Sunday, September 27, 2009
So it was when I encountered this line on page 222 of Brian McGinty's Lincoln and the Court (2008): "When [Salmon] Chase began his work [as Secretary of]... the Treasury Department, the government had only $3 million on hand and debts that totaled almost $65 million."
That was in 1861, the Civil War was about to begin. The idea of the United States government having only three million bucks--how to relate that to our time? Well look at it this way. According to the U.S. Census Bureau my county, DeKalb County, Georgia is the 75th largest county in the nation. That's big, but not a mega-county like Los Angeles County or Cook County, Illinois. And the county budget adopted for 2008 was over 635 million dollars.
So the annual budget for a large, but not massive county is over 211 times the amount of cash that the entire United States of America had in the treasury 148 years ago. The DeKalb budget is also over nine times higher than the debts the U.S. owed.
We can go a step further. The 2008 budget just for parks and libraries in DeKalb County, the nation's 75th largest county was 35 million dollars, or nearly twelve times the amount of money the U.S. Treasury had on hand in 1861.
That's a lot more fines collected on overdue books. A dollar just ain't what it used to be.
Tuesday, September 22, 2009
That happened to me recently. I'm reading Gordon Wood's massive The Creation of the American Republic: 1776-1787, first published in 1969. Here's what Wood has to say on page 170 about secret ballots during the Revolutionary Period:
"The North Carolina, Georgia, Vermont, and Pennsylvania constitutions and some counties in New Jersey provided for elections by secret ballot (which had been used sporadically throughout the colonies in the previous decades) so that no elector would have 'occasion to recur to any man for advice or assistance.'"
I knew that wasn't what I'd read somewhere else. And it only took me a few minutes of perusing my bookshelves to find the source of my belief that we didn't have secret ballots in this country until much, much later. From pages 142-143 of The Right to Vote: The Contested History of Democracy in the United States (2000) by Alexander Keyssar:
"An indirect and limited means of promoting a literate electorate was the adoption of the secret or Australian ballot (which first appeared in Australia in 1856 and then was implemented in England in 1872)... The first American experiment with the Australian ballot, in Louisville in 1888, was rapidly followed by its adoption almost everywhere in the United States."
Wood has four states and parts of a fifth using secret ballots in elections not only more than a century before Keyssar says the practice had its first American incarnation in Louisville, but seventy-five years before Keyssar declares the Australians invented the secret ballot.
I'd believe either of these two scholarly tomes over wikipedia; nevertheless I checked that website's entry on secret ballot to see what it says. No help; they say that secret ballots were known in ancient Greece and that the first secret ballot in America was used in Lexington, Massachusetts. No date is given for that.
My first thought was that Wood's information must be the correct account. After all, in citation of his assertion that there was a secret ballot in eighteenth century Pennsylvania he refers to Section 32 of the state's 1776 constitution, for Georgia he cites Article X of the 1777 constitution, etc. Those are primary sources from the early days of the republic. Keyssar cites a boatload of secondary sources plus a couple of primary ones, but his primary sources are from much later than Wood's. For instance, Keyssar points to the 1896 Annotated Statutes of Illinois.
But then I realized there was an additional possibility. Perhaps Wood and Keyssar meant different things by "secret ballot." The wikipedia entry refers to this article from The Canberra Times, an Australian newspaper. It defines the Australian ballot as being more than just the voter putting a piece of paper anonymously into a ballot box, which it acknowledges had already been practiced by the Americans and the French. The article asserts that the Australian innovation, widely copied, was that the piece of paper dropped into the ballot box was printed by the government and had the names of all the candidates. "Until then" declares the article, "all modes of paper voting involved the elector supplying his own ballot-paper (or getting it from a third party)."
And so I went back and reread what Keyssar wrote, and I realized that's what we're dealing with here. In the excerpt above I've got ellipses; here is what Professor Keyssar wrote between those marks:
"For much of the nineteenth century, voters had obtained their ballots from political parties: since the ballots generally contained only the names of an individual party's candidates, literacy was not required. All that a man had to do was drop a ballot in a box. Since ballots tended to be of different sizes, shapes, and colors, a man's vote was hardly a secret--to election officials, party bosses, employers, or anyone else watching the polls."
In the early days of the republic, voting was often anything but secret, because the voter had to orally cast a ballot in the presence of the local magistrate, with scores of other folks within earshot (see Simon, What Kind of Nation, 2002, pp. 81-83 for an entertaining account of the 1799 congressional election in Virginia, won by future U.S. Supreme Court Chief Justice John Marshall). So in that sense, Gordon Wood is apparently using the phrase "secret ballot" to mean the practice, picking up steam in the late eighteenth century, of using written ballots instead of announcing one's choice. Alexander Keyssar, on the other hand, is reserving the phrase "secret ballot" for the later development of a ballot that was not simply written, but provided for the voter by the government. No more "electors supplying their own ballot-paper or getting it from a third party," in other words.
Well that's confusing, having two different definitions for secret ballot. It's like "civil law" meaning either that which isn't criminal law, or alternatively meaning the legal system that Napoleon endorsed, and you need to pay attention to the context to know what is being referenced. Personally, I prefer Wood's use of the phrase, because it just seems to me that more people think of a secret ballot as involving not calling out your vote as opposed to the particular characteristics of the paper that gets shoved into the ballot box. (I say that knowing full well that most voting is computerized now, making oral votes and ballot boxes both seem quaint.)
Or maybe I'm wrong and when most of you hear "secret ballot" you think of a disinterested government printing the lists of candidates. Whatever, I still think it's confusing, and for my own purposes I'm going to try never to say or write "secret ballot" again. But what words would I use in its place? How about "Wood Ballot" and "Keyssar Ballot" as replacement phrases, thus emphasizing the distinction between the two? Or use "Australian Ballot" for the government-provided cards and reserve "secret ballot" to mean not having to voice your choice?
Those are possibilities. But then what will we call it when we learn how to vote through mental telepathy?
Thursday, September 17, 2009
Let's get this out of the way first: I'm reasonably certain Cass Sunstein's mother was not called Mama Cass.
Seriously, for Glenn Beck or anybody else to say Cass Sunstein thinks animals should be able to sue human beings in court is quite a bit like saying Sunstein thinks the First Amendment should guarantee freedom of speech. The First Amendment actually does guarantee freedom of speech, regardless of what anyone thinks it "should" do. And animals already do sue people in court, notwithstanding anything Sunstein has proposed.
Just take a look at the heading and first paragraph of this case, from over twenty years ago:
"NORTHERN SPOTTED OWL V. HODEL 716 F. Supp. 479 (W.D. Wash. 1988)
THOMAS S. ZILLY, UNITED STATES DISTRICT JUDGE
A number of environmental organizations bring this action against the United States Fish & Wildlife Service ("Service") and others, alleging that the Service's decision not to list the northern spotted owl as endangered or threatened under the Endangered Species Act of 1973, as amended, 16 U.S.C. § 1531 et seq. ("ESA" or "the Act"), was arbitrary and capricious or contrary to law."
The named plaintiff is a species of bird; Donald Hodel was the Secretary of the Interior under President Reagan. "Northern Spotted Owl v. Hodel" is what lawyers and judges call the "style" of the case; that's what laymen would call the "name" of the case.
Of course, the owls themselves didn't file the papers. We've got some pretty good animal trainers at my petting zoo, but I don't think any of them could teach an owl to fill out a form and pay the fee at the local courthouse. As the first paragraph of the case makes clear, however, environmental organizations acted on the owls' behalf.
This isn't an isolated instance; there have been other cases with names that make a zoologist smile. Two of my favorites are Palila v. Hawaii Department of Land & Natural Resources, and Marbled Murrelet v. Babbitt. Again, it was human friends of these birds instigating the lawsuits on their behalf. The same thing happens anytime the plaintiff is anybody besides an adult human being. That is, there have been lawsuits involving children, corporations, ships--you name it.
There is a famous paper from almost forty years ago by Christopher Stone entitled "Should a Tree Have Standing? Toward Legal Rights for Natural Objects." This was long before anybody had heard of Glen Beck, Barack Obama, or Cass Sunstein. Through the wonder of the Internet, we can read the piece online. Here are two bits from Stone's article, particularly relevant to what we're discussing:
"Nor is it only matter in human form that has come to be recognized as the possessor of rights. The world of the lawyer is peopled with inanimate right-holders: trusts, corporations, joint ventures, municipalities, Subchapter R partnerships, and nation-states, to name just a few. Ships, still referred to by courts in the feminine gender, have long had an independent jural life, often with striking consequences. We have become so accustomed to the idea of a corporation having "its" own rights, and being a "person" and "citizen" for so many statutory and constitutional purposes that we forget how jarring the notion was to early jurists."
"It is not inevitable, nor is it wise, that natural objects should have no rights to seek redress in their own behalf. It is no answer to say that streams and forests cannot have standing because streams and forests cannot speak. Corporations cannot speak either, nor can states, estates, infants, incompetents, municipalities, or universities. Lawyers speak for them, as they customarily do for the ordinary citizen with legal problems."
And sixteen years after this was written, back in 1988, lawyers did, in fact, speak for the northern spotted owl. There's nothing new about a creature having its day in court, Mr. Beck.
Edited to correct misspelling of Glenn Beck's first name. I should know better, for all the times my name has been spelled "Bret."
Wednesday, September 16, 2009
"The seat of government is of great importance; if you consider the diffusion of wealth, that proceeds from this source. I presume that the expenditures which will take place, where the government will be established, by them who are immediately concerned in its administration, and by others who may resort to it, will not be less than a half a million of dollars a year."
Well son of a gun, Madison was right. To this very day, the expenditures of the federal government are not less than half a million dollars a year.
Tuesday, September 15, 2009
An intrepid Senator named Lamar
Bemoaned the work of the several czars;
We listened well that fateful date
When the Tennessean was heard to orate:
"We have an Aids czar, an auto recovery czar
A border czar and a California water czar.
We have a car czar, and a central regions czar
And a domestic violence czar!
"There is an economic czar
An energy and environment czar
A faith based czar and a Great Lakes czar!"
Dear me, I thought, that's an awful lot of czars!
I wonder if any of those czars like green eggs and ham.
By the way, don't the words "Tennessee" and "Tennessean" sound as though they'd be more at home in Dr. Seuss books than in the real world?
Tuesday, September 8, 2009
"When the GOP eventually takes back Congress, one of its first acts should be a statute or even a constitutional amendment, if necessary to avoid separation-of-powers concerns, requiring “czars” to sit through the same Senate confirmation process that cabinet appointees are made to endure." (Emphasis mine.)
A careful reading of the Constitution suggests that an amendment is not necessary; that Congress can put the brakes on president appointed czars anytime it wants. Here's the relevant text from Article II, Section 2:
"(H)e shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."
The emphasis is mine. Congress is granted a power to in effect, say to the president, "You may appoint this particular officer, or that one, and you need no consent from the senate to do so." But by the same token, this seems to empower Congress to tell the president he can't appoint people to fill this office or that one without the advice and consent of the senate.
Note carefully what I'm saying. I'm not arguing that once President Obama named Van Jones "Green Jobs Czar" Congress had any authority to say to Obama, "That's a bad selection; try again." But what I am saying is that Article II, Section 2 means Congress can designate Green Jobs Czar as a position that is not exempt from a need for senatorial confirmation, regardless of who the president nominates.
Monday, September 7, 2009
Here's a friendly reminder that even though a lot of the procedures by which the United States government operates are set out by the Constitution, there is room for the operation of customs and traditions such that what seems unremarkable in one era would be shocking in another. All the Constitution has to say about the appointment of Supreme Court justices is that they are to be nominated by the president with the advice and consent of the senate (Article 2, Section 2). In other words, there is absolutely no reason why, constitutionally speaking, the same process by which Campbell got his seat on the high court in 1852 couldn't also happen today.
But just imagine for a second that this did happen today. There is speculation that John Paul Stevens may be getting ready to resign. Suppose the speculation is accurate and we're about to have a vacancy. Imagine that all eight of the other justices signed a note to President Obama saying that so-and-so is the best man (or woman) to join us on the court, and we respectfully urge you to nominate him. Think that would go over well?
It might be a sad commentary on the politicization of the courts that one's first thought is that this could never happen because there is no way in hell Clarence Thomas and Stephen Breyer would agree on the ideal new colleague. But even if you got past that hurdle, and there was a unanimous judicial recommendation, think of the likely reactions. Some pundits would express outrage at the justices for their audacity, trying to get their two cents in when they are the one branch of the government that is conspicuously left out of the judicial nomination process. Other commentators would point out that if the President did not follow the court's advice, the person Obama ultimately did nominate would be in a very uncomfortable position having to work with colleagues that touted somebody else for the job.
And then what would bloggers, talking heads, and the like have to say about Obama's response to the Court's endorsement of a successor? The President would be in a no-win position. If he gave his approval to the Court's choice, he'd be accused of being a weak executive reduced to rubber stamping a questionable action by another branch of government. On the other hand, if Obama discarded the unanimous recommendation of the Court, some would bellow, "Who does he think he is, not following the advice of eight people who are experts at what makes a good supreme court justice since that's what they themselves are?"
Now just because there is no constitutional reason the selection of a new Supreme Court justice today couldn't go the same route today as it did in 1852, that doesn't mean that what happened with Cambell was a good idea. In fact, I'll go on record that the circumstances behind the Campbell nomination were terrible, largely for the reasons I've sketched above. There's an advantage to a country and a constitution getting a little age on them; as the experiments in democracy have time to simmer it becomes less likely that a bad idea will become an uncontroversial tradition.