A New Constitution?

What follows is the beginning of an article in The Atlantic from several years ago that makes a case for a new U.S. Constitution. Many thoughtful people have called for a Constitutional Convention to replace our aging national framework.

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The U.S. Needs a New Constitution--Here's How to Write It

Let's face it: What worked well 224 years ago is no longer the best we can do.

by Alex Seitz-Wald and National Journal, Nov. 2, 2013

America, we've got some bad news: Our Constitution isn't going to make it. It's had 224 years of commendable, often glorious service, but there's a time for everything, and the government shutdown and permanent-crisis governance signal that it's time to think about moving on. "No society can make a perpetual constitution," Thomas Jefferson wrote to James Madison in 1789, the year ours took effect. "The earth belongs always to the living generation and not to the dead .… Every constitution, then, and every law, naturally expires at the end of 19 years." By that calculation, we're more than two centuries behind schedule for a long, hard look at our most sacred of cows. And what it reveals isn't pretty.

If men (and, finally, women) as wise as Jefferson and Madison set about the task of writing a constitution in 2013, it would look little like the one we have now. Americans today can't agree on anything about Washington except that they want to "blow up the place," in the words of former Republican Senator George Voinovich as he left Congress, and maybe that thought isn't so radical.

Clocking in at some 4,500 words—about the same length as the screenplay for an episode of Two and a Half Men—and without serious modification since 18-year-olds got the vote in 1971, the Constitution simply isn't cut out for 21st-century governance. It's full of holes, only some of which have been patched; it guarantees gridlock; and it's virtually impossible to change. "It gets close to a failing grade in terms of 21st-century notions on democratic theory," says University of Texas law professor Sanford Levinson, part of the growing cadre of legal scholars who say the time has come for a new constitutional convention.

Put simply, we've learned a lot since 1787. What was for the Founders a kind of providential revelation—designing, from scratch, a written charter and democratic system at a time when the entire history of life on this planet contained scant examples of either—has been worked into science. More than 700 constitutions have been composed since World War II alone, and other countries have solved the very problems that cripple us today. It seems un-American to look abroad for ways to change our sacred text, but the world's nations copied us, so why not learn from them?

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If you are interested in reading the rest of this article, click here:

https://www.theatlantic.com/politics/archive/2013/11/the-us-needs-a-new-constitution-heres-how-to-write-it/281090/

A Supreme Court Case for Monday

On Tuesday, we'll consider a particular Supreme Court decision regarding the person shown below. Her grave's headstone tells a confusing story: "born" is clear, but both "departed" and "at peace," with different dates separated by years? The justices wrestled with this case and briefly in class so will we.

Supreme Court Humor

There's not much available. Check the cartoon below.

I'll take Independence Day off and will resume the blog and checking email and the like on Friday, July 5.

The Winner and Loser

What do the presidents below have in common?

They all won the Electoral College vote while losing the popular vote.

Imagine how different the history of the United States might be if these four people had not served, and if their opponents had served instead.

How does this kind of odd election happen? Since a strong majority of presidential elections have produced the same candidate winning both the Electoral College and the popular vote, that's an especially good question. In class, the suggestion was that extremely close elections are more likely to produce that outcome.

In particular, what happened in 2016?  In brief, this:  Clinton won a number of large states such as California and New York by huge margins. She almost won a number of other large states such as Florida and Pennsylvania. At the same time, Trump won a number of small states (which held fewer voters) by big margins, and just barely won several sizable states (not just Pennsylvania and Florida--also Michigan and Wisconsin). Clinton wracked up huge vote totals in big states; Trump won several key states by just a few thousand votes. Total:  nationally about 3 million more people voted for Clinton, but the Electoral College is winner-take-all almost everywhere so Trump's big wins in many small states and narrow wins in several key states was enough to give him the EC edge.

The winner/losers are (clockwise from top left) Rutherford Hayes in 1876, Benjamin Harrison in 1888, Donald Trump in 2016, and George W. Bush in 2000.

That Wordy Executive Orders Slide

Two Final Slides, Scandal Coverage

We didn't get to these in class, but they're important. Here you go.

To answer one obvious question about the third item on the first slide:  yes, sometimes investigations are necessary. Watergate and many other scandals were uncovered at least in part by Congressional investigations, and those illegal actions needed to be exposed. However, using investigation as a political tool (both parties have sometimes done so) rather than to get to the heart of an illegal action is essentially "democracy by other means"--that is, action in a democracy that is not based on elections and policy arguments but instead on smearing an opponent. Too much of that is like fast food--both plentiful and unhealthy.

Young Voters: Data and Trends

Look at this and engage in just a bit of thought.

Add to this information the fact that young voter participation increased in the 2018 mid-term election (over the 2014 mid-term) by about 10 percent. (That does not predict future performance, but is relevant when considering the prospects for future performance.)

What impact might these facts have--at least potentially--on the 2020 elections?

How to Spot Fake News

Three More Interest Group T/F Questions

We can talk about the answers to these in class on Monday if you would like. I believe you'll get them with a bit of careful thought.

Logical Fallacies

Some of the most common--avoid them. This chart was created by Michele Rosenthal. If the chart is too small for you to read, go here:  https://imgur.com/gallery/d5FjTtR

Why People Don't Vote

People who can vote but do not fall into a few categories.

1) Apathetic. These are people who do not believe their vote will matter, or who do not believe their efforts can lead to change, or who are not interested in social and political topics. (As mentioned in class, you may not be interested in government, but the government will be interested in you.)

2) Fearful. Some people are afraid because they don't know how to cast a vote (sometimes even physically, because they have never seen it done), or are wary because they don't understand the issues or candidates. Some fear family or other social pressure to vote in a certain way. (The remedy for fear is often education.)

3) Poor. This includes people who are making a living but have so many things to do that they forget or do not prioritize registering and voting. Most poor people in America are working poor, and they may be constrained not only by income but also by time. Also, many poorer people have less education, and higher education levels correlate directly to political participation.

4) Young. Citizens who are 18 to 29 do not vote at the same rates as older people. In some cases they have not yet been educated about the process; in others, they seem unaware of how government policies and leaders might affect their lives. And some overlap with previous categories. Many young people who do not vote eventually become older people who do.

5) Disaffected. These are people who find the political process or American political culture distasteful or even disgusting. They may be highly interested (not apathetic) but turn their backs on basic principles of participation for a variety of often ideological reasons. (One cure for this approach is to live for any length of time in a dictatorship. Then the limitations of American democracy might seem fewer than the opportunities.)

6) Disenfranchised. Some people do not vote because they have been unfairly removed from the voter rolls, or prevented from voting on some pretext on the day of voting, or intimidated from going to the polls. Yes, those things happened even in the election of 2018.

Which category is shown below?

How to Google It

What They Said: Politics and the Media

More On Symbolic Speech (Testable!)

We did not have enough time in class to fully explore the topic of symbolic speech, in which actions or symbols or art or something else make political comment without using words. Symbolic speech is generally protected. For example, students in the late 1960s who wore black arm bands in high school to protest the Vietnam War were supported by the courts. Armbands are not disruptive in any way but make a statement, in this case political--so, schools that banned the armbands were suppressing free speech and were ordered to stop.

Other cases are more troubling, and it's helpful to remember that an illegal act masquerading as symbolic speech won't fly. Throwing bricks through store windows to protest U.S. trade policy still involves destruction of property and can't be excused as symbolic speech.

What about the examples below? One is protected and one is not. Take a look, and then check the comments below the photographs.

The first is burning draft cards to protest the Vietnam War. This action was not protected because the draft card was considered the property of the U.S. government and destruction of it could result in penalties. (Of course there were other ways to protest the draft or that war.)

The second is burning an American flag. Unless the flag was stolen (a crime), the Supreme Court ruled that burning a flag as political protest is protected speech. Which do we hold most dear, the flag, or the First Amendment? The court sided with the First Amendment. (Note: very few, perhaps fewer than a dozen, flags are burned in political protest in the United States annually.) Some have called for a constitutional amendment to ban U.S. flag burning. When this pops up as a matter of national attention—which it does every five or ten years—loud argument and controversy ensue. The conflict is about how far symbolic speech rights go.

Reminders and a Visual

This will be the last blog post of the week; they will resume on Monday, June 24.

REMINDER 1: your first paper is due on Monday. If you have any questions about the paper, please email in a timely way; I'll be checking email at least once a day this weekend, and plan to check it Sunday early in the evening. If you ask a question by (let's pick a time) 7:00 p.m. on Sunday, you'll get an answer before the paper is due.

REMINDER 2: the first test is on Tuesday. We will spend a little time on test preparation during Monday's class. You may start preparing your note page (one 8.5 X 11 page, both sides, and please do not photocopy handouts--you may rewrite or retype anything on one of the handouts but may not shrink and compile them to make a note page, which is what one creative student did years ago which spurred me to establish a rule; that's one (not so good) way to live forever in an instructor's memory).

Now, a funny and not-funny visual. Different regions of the country face different challenges; states face different natural disasters. This diversity of trouble definitely has an impact on both federal spending for disasters and state government preparedness.

Civil Rights and Liberties Preview

On Monday we'll do test prep and then focus for most the class on civil rights and liberties.

The following three images provide hints about some of the things we'll discuss.

Beer Costs More in Some States

Why? In part because different states tax beer at different rates.

This happens because we have a federal system in which laws about some subjects routinely happen at the state level, while other laws on other subjects typically are covered at the local level. Or the federal (national) level.

This puzzles some European visitors who simply do not encounter different beer taxes in different parts of their country. Americans are generally accustomed to a federal system in which different states often have different laws. We'll explore some more of those in class on Thursday as we cover federalism.

For now, here's a map of how much beer is taxed in the 50 states. California is in the middle of the pack (terrible pun). Which state has the highest beer taxes? The lowest? Does this information help you to decide where to go (and not go) on vacation?

Slides About Amendment Categories From Class

The Constitution and Slavery

Delegates at the 1787 Constitutional Convention argued about slavery on and off that entire long, hot summer.

Many Northern delegates wanted to abolish slavery, or at least phase it out over time. Most Southern delegates, however, wanted to continue the practice because it provided an enormous economic boost to their economy. Some delegates thought slavery was immoral; others regarded it as a justified subjugation of inferiors.

Ultimately, attempts to end slavery failed, mostly because of fears that if slavery was abolished, then several Southern states would leave the country. The Constitution therefore said little on the topic--the convention chose not to use the words "slave" or "slavery" in the final document.

Here's what it did say.

1) The import of slaves from outside of the United States could not be ended or limited until 1808 (about 20 years in the future). In fact, in 1808 Congress did ban the import of slaves though this law was often violated and few of the illegal importers of slaves were caught.

2) Escaped slaves were required to be returned to their owners, even slaves that escaped to anti-slavery Northern states. That law was often disobeyed, too.

3) Slaves were counted as 3/5 of a person for purposes of apportionment (counting how many people live in a state to determine how many representatives that state would send to Washington) and taxation (tax bills were sent to states on the basis of population, unlike the personal income taxes we pay in the present). Counting a slave as 3/5 of a person seems barbaric to nearly everyone today.

In effect, except for a few provisions, the Founders punted on slavery. What was the result?

Most of the 35 million or so people who were slaves in American history were in bondage after 1787. Their lack of rights or choices and their enormous suffering are hard to calculate or imagine.

The controversy over slavery would dominate American politics for eight decades and stir up turmoil and anguish in our national politics.

The Civil War, largely about a nation half slave and half free, would result in perhaps as many as 700,000 deaths. The aftermath of that war, the collapse of the Reconstruction period, still haunt our politics and our national identity.

The failure of the Founders to resolve this issue is perhaps the greatest single failure in the history of our country and reverberates down to the present. They came up with many brilliant solutions to problems, some of which have withstood the demands of time and change, but let us not overpraise them, as the late Assoc. Justice Thurgood Marshall said. They were fallible.

And the issue of slavery shows us how entirely mortal they were.

Candidate Yard Sign