powdered wig.

James Wilson, populist that he was, disagreed with Dickinson; he thought the voters should choose representatives in both houses. He made a motion to postpone Dickinson's motion--isn't parliamentary procedure a bit odd--so that popular election could be considered. That motion was seconded, but not another one offered by George Read to have senators selected by the president from a list of candidates provided by the state legislatures.

Nobody seconded Read's odd idea, but it's worth pointing out for one reason: to remind ourselves that there were more than just two options here. We tend to think of there being only a pair--selection by state legislators or popular election--because those are the two we've had in our history. But Elbridge Gerry summarized four options, not including Read's:

"4 modes of appointing the Senate have been mentioned.
1. by the 1st. branch of the National Legislature[i.e. the House of Representatives]. This would create a dependence contrary to the end proposed.
2. by the National Executive. This is a stride towards monarchy that few will think of.
3. by the people. The people have two great interests, the landed interest, and the commercial including the stockholders. To draw both branches from the people will leave no security to the latter interest; the people being chiefly composed of the landed interest, and erroneously supposing, that the other interests are adverse to it.
4 by the Individual Legislatures. The elections being carried thro' this refinement, will be most likely to provide some check in favor of the commercial interest agst. the landed; without which oppression will take place, and no free Govt. can last long where that is the case. He was therefore in favor of this last."

Notice that the support Gerry gives selection of senators by the state legislative bodies doesn't seem wholly enthusiastic; it's more that he thinks the other three methods are bad. It's maybe his version of Churchill's point about democracy being the worst form of government except for all the others. Having giggled over the idea of our Senate as a House of Lords, I must admit I chuckled even harder at the second plan on Gerry's list. Can you imagine if during George W. Bush's eight years in office he'd been able to select senators? Who's head would explode first, Michael Moore's or Sean Penn's?

Well before they adjourned for the day on June 7, the delegates took a vote. And here it is:

"On Mr. DICKINSON's motion for an appointment of the Senate by the State — Legislatures.
Mass. ay. Ct. ay. N. Y. ay. Pa. ay Del. ay. Md. ay. Va. ay N. C. ay. S. C. ay. Geo. ay."

Unanimous. Ten to nothing. Maybe if James Wilson and Robert Morris--the delegate who seconded Wilson's stand for popular election--had been the only two representatives from Pennsylvania it would have been nine to one, but the Constitution was signed by eight men from the Keystone State, so they could easily be out polled in their own delegation.

The chief point here, of course, is that while there was a bit of debate, the motion to have state legislators pick the senate passed as easily as it could have. By contrast, the vote on June 26 to have senators serve six year terms, staggered so that a third of the seats would be contested every two years, passed only seven to four. It just wasn't a very controversial move in 1787, letting states, rather than voters, choose the upper house.

In fact, it was so non-controversial a mode of selection that it also gets very short shrift in The Federalist Papers. Here, in number 62, is all that is said on the matter:

"It is equally unnecessary to dilate on the appointment of senators by the State legislatures. Among the various modes which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial with the public opinion. It is recommended by the double advantage of favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems."

It's uncertain whether that was Hamilton or Madison writing, but that isn't important. What is significant here is the brevity and the tone. Notice the first sentence assumes this to be a matter of such little disagreement that it needn't even be elaborated on. Michael Myerson of the University of Baltimore has recently written a very fine book on appreciation of The Federalist, he nevertheless concedes that "some of these papers are a bit ponderous and repetitious," see Liberty's Blueprint, 2008, p. x. But the discussion of how senators are chosen is shorter than a two year old's attention span. By contrast, there is a whole paper--number 68--defending and explaining the method in which the president is elected.

Lots of things were bones of contention when the Constitution was being formulated. The powers of the president. The dreaded three-fifths clause. Whether the president would have a veto and then whether Congress could override it and if so how many had to vote to override it.

Letting the men in the state houses choose U.S. senators instead of the voters wasn't one of them.

Monday, February 23, 2009

The all or nothing Constitution of George Will

In his column yesterday, George Will called for a repeal of the Seventeenth Amendment, which provides for the direct election of U.S. Senators:

"The Framers established election of senators by state legislators, under which system the nation got the Great Triumvirate (Henry Clay, Daniel Webster and John Calhoun) and thrived. In 1913, progressives, believing that more, and more direct, democracy is always wonderful, got the 17th Amendment ratified. It stipulates popular election of senators, under which system Wisconsin has elected, among others, Joe McCarthy as well as Feingold...

"Furthermore, grounding the Senate in state legislatures served the structure of federalism. Giving the states an important role in determining the composition of the federal government gave the states power to resist what has happened since 1913 -- the progressive (in two senses) reduction of the states to administrative extensions of the federal government."

Years ago I saw Sam Donaldson on a television program declare that George Will was perhaps the smartest person he'd ever met. Donaldson then chuckled and admitted he didn't have a very good answer when someone hearing such praise responded "Well then why don't you agree with Will more often?"

So let me emulate Donaldson, chuckle a bit, acknowledge George Will is a very learned fellow, and then blast him for this column, which is not a model of intellectual rigor. It suffers from two obvious logical fallacies.

First, he uses anecdotal evidence to suggest senators were better before popular vote, and very mere anecdote at that. Will mentions three "great" senators from the nineteenth century (Clay, Webster, and Calhoun) and one scourge from the twentieth century, Joe McCarthy (or two scourges, if you think his shot at Feingold is serious, which I doubt).

Yes, popular vote put Joe McCarthy in the Senate. It also put Harry Truman, Lyndon Johnson, Hubert Humphrey, and John McCain there. I'd say we've gotten some pretty fair Senators out of the deal.

But more to the point, back in Will's good old days when Senators were selected by the state legislatures, we got in the upper house men like Chipman, Clayton, Foster, Goodhue, Greene, Hillhouse, Latimer, Laurance, Livermore, Lloyd, Martin, North, Paine, Read, Rutherford, Sedgwick, Stockton, and Tracy. Who were they? They were the eighteen senators who on July 4, 1798, voted in favor of the Sedition Act, making it illegal to write or publish any "inflammatory declarations" about the United States or any of its officials (see page 599 of the link). It's a bit ironic that Will props up Joe McCarthy as an example of what you can get with common folks selecting senators since McCarthyism has often been compared to the dark days of 1798 (see Stone, Perilous Times: Free Speech in Wartime, 2004, p. 37). It's even more ironic given that in this same column Will blasts McCain-Feingold as an abridgement of free speech. (A digression: I agree with Will about that.)

I'd also argue it's something of a reach dropping John Calhoun's name as a great nineteenth century senator, especially given the contrast Will makes between "great" senators and McCarthy. McCarthy's philosophy may be summed up as "everybody is a commie." Calhoun's philosophy may be summed up as "every Negro should be a slave." Bad as McCarthy's thesis was, it didn't do as much long term damage to this country as Calhoun's notion did. The Red Scare didn't curse us with a Gettysburg.

Then there's the second problem with Will's call for repeal of the Seventeenth Amendment. He's fallen into what I call the "All or Nothing Constitutional Trap." The trap is set like this: the Constitution is amended in year x to change policy y. As the years pass, and the reasons for the amendment fall out of memory of most of the living, people start to think--usually erroneously--that before the amendment every state was doing what the amendment set out to change.

Here are some examples of the All or Nothing Trap. Have you ever heard it said or seen it written that before the Nineteenth Amendment was ratified in 1920, women couldn't vote? That's absolutely untrue. Lots of women voted before 1920, because fifteen states had fully enfranchised them prior to that date (Keyssar, The Right to Vote, 2000, p. 402.) Four states even let the ladies cast ballots before the nineteenth century came to a close.

Ever hear or read that African Americans couldn't vote before ratification of the Fifteenth Amendment following the Civil War? Not so, before the Civil War blacks could vote in five New England states (Goldman, Reconstruction & Black Suffrage, 2001, p. 10.)

Ah yes, and there's Prohibition. This country did not suddenly go dry upon ratification of the Eighteenth Amendment in 1919. Seven states got rid of booze by 1900; others followed in the nearly two decades before liquor was banned nationwide (Friedman, American Law in the 20th Century, 2002, p. 102).

When the Twenty-fourth Amendment, banning poll taxes, came into force in 1964, there were only five states left that still had the practice (Amar, America's Constitution: A Biography, 2005, p. 443). Now I've never heard anybody say that before the Twenty-fourth Amendment we had poll taxes everywhere, but that's probably because there are still so many alive who remember 1964. I'll bet you anything that in another hundred years there will be people who believe that this country had poll taxes everywhere, and then suddenly in 1964 we had them nowhere. (I won't be around for you to collect, so it's an easy bet for me to make.) That's the nature of the All or Nothing Trap, folks think that a process which was halting and incremental was sudden.

And that's where George Will trips in this column. One would get the impression, were one to use it as his only source on the subject, that all of a sudden in 1913, we went from state legislatures selecting senators to election of senators by popular vote. That's far from accurate. Let me quote the annotation of the Seventeenth Amendment from the official annotated Constitution maintained by the U.S. government:

"Prior to ratification... many States had perfected arrangements calculated to afford the voters more effective control over the selection of Senators. State laws were amended so as to enable voters participating in primary elections to designate their preference for one of several party candidates for a senatorial seat, and nominations unofficially effected thereby were transmitted to the legislature. Although their action rested upon no stronger foundation than common understanding, the legislatures generally elected the winning candidate of the majority, and, indeed, in two States, candidates for legislative seats were required to promise to support, without regard to party ties, the senatorial candidate polling the most votes. As a result of such developments, at least 29 States by 1912, one year before ratification, were nominating Senators on a popular basis..."

Notice that this is quite a contrast from the examples I gave earlier. Some African Americans could vote before adoption of the Fifteenth Amendment, but most couldn't; indeed, many couldn't for a hundred years before we figured out no discrimination on the basis means what it says. Some women could vote before 1920, but many couldn't. But in the case of popular election of senators, we see that in twenty-nine states--better than sixty percent of them--the change that George Will decries was well underway before the Constitution was amended.

And here is maybe the key point: as Professor Amar notes in the book I've cited above, since the Seventeenth Amendment had to be ratified by three-quarters of the state legislatures, those elected officials were consciously reducing their own influence, taking a power they had and giving it to the electorate (p. 412). Amar goes on to illustrate the problems of senate selection by the legislatures:

"As a result of intense partisanship, state-law quorum rules, and clever parliamentary maneuvering, state legislatures had often deadlocked when balloting for the Senate. These deadlocks--nearly fifty between 1891 and 1905--had routinely meant that for months a state had only one senator (and in the case of Delaware during one especially contentious two-year period, no senator) in the federal upper chamber. Meanwhile, the Senate tussles had often distracted state governments from attending to other pressing business. Direct election promised to solve these problems."

Fifty deadlocks in fourteen years. Imagine the Coleman-Frankin debacle in Minnesota fifty times over; that's what they had in the "gay nineties." I'd rather not go back to that.

And here's the funny thing: Will doesn't seem to fathom that even assuming you could somehow repeal the Seventeenth Amendment, we wouldn't go back to that. If, in a moment of madness enough legislators in thirty-eight states voted to take back selection of senators, what do you think the people would do? They'd express outrage, that's what. Candidates for office would take advantage of the disgust and promise that if they were elected never mind what just happened nationally, here in the great state of Georgia, or Illinois, or New York, or wherever, we want the people to choose their senators and if you elect me I'll vote that way. Or, grassroots movements would lead to state constitutions being expressly amended to provide for popular vote. The point is, unless you amended the Constitution to specifically say that the states can't have popular elections for Senate--and Will doesn't appear to be advocating that--it would be surprising in our nearly universal suffrage America if even one state chose to go back to the days of senators selected by the few instead of by the many.

Let me close this article by commenting on a historical election for the Senate that I'll wager Will and I agree went the wrong way. We saw that the process of the people having at least some say in selecting senators began well before 1913. A major milestone in that regard was the 1858 race for one of the Illinois U.S. Senate seats, the famed Lincoln-Douglas encounter. Up to that point in Illinois as elsewhere, the state legislatures would select a Senator after they got elected; it wasn't typically a campaign issue. But in 1858 the format changed: the Republicans announced Abraham Lincoln as their man and most of the Democrats touted Stephen Douglas before the state election (Amar, p. 410). In essence, the 1858 Illinois election was made a referendum on who would represent the Prairie State in the upper house in Washington. Vote for us, the Republicans announced, and Honest Abe will get the job. Cast your ballots for us, countered the Democrats, and we'll keep Douglas there.

So it was a movement towards popular election, but not a true popular election in the modern sense. And do you know what happened? On November 2, 1858, there were approximately 125,000 votes cast for Lincoln Republicans--four thousand more than the candidates pledged to Douglas received (Potter, The Impending Crisis, 1976, p. 354). If it had been a true beauty contest, Lincoln would have gone to the Senate.

Alas, it didn't quite go that way, because the voting was considered by district rather than by statewide tally. As a result, forty-six Democratic legislatures were chosen and only forty-one Republicans, plus eight of thirteen representatives held over from a previous election were Democrats (Potter, pp. 354-55). So even though Lincoln would likely have won if the 1858 contest had been a straightforward, popular vote, Douglas prevailed because of the same type of legislative meanderings the Seventeenth Amendment was designed to short-circuit.

Apparently George Will wants to bring back those legislative meanderings. Well, I'm against Will in his efforts to take America back to the early days before senators were popularly elected.

Of course, if he wants to take America back to the early days when the Cubs were World Champions I'll go along.

Edited to add: welcome, hotair readers! Feel free to look around and pet the goats.

Wednesday, February 18, 2009

Chimpanzees are NOT monkeys! Repeat: chimpanzees are NOT monkeys!

I have a degree in zoology. Years ago I got into an argument with somebody when I mentioned that the woodchuck and the groundhog are the same animal; it's simply a case of linguistics leading to one creature having two common names in much the same fashion that a long sandwich is called a "hero" a "grinder" or a "sub" depending on where in the country you are. (Or at least that was true before Subway came along and spread one of the many synonymous terms through nationwide franchising.)

The person I was speaking to simply wouldn't believe it. Never mind that I had a zoology degree, never mind that I could even recite the scientific name of the animal--Marmota monax--or that I'd even examined woodchuck-groundhog skulls in mammalogy lab. This person was absolutely convinced I was wrong, that the two words must designate two completely different species of organisms.

As maddening as that was, it's nothing compared to the most irritating thing those of us into zoology must deal with, namely that so many people, even well-educated folks, simply cannot understand that a chimpanzee is not a monkey.

The Reverend Al Sharpton is the latest offender:

"The cartoon in today's New York Post is troubling at best given the historic racist attacks of African-Americans as being synonymous with monkeys. One has to question whether the cartoonist is making a less than casual reference to this when in the cartoon they have police saying after shooting a chimpanzee that 'Now they will have to find someone else to write the stimulus bill.' Being that the stimulus bill has been the first legislative victory of President Barack Obama (the first African American president) and has become synonymous with him it is not a reach to wonder are they inferring that a monkey wrote the last bill?"

As someone who believes that Darwin was correct on human origins, let me fess up to something. When I first moved to the South, I had a rather cynical notion that one reason for the lack of acceptance of the theory of evolution in Dixie was that white folks down here didn't want to think about the possibility that humans could have originated on the African continent. The redneck didn't want a black man nudging his arm and smugly declaring "Well, I guess we're ALL African Americans, huh?"

I came to realize that this was a stupid thought I'd had, for one obvious reason: none of the black people in the South believe in evolution either. I've told some of my friends in the North that when I say, "Picture somebody in the South who believes Genesis and doesn't believe in gay marriage" that if in their mind's eye they see a white guy in rural Alabama with a pickup bearing a Confederate flag bumper sticker, that's understandable, but it's only part of the story. A southerner who thinks Darwin was a nut, and so is anybody who thinks a wedding cake can have two dudes on it ,is just as likely to be an urban black woman who drives a Honda Civic with an Obama bumper sticker.

But even if you accept creation instead of Darwinism, chimpanzees still aren't monkeys. They're apes. As Pulitzer Prize winner Jared Diamond wrote in The Third Chimpanzee (1992), chimps have about 98.4% of their DNA in common with humans (p. 23). Chimps and monkeys? They only have about 92.7% of their DNA in common (p. 24). So not only are chimps not monkeys, they aren't even as closely related to monkeys as they are to us! (See also the American Society of Mammalogists paper on the chimpanzee if you're really fascinated by these animals.)

I'm actually with Reverend Sharpton in thinking the cartoon is inappropriate. I'm more concerned, however, with making a joke out of an incident where somebody was severely mauled by a wild animal than by any speculation that the cartoonist might have had sinister racial motives. Maybe he did, probably he didn't. What is clear is that the cartoonist did think he could use a horrible tragedy to get a laugh. Personally, I don't find animals attacking people particularly funny.

But remember, ladies and gentlemen: chimpanzees are apes. They are NOT monkeys. Neither are orangutans, but if you google "Any Which Way But Loose" you'll see any number of web entries where people say that Clint Eastwood's sidekick in that film was a monkey. The zoological battle to educate people on primate taxonomy, like Al Sharpton's indignation, never ends.

A sad history

Two weeks ago, observing Black History Month, I posted this entry in which I mentioned two books on the history of race in America that I thought were essential reading for anyone who wants to be well informed on the topic. It dawned on me this morning that I should have made it a trifecta; there is a third volume that deserves mention along with Simple Justice and The Strange Career of Jim Crow.

David Brion Davis is one of the leading scholars on slavery, and his 2006 book Inhuman Bondage: The Rise and Fall of Slavery in the New World is a captivating--but necessarily grim--account of the horrors resulting from the bizarre and wicked notion that one man could own another. I recently had occasion to refer to his descriptions of slave ships crossing the Atlantic; here's a piece of it:

"In the fifteenth and sixteenth centuries... The density of packing slaves in the decks between a ship's bottom hold and main deck far exceeded the crowding of indentured servants or even Irish prisoners shipped to the British Caribbean. The males, especially, had to lie like spoons locked together, with no real standing room above them, surrounded by urine and feces, with little air to breathe. One would need to turn to the suffering of slaves in ancient Greek silver mines or to the victims of Nazi death camps to find worse of roughly equivalent examples...

"Matters hardly improved in the nineteenth century. The illegal slave ships captured by the British between 1839 and 1852 had an average of four square feet for each slave, compared with the twelve square feet required by British law for contemporary North Atlantic immigrant ships--the same space, roughly, given to modern economy fare passengers on a Boeing 747. As David Eltis puts it 'the occupant of the typical slave ship could neither lie full length nor stand upright for five weeks except for the limited time spent above deck each day.'" (pp. 91-92)

David Eltis is, of course, another scholar on slavery. Inhuman Bondage also includes a chapter on the Amistad; he calls the Steven Spielberg film on this maritime uprising "somewhat inaccurate but powerful," p. 12. There are two thorough chapters on the particular nature of slavery in the American South, a section on slave revolts, and chapters on the abolitionist movements in both Britain and in the United States. After reading this book, you'll come away horrified that slavery was ever allowed to happen among civilized people, and you'll probably have a lot of respect for the folks who stood up while slavery was practiced and said "no more."

Tuesday, February 17, 2009

Yankee, Dixie, and Junior

I was born and raised in Chicago, but I've lived south of the Mason-Dixon Line since I was twenty-one. Even growing up on the shores of Lake Michigan, I wasn't far removed from the South on my mother's side; her mom was from Georgia and her father hailed from Alabama.

Largely because of this aspect of my life, I'm quite fascinated with comparisons and contrasts between North and South. Currently I'm reading The White House Looks South by William E. Leuchtenburg, a study of the presidencies of Franklin Roosevelt, Harry Truman, and Lyndon Johnson and how they shaped--and were shaped by--what went on in Dixie. It's a remarkable book and I'm learning a lot. One quibble: when I'm reading a nonfiction book, I tend to peek at the final page before I've finished the volume. As such, I was stunned by the last sentence of the text: "In sum, the South in the twenty-first century--indeed the South on Lyndon Johnson's final day in office in 1973--is a very different place from the South Franklin Roosevelt found when he got off the train in a rundown Georgia village in 1923" (p. 418). How on earth did the wrong ending date for LBJ's presidency make it past the editor? The Texan left the White House in 1969, not 1973, which in fact is the year he died.

For me, a fun understanding of the contrast between North and South comes when I drive home from work. The only pleasure of a PM commute in Atlanta is listening to Buck and Kincade on 680 The Fan, a local sports talk radio station. John Kincade, born and raised in Philadelphia, is like me, a northern transplant. Buck Belue, on the other hand, is from Valdosta, Georgia, and is well known in these parts for quarterbacking the University of Georgia in their 1980 national championship season. The difference in their backgrounds, and their acknowledgment of it, makes their program quite entertaining.

In his 1867 book The English Constitution, Victorian economist Walter Bagehot argued that one reason the British government worked so well was it had a dignified part (the Crown) and an efficient part (the Parliament). When I first read that, I was struck that this seems to sum up the difference in our country between northern people and southern folks. We Yankees tend to be all about efficiency; Southerners seem more prone to embrace dignity. I see that a lot in Buck and Kincade; Buck has that charming southern ability to seem prim and proper without appearing stuffy, while Kincade is so efficient he actually counts every program the pair have done together and at least once an afternoon mentions what number show it is! (They recently celebrated their two thousandth session together.)

This past Monday, I had a North-South epiphany not just because of Buck and Kincade themselves, but also because of the subject they addressed on their program. They were discussing the Daytona 500, run the day before. Kincade criticized Dale Earnhardt, Jr., pointing out that in the past five years he has won only three races, none of them big NASCAR events, but that in spite of this the younger Earnhardt continues to get tons of endorsement deals and is talked about more often than far more successful racers. Buck defended Junior, as did a few of the callers. One man with a pronounced southern accent admonished Kincade by saying that criticizing Junior was just something you don't do in the South, although a few other callers with an equal amount of y'all in their diction contested this and agreed with the Yankee half of the hosting team.

In fairness, it should be mentioned that Junior did win the big race at Daytona in 2004, but nobody really had a good answer for Kincade's assertion that Junior has underachieved since then. And it was then that it struck me: Dale Earnhardt Junior is to NASCAR what the Cubs are to baseball. Or to look at it geographically, the Cubs are to Chicago what Junior is to Charlotte. On the north side of Chicago, where I grew up, people love the Cubbies and often become quite indignant if anyone--especially out of towners or worse, south siders--mocks the team over it's lack of significant achievement. Yet it's there with the Cubs and Junior, isn't it--that sinking feeling their fans get that there's no World Series trophy or significant checkered flag ahead.

Maybe Walter Bagehot was right about what a government needs to be successful. But go to Wrigley Field, or cheer for Junior, and you come to the inevitable conclusion that so often in sports, it's not a matter of dignity and efficiency. What you experience is hope followed by heartache.

Monday, February 16, 2009

Bust up over Churchill bust

They're a bit perplexed in Britain why President Obama has decided to give back a bust of Winston Churchill on loan to the United States:

"A bust of the former prime minister once voted the greatest Briton in history, which was loaned to George W Bush from the Government's art collection after the September 11 attacks, has now been formally handed back.

"The bronze by Sir Jacob Epstein, worth hundreds of thousands of pounds if it were ever sold on the open market, enjoyed pride of place in the Oval Office during President Bush's tenure.

"But when British officials offered to let Mr Obama to hang onto the bust for a further four years, the White House said: 'Thanks, but no thanks.'"

The Telegraph article goes on to speculate why the President doesn't want to keep the artwork:

"Churchill has less happy connotations for Mr Obama than those American politicians who celebrate his wartime leadership. It was during Churchill's second premiership that Britain suppressed Kenya's Mau Mau rebellion. Among Kenyans allegedly tortured by the colonial regime included one Hussein Onyango Obama, the President's grandfather."

Well hey, as long as we're guessing that the reason for the decision has to do with kinship, we've got to ask the obvious question if maybe Obama's not so keen on Churchill because the acclaimed British Prime Minister is related to George W. Bush.

You didn't know Bush is related to Churchill? It came as a surprise to Churchill's grandson, Winston S. Churchill, as well. He edited The Great Republic: A History of America, a collection of his grandfather's notable writings about the United States. In the preface to the volume, the younger Churchill writes that as a result of his genealogical research:

"(I) was fascinated to discover that Winston Churchill, at ten generations removed, had not one, but three, ancestors who sailed on the Mayflower and who were among the mere fifty who survived the rigours of that first winter on the inhospitable shores of New England... I was further intrigued to learn that, through them, we are linked to no fewer than three Presidents of the United States--Ulysses S. Grant, Franklin D. Roosevelt, and George Bush..." (p. xi).

The Great Republic was first published in 1999. The next year, George Bush's son was elected President, so that makes George W. a fourth chief executive related to the Churchills.

Of course, I'm not accusing President Obama of consciously shunning Churchill because of his shared lineage with Bush; I'm just sharing a point the Telegraph might have made once they chose to bring family into it.

On the other hand, maybe a bit more research would show that Obama and Bush are related too. Wouldn't that be something having them show up at the same family reunion. Obama would be the control freak who insists everyone wear an ugly bright yellow tee shirt; Bush would be the wacky cousin who after loading up on hot dogs and baked beans asks every child present to pull his finger.

Saturday, February 14, 2009

Counting and the Constitution

"Rep. Darrell Issa (R-Calif.) said that there was no legal or constitutional basis for Obama’s plans, citing the fact that Article I of the U.S. Constitution, which contains the census provision, spells out the powers of Congress -- not of the president or executive branch. “We [Congress] give to the executive branch and the Commerce Department the requirement to administer this constitutional duty, belonging to the Congress,” Issa explained. “By no means is there any basis, legal or constitutional basis, for the president to direct the census.” Obama has made no formal announcement of plans to take over the census, but numerous press reports last week – citing unnamed senior administration officials – said that he planned to have the Census Bureau’s director report directly to White House staff." From this article.

Well what about it? Is the President, with his reported plan to have more hands on involvement, ignoring the Constitution when it comes to the census?

Let's start at the beginning and note specifically what the Constitution says about a census. The relevant text is in Article 1, Section 2: "The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct." The emphasis is mine, because that's really the bone of contention here. What, exactly, has Congress by law directed?

As so often is the case in matters like this, Congress passed the buck: they simply directed the Executive branch to worry about the census. And they've spent quite a lot of ink doing that. There are fifty titles in the United States Code, everything from agriculture (Title 7) to veterans' benefits (Title 38). Would you believe there is an entire title devoted to the census? It's title 13 and if you thought all the Bureau of Census does is count people, I'd recommend a glance at some of the provisions. Take a peek at section 44:

"In addition to the information regarding cotton in the United States provided for in this subchapter, the Secretary shall compile, by correspondence or the use of published reports and documents, any available information concerning the production, consumption, and stocks of cotton in foreign countries, and the number of cotton-consuming spindles in such countries."

Makes you proud to be an American, huh? Now go ask a dozen intelligent people this question: "Who in the government keeps track of how much cotton is produced outside the U.S?" I'll bet they say it's the Secretary of Agriculture. But no, counting alien cotton is the duty of the Bureau of the Census, headed by the Secretary of Commerce. (That's assuming we ever HAVE a Secretary of Commerce.)

Well that's fun information, but not what we're looking for here. Section 2 of Title 13, from a law passed in 1954, places the Bureau of Census within the Department of Cotton--er, Commerce. So there's no argument there, Congress did put the census under the control of a member of the President's cabinet.

And is the President specifically mentioned when it comes to the ten year headcount? Yes, in section 141, which reads in part:

(a) The Secretary shall, in the year 1980 and every 10 years thereafter, take a decennial census of population as of the first day of April of such year, which date shall be known as the ``decennial census date'', in such form and content as he may determine, including the use of sampling procedures and special surveys. In connection with any such census, the Secretary is authorized to obtain such other census information as necessary.
(b) The tabulation of total population by States under subsection (a) of this section as required for the apportionment of Representatives in Congress among the several States shall be completed within 9 months after the census date and reported by the Secretary to the President of the United States.

I highlighted the things I think are most significant to the discussion here, and certainly the source of the disagreement between Congressman Issa and President Obama. In short, the Secretary of Commerce is specifically mentioned as the person authorized to basically conduct the census, but it also clearly declares that he must report his findings to the President.

Well I think Issa is posturing a bit here, but the opposition party to the President always does that. But I also think he has a point. You may if you choose defend Obama's plan by saying hey, he's the guy who the census report is supposed to ultimately be delivered to anyway, so why fuss if he's just trying to eliminate the middleman? And yes, I'd agree with you that in the general scheme of things, it really isn't that significant if Obama engages in a bit of a bypass to speed up the process. The problem with saying that Obama politicizes the census if he has a personal involvement is that the man or woman who ultimately does become Commerce Secretary will be a lieutenant of his who could also just as easily politicize it.

But Obama shouldn't be eliminating the middleman when the statute clearly specifies that the middleman is responsible for conducting the census. It isn't appropriate for the President to alter the procedure without Congressional approval.

They'll be reporting for spring training in Florida and Arizona shortly, so let me use a baseball analogy. Section 141 is, I think, a bit like an intentional walk. Every once in awhile, somebody will remark that it's a silly formality having the pitcher gently toss four straight pitches eight feet out of the strike zone. Why not just let the pitcher or catcher say to the umpire, "Let him take the base" and have the batter trot to first without the four lobs?

Sure, that could be done. But until such time as the lords of baseball decide to change the rule, the pitcher MUST make those four wide tosses.

It's the same thing with section 141 on the census. Maybe there's no good reason not to just say the President is authorized to handle it as he sees fit, seeing as how the person who does handle it is one of his political appointees anyway. But regardless of whether the distinction between the Secretary of Commerce reporting to the President or the President reporting to himself is trivial, that's the law as it stands. Obama shouldn't stray from that at all.

Wednesday, February 11, 2009

February is Constitutional Amendment Month!

The U.S. Constitution went into effect on June 21, 1788, when New Hampshire became the required ninth state to ratify it (Rakove, Original Meanings, 1996, pp. 121-22). The first ten amendments, the Bill of Rights, won ratification on December 15, 1791.

And here's the curious thing: of the seventeen amendments added since the Bill of Rights, five of them were ratified in February. By ratification date, of course, I mean the day by which the required number of states had voted in favor of the provision.

No other month has seen as many amendments pushed through as February, but there were also two ratified in December and three in January, so apparently winter is ski season and amendment season. This is probably not a coincidence, as obviously a state's legislature must be convened to vote on amendments and they tend to like getting their sessions in early so that by November elections people have forgotten most of the reasons to vote against them. In that regard, it's noteworthy that no amendment has ever been ratified in September, October, or November.

Anyway, the "February amendments" are the Eleventh, Fifteenth, Sixteenth, Twenty-second, and Twenty-fifth. I'll not go into what each of those amendments is for, as if you want you can look it up, but one oddity is worth noting. The Fifteenth Amendment, prohibiting the denial of vote based on race, was ratified on February 3, 1870. And the Sixteenth Amendment, giving Congress power to tax our incomes, the swine, got the required number of states to vote yes on February 3, 1913--exactly forty-three years to the day the last time the Constitution was modified.

It's actually a pity the income tax amendment didn't get ratified one day earlier; no doubt comedians could develop some funny material about the groundhog being scared back into his burrow not by his shadow but by an IRS agent.

Friday, February 6, 2009

The Obama Federalist Papers

"What Americans expect from Washington is action that matches the urgency they feel in their daily lives -- action that's swift, bold and wise enough for us to climb out of this crisis.

"Because each day we wait to begin the work of turning our economy around, more people lose their jobs, their savings and their homes. And if nothing is done, this recession might linger for years. Our economy will lose 5 million more jobs. Unemployment will approach double digits. Our nation will sink deeper into a crisis that, at some point, we may not be able to reverse.

"That's why I feel such a sense of urgency about the recovery plan before Congress. --President Barack Obama in an editorial today in the Washington Post.


"Another advantage of the two-house legislature is that it makes it more difficult to create laws. While recognizing the obvious need for some legislation to pass, The Federalist expressed deep skepticism about the wisdom of most legislation: 'The injury which may possibly be done by defeating a few good laws will be amply compensated by the advantage of preventing a number of bad ones.' [Federalist 73, Hamilton]. Sometimes, Madison warned, we the people, through our 'own temporary errors and delusions' will push for legislation that we 'will afterwards be the most ready to lament and condemn.' [Federalist 63]. The need for both houses to approve legislation slows down the process, and permits cooler heads to prevail. Put another way, gridlock can be good." --Meyerson, Liberty's Blueprint: How Madison and Hamilton Wrote the Federalist Papers, Defined the Constitution, and Made Democracy Safe for the World, 2008, p. 180.

And that's the problem, isn't it? What if the urgency the President calls for results in legislation we will afterwards be ready to lament and condemn?

Tuesday, February 3, 2009

Nothing to Jim Crow about

It's Black History Month, so it's time to reflect on America's less than perfect past, to marvel at the accomplishments of people like Frederick Douglass, Thurgood Marshall, and Martin Luther King who succeeded in spite of racism, and to celebrate how far we've come that a man whose dad was born in Africa can become President.

Also it's time to see a few articles that make your eyeballs roll. Here's one:

"President Barack Obama simultaneously fulfills the fondest hopes and worst fears in certain groups of Americans as the first black man to hold the White House. What are keys for Obama to break down racial divisions in the country?

"He has a good start based on the statistics of the campaign. The most prolific fundraiser in political history... Obama raised nearly $640 million in his campaign, and many of those dollars came from first-time donors in small checks. People of every stripe voted with their pocketbook before they ever set foot in a voting booth."

Wait a second. In a discussion of Obama breaking down racial divisions the first thing Woolman points to is that he raised lots of money? Not that he won primaries and caucuses in states where the vast majority of voters were white? Not that he won a U.S. Senate seat in Illinois, where a Chicago suburb was dubbed "the Selma of the North" by Dr. King, who preached when Obama was a boy? (See Cahan, A Court That Shaped America, 2002, pp. 127-29). Not even that he was first black president of the Harvard Law Review? His first and foremost claim to ending racial divisions is that he got a lot of folks to reach into their wallets? Obama is a persuasive guy; if he hadn't gone into politics he could probably have gotten multitudes to open their checkbooks by selling time shares; this would scarcely earn him Time magazine's Man of the Year.

The article goes on to refer to the United States as a "country where the Confederate flag still flies and people look back fondly at a Jim Crow past." This is, of course, like saying the U.S. is a country where people are fond of theft. There are thieves, of course, but that scarcely means we are a nation of thieves. And there are a few bigots--a very few--who might fondly remember when Rosa Parks was told where to sit, but these folks are insignificant dolts who live in their own world of hatred. For Woolman to speak of those who fondly remember a Jim Crow past, as though such folks are common is rather unsettling.

Well, enough about trivial articles you can read in a minute and a half. February's designation as Black History Month makes this a great time for me to mention two books on the history of race in America. These are books I wish every American would read. One is C. Vann Woodward's The Strange Career of Jim Crow, first published in 1955. If you ever saw a historical photograph of a water fountain with an adjacent sign declaring it to be for "Whites only" and wondered how in blazes our society managed to descend to such depths, Woodward explains it in about 230 pages.

A much longer book is Richard Kluger's Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality, first published in 1975. This is a very scholarly and complete look at the school segregation decisions. Kluger dives into the background on each of the five cases that eventually were lumped together into the Brown decision, so there is lots of information on what happened not only in Kansas, but also in South Carolina, Virginia, Delaware, and Washington, D.C. Here's one indicator of how thorough Kluger's tome is: there are about thirty pages of biographical information on the nine Justices sitting on the Supreme Court that ruled on Brown. A book that has three pages on Harold Burton and that is almost 800 pages long minus the notes and index could easily be tedious reading, but Kluger grabs your interest through the entire volume.