Democrats Undermine Their Own Position in Fight For USSC

The Right has been working feverishly these past 25 years to turn back the clock in America. One key front in that effort is to hijack the federal judiciary. On the face of it, their position sounds somewhat reasonable. The doctrine of Originalism states that judges should interpret the Constitution as the Framers intended. Yet this doctrine is the fig-leaf that hides the Right's true intent to undermine the right to choose, other rights derived from the unenumerated right to privacy, as well the entire New Deal social safety net. For more on this do a web search for the "constitution in exile" movement.

With the Samuel Alito hearings now under way it's time to ask are Democrats really doing all they can to stop another radical right-wing justice like Scalia or Thomas from getting on to the USSC? Or is the Democrat's game plan fatally flawed?Are they concentrating on tactical issues on how to stop some nominees at the expense of a broader strategic effort to counter the Right? I believe they are. Missing from their efforts are attempts to move beyond their targeted constituencies in the pro-choice, pro-affirmative-action, pro-environment movements to educate the broader public on the dangers to the Constitution itself if radical Rightists take control of the Supreme Court. This strategic failure leaves the Right's claims to merely want to restore the Constitution unchallenged.

When it comes to the issue of rights... say the right of unenumerated privacy, Democrats have the immense weight of the 9th and 10th amendment on their side....

9th: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

10th: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

As to original intent of the Bill of Rights and particularly the 9th, James Madison wrote:

"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution."
SOURCE: www.usconstitution.net/madisonbor.html#Sec5

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Madison wrote in a letter to Jefferson explaining why he didn't at first believe the omission of a Bill of Rights in the original Constitution was of much consequence:

"I have not viewed it in an important light --
1. because I conceive that in a certain degree ... the rights in question are reserved by the manner in which the federal powers are granted."
SOURCE: http://www.constitution.org/jm/17881017_bor.txt

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Since the Constitution was based upon the premise that government was only permitted specific powers granted by the People, Madison believed the rights of People would never be in jeopardy. The 9th amendment places the burden on GOVERNMENT to prove there's a legitimate social need before government can restrict individual rights. It does NOT place the burden on citizens to fight the government to establish a right which Constitution by its nature, bolstered by the explicit wording of the 9th amendment, already protects.

Sometime in our history this original intent was lost or found inconvenient.

Democrats seem to ignore this clear wording of the 9th amendment and the historical evidence on original intent, and seem preoccupied with stare decisis, those previous court rulings that "establish" rights... cases like Griswold v Connecticut and Roe v Wade.

Worst... Justices like Scalia want to further bastardize the Constitution. Scalia believes that unless a right is specifically enumerated... it does not exist. His only concession to expanding rights is to suggest those now deprived of rights can legally establish them though the legislative or amendment process.... something he knows can take decades if not generations. He believes it is not the role of the courts to rule that governments have unjustly violated rights.

If his views on rights aren't extreme enough... Scalia also has no use for the 10th amendment. Instead of government only having powers that have been granted it, Scalia believes it is free to do anything that is not prohibited. If no one thought of prohibiting the government from issuing a national ID card... Scalia believes it's permissible. Here's a critique of Scalia from the Right by Sheldon Richman:

"Scalia here is saying that the government legally may require everyone to carry an ID unless the people amend the Constitution to prohibit Congress from enacting such a measure. His point is painfully clear: the government can do anything unless the Constitution expressly forbids it. No surprise here; Scalia has long made his views known. They are horrifying nonetheless.

His views are based on an incorrect — indeed, a pernicious — notion of what the U.S. Constitution was and is supposed to be. In fact, he stands the Constitution on its head. Instead of a document that protects individual liberty by reining in government power, Scalia would make it one that protects government power by reining in individual liberty."

SOURCE: http://www.fff.org/freedom/fd0206c.asp

In the long run Democrats have made a strategic blunder by failing to expose the hypocrisy in the doctrine of Originalism and counter it with a similar over-arching philosophical approach to Constitutional law. They need to educate the public and inoculate them against the Right's game plan. Yet even when Kerry had the ear of the nation during the 2004 presidential debates, he stayed with traditional Democratic appeals aimed at particular Democratic constituencies and Republican women who want to protect the right to choose.

Tactically I believe that Democrats on the Senate Judiciary Committee need to rethink their game plan. Alito will be well coached and his interactions with sympathetic senators will be choreographed for the cameras. He can also hide behind judicial ethics which requires nominees not give any clear answers about any specific issue might come before the courts lest they seem not to be impartial. While the latter can provide ample room behind which to hide his true judicial philosophy or political bias, a closet Originalist can't dodge a more general discussion about the original intent of the 9th and 10th amendments.

Sadly, Democrats don't have much more respect for the 9th than Scalia or Thomas... and it's putting all our rights in danger.


ulTRAX


For primary historical material on the origins of the Bill of Rights please visit this outstanding site: http://www.constitution.org/dhbr.htm

Who Mourns American Democracy?

International Institute for Democracy and Electoral Assistance (IDEA) writes: "A flourishing democracy presupposes citizens who care, who are willing to take part, and capable of helping to shape the common agenda of a society. Participation, whether through the institutions of civil society, political parties, or the act of voting, is increasingly being seen as an essential prerequisite of any stable democracy."

By that standard American democracy is on life support. According to IDEA during the 1990s, the US ranked 140th of 163 nations in voting turnout. On average, over the past 30 years 61% of the voting age population (VAP) have NOT participated in federal mid-term congressional elections! But just because the majority of citizens stay away from the polls meaning and the ruling party often represents about 19-20% of the citizens, does not mean the system will collapse. As long as the press, the major parties, or the public are not concerned, the system can continue to limp along on its own momentum. Yet that lack of concern shows a certain disdain for democracy itself.

The ability to fix what ails our system is entirely dependent on understanding the problem. Yet, despite the seriousness of the situation, real reforms are not on the radar. Those in the political mainstream such as http://www.yvoteonline.org/ and http://www.vanishingvoter.org/ try to engage young voters while the political parties concentrate on minor reforms like Motor-Voter to make voting easier, campaign finance laws to get money out of politics, and verifiable black box voting etc. All are of the above are desirable but all also miss the mark. What those who back these mainstream efforts refuse to acknowledge is that in our system we can have:

100% citizen participation
100% public financing
100% vote count accuracy

....and a candidate rejected by the People can still become president... and 17.6% of the population will still get a 52 vote majority in the Senate. Together they can hijack the federal judiciary and enter the US into international treaties opposed by the majority of the nation.

In a democracy the purpose of an election is to accurately measure the Will of the People in order to guide the direction of government. So if election losers can take office, and the minority can rule, what purpose do elections serve here in the US?

In a world where 86% of the other democracies have higher VAP participation than the US, it's not unreasonable to ask whether there's something about our American system that creates disincentives to voting.

Anyone who values basic democratic principles as the basis for self-government would immediately see four layers of dysfunctionality in our system:

The first is that our winner-take-all election system does not accurately measure the Will of the People. There are better systems that include instant run-off voting and proportional representation. As a result, many Americans realize that their votes just don't count. Voting their conscience might never get them any representation. Many Americans are just tired of voting the lesser of the evils. And with no run-off provision, a divided majority can lose to a united minority resulting in minority rule.

Second... the above election system has given rise to our two party system. No it wasn't handed down on a slab. It's an accident of history. Sizable political minorities may exist nationally but can never muster a win in any district or state. The result is those citizens are perpetually deprived of representation. So neither does the election accurately measure, nor does the political system reflect, the Will of the People. Many citizens are disgusted that our "2 party" system offers so little choice and the parties refuse to deal with important issues.

Third, if the above wasn't bad enough, our system can be both un- and anti-democratic. It contains a number of vote weighting/dilution schemes that give SOME citizens bigger votes at the expense of others. It now gives 15% of the population 50% of the Senate seats. The anti-democratic EC can overturn the Will of the People and impose upon the nation a candidate who was REJECTED in an election. In a curious twist, the smallest 38 states needed to pass an amendment only contain about 38% of the population. Whenever there are vote weighting schemes there is the possibility of minority government. House and Senate rules compound the problem. Rules that permit seniority privilege give the constituents of SOME senators and members of congress more power than others. Gerrymandering can permit the minority party to hijack the House of Representatives. In 1991 the Texas Democrats rigged the state to get 70% of the votes with about 50% of the votes. Tom DeLay merely reversed that. We now have a situation where candidates are picking their voters.

Last, the federal system is virtually reform-proof. The Framers provided no protection against demographic trends giving a dwindling minority in the small population states increasing powers. Right now mere 3.8% of the population in the 12 smallest states can block any amendment.

As a result I suspect most Americans are stuck between the Jeffersonian ideal of self-government they learned in grade school, some need to put the Framers on a pedestal... and the reality of how poorly our system actually allows self-government. What's the point in having an election if it doesn't accurately measure the public will? Without either major party or the press discussing real reforms and given the inflexibility of our system, citizen apathy is a pretty reasonable response.

Sadly, the Democratic Party, where democratic reforms SHOULD be originating, prefers to game our anti-democratic and dysfunctional system rather than promote true democratic reforms.

revised: 3-13-08

ulTRAX

What If There Was An Election And Nobody Came?

In the last article I raised the question whether US citizens have become disenchanted with our electoral/political system. If they are, what is the evidence? If citizen participation in their democracy is dropping, at what point is the system's moral legitimacy called into question? 90% 80%? 70%? Dare we go lower?

I suspect those who belong to the two major parties here in the US as well as those who can't articulate their dissatisfaction with our electoral/political systems suffer from a form of myopia. When it comes to elections they see only that the glass is half full: vote totals. They ignore the half that's empty: non-participation. The press is no better.

This myopia leads to elections being described as "landslides" when, for instance, Reagan in 1980 only received a mere 26% approval from the voting age population (VAP). Another aspect of this myopia is when the press artificially contrived the simplistic blue/red state dichotomy. Others think they bring a more sophisticated view by introducing shades of purple and pink. In reality, depending on the election, only about 40-50% of the voting age population (VAP)is voting for one of the major parties and 50-60% is not bothering to vote at all. So what great insights can the press bring us when they ignore 50-60% of the population?

Let's look at the numbers.

Here are some VAP voting statistics for the US from:
http://www.idea.int/vt/country_view.cfm?CountryCode=US

This site does not yet cover the last 2 US elections. But since they do cover the previous 30 years they are, none the less, revealing. The numbers reflect the percentage of the total VAP that voted in each federal election between 1970 and 2000. If you've only looked at the glass being half full, you're in for a shock:

UNITED STATES CONGRESSIONAL VOTE
1970 46.6%
1972 55.2%
1974 38.2%
1976 53.5%
1978 37.2%
1980 52.6%
1982 39.8%
1984 53.1%
1986 36.4%
1988 50.1%
1990 36.5%
1992 55.1%
1994 38.8%
1996 49.1%
1998 34.7%
2000 46.6%

45.2% is the 30 YEAR AVERAGE VAP participation for ALL congressional races.

38.5% is the 30 year average VAP turnout just for OFF-YEAR congressional years.

There is a clear bump in the numbers during a presidential election year and rates. 51.9% is the average VAP turnout for congressional races in presidential years.

US PRESIDENTIAL RACES
1972 55.2%
1976 53.5%
1980 52.6%
1984 53.1%
1988 50.1%
1992 55.2%
1996 47.2%
2000 49.3%

The average VAP turnout between 1972 and 2000 for just presidential races is 52%.

So if the average congressional race turnout is 45.2%... what does that say about our system? It means that some 54.8% of the VAP is not voting. According to the http://www.sentencingproject.org/pdfs/barredforlife.pdf some 4.7 million felons have been disenfranchised and while sizeable that makes up only about 2-3% of the VAP. The real explanation lies elsewhere.

But it also means that those elected to the Congress and the Senate do NOT have the approval of the majority of the US citizens. They are there at the behest of, and beholden to, a minority of US citizens. Worst, since Congress and the Senate are often split down the middle... the ruling party may only have the approval of 23% of the VAP and the president only about 26% approval!

Which brings us back to my original questions. Have US citizens become disenchanted with our electoral/political system. If they are, what is the evidence? If citizen participation in their democracy is dropping, at what point is the system's moral legitimacy called into question? 90% 80%? 70%? Dare we go lower?

In a democracy the opinion of every citizens should count for something. Yet in the US the two Parties, the press, the system itself, are all ignoring between 48-62% of the population.

So what are those non-voters telling us?


ulTRAX

The Insidious Currents Of Anti-Democratic Government.

The Electoral College might be seen as a curious feature of the US Constitution but it's in keeping with other Constitutional vote weighting/dilution formulas such as the Senate and the amendment process. All are designed to magnify the voice of small states in a manner not consistent with their actual populations. In the case of the EC, the formula provides for 100 wildcard votes out of 535 which are distributed equally, 2 for each state. Where tiny Wyoming would get 1 EC vote if House apportionment were used, it now gets 3 EC votes. The net effect is Wyoming citizen's vote for president weighs about 3.5X that of a California citizen's vote... and whenever there are vote weighting/dilution schemes... there is the possibility for a minority candidate to win an election.

But the effects of such vote weighting/dilution formulas are unpredictable. In Election 2000 this formula gave each citizen's vote in Bush's Florida lead 1013X the weight in deciding the outcome of a citizen's vote in Gore's national lead. Here are the official Federal Election Commission results for Election 2000:

GORE: 50,999,897 (48.38%)
BUSH: 50,456,002 (47.87%)

Gore won a 543,895 vote plurality in the national vote.

The Florida vote was:

BUSH: 2,912,790
GORE: 2,912,253

Bush won Florida by 537 votes.

Now the US does NOT have a popular vote and Gore did NOT win a majority. But if the US had a run-off system, no doubt most of Nader's 2,882,955 votes (2.74%) would have gone to Gore.

The effects of anti-democratic vote weighting/dilution formulas are both unpredictable and insidious. According to an article in Mother Jones Clarence Thomas was confirmed by Senators who represented less than 50% of the US population. Thomas became a deciding vote in Gore vs. Bush which freed the anti-democratic EC formula to take over "electing" Bush. While the nation clearly preferred a liberal/progressive agenda, it instead got a radical Right administration which pushed for irresponsible tax cuts, son of Star Wars, etc. Bush was then free to abuse the powers of his office to insure the GOP captured the Senate.

US and world history were changed not though a democratic process of self-government... but though the machinations of an anti-democratic system.

The world's only superpower is out of the hands of its own population and Americans just turn a blind eye. The real danger is the People have become so alienated from our system they are dropping out.


ulTRAX

How Democratic Is The US Constitution?

"How Democratic is the American Constitution" is the title of a book by Robert Dahl, a distinguished political science professor from Yale. To quote the book liner: "Refusing to accept the American Constitution as sacred text, Dahl challenges us all to think critically about the origins of our political system and to consider the opportunities for creating a more democratic society".

This task is made more difficult because the principles underlying
American "democracy" are rather schizophrenic. On the state level the People are sovereign. On the federal level we have a system of dual sovereignty... where the states and the People have suffrage and are both represented in Washington. Given our origins from sovereign colonies and the hardball politics of the Constitutional Convention, dual sovereignty was probably the only alternative at the time. Yet did the Framers' endless system of checks and balances set the primitive politics of 1787 in cement? Is the structure of the Constitution so rigid it's virtually reform-proof? Does the concept of dual suffrage make the US Constitution un- or anti-democratic?

As I wrote in a previous article, we're raised to understand why the Constitution is as it is. We were never encouraged to critique it or ask what desirable principles were compromised away at the Constitutional Convention. We are also raised to think how states and citizens within those states are represented. We're not to think about how any given CITIZEN is represented. Yet if we do, we uncover a hidden political realm that calls into question the official justifications for our system... thus its moral legitimacy.

As Hamilton wrote in Federalist 22 sophistry may require otherwise, but for all intents and purposes those sovereign states are merely the PEOPLE who live within. In actual practice the Constitution's recognition of state sovereignty is manifest as a series of anti-democratic vote weighing/dilution formulas that ultimately grant some CITIZENS a bigger vote than others based upon nothing else but their choice of state residence. These formulas underlie the Senate, the Electoral College, and the amendment process. In 1964 the Supreme Court ruled such formulas were illegal on all other levels of government. Was this the nation's first Affirmative Action plan?

The anti-democratic aspects of such schemes are mathematically verifiable. Currently about 15% of the population gets 50% of the Senate seats and it may soon be 10%. A Wyoming citizen's vote for president weighs about 3.5X that of a California citizen's vote. In 1900 the population ratio between the biggest and smallest states, California and Wyoming, was 16 to 1. Using 2005 US Census estimates it's now 70.9 to 1. This means any Wyoming citizen's vote for the Senate weighs about 70.9X that of any California citizen's vote. Here are the numbers. It shows a bumpy but clear demographic trend that is making the US Senate, therefore the Constitution itself, more and more anti-democratic.

2005... 70.945 : 1
2000... 77.019 : 1
1990... 65.610 : 1
1980... 50.402 : 1
1970... 60.078 : 1
1960... 47.618 : 1
1950... 36.437 : 1
1940... 27.547 : 1
1930... 25.169 : 1
1920... 17.627 : 1
1910... 16.288 : 1
1900... 16.049 : 1

When it comes to the amendment process about 3.8% of the population in the 12 smallest states can theoretically block any amendment. Some might believe that this insures that there must be vast unanimity before any amendment is passed. Not true. There is NOTHING in the Constitution to insure this. In fact the 3/4 smallest states that can ratify any amendment now consist of less that 40% of the population.

Then there's Election 2000. The anti-democratic EC formula gave each citizen's vote in Bush's Florida lead 1013X the weight in deciding the outcome of any citizen's vote in Gore's national lead. More on this in a future post.

In my last article I listed the elements that I believed insured a government is morally legitimate. I started with these two:

* Legislators represent people, not trees or acres.
* Legislators are elected by voters, not farms or cities or economic interests.

The above was taken directly from a 1964 US Supreme Court voting rights case "REYNOLDS v. SIMS" which can be found here: http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=377&invol=533

"Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system."

It goes on to make the moral case for one person, one vote... where all votes weigh the same. Unfortunately this moral standard does not, can not under current Constitution, apply to the federal government itself. Yet unless it does, we'll have more Election 2000s where the anti-democratic EC allows the minority to legally seize control of the government against the will of the majority.

(revised 3-25)

ulTRAX