Skip to main content

The framers of the Constitution did a lot of things right. The system of checks and balances was a brilliant departure from the notion of government that prevailed elsewhere in the world in 1789. Unfortunately, they made an error; their error was to assume that elected officials would naturally do what is best for the country in order to get reelected. The unfortunate truth is that some politicians would murder their your grandmother to get reelected.

The Preamble says: "We the People of the United States ... [six aims enumerated] ... do ordain and establish this Constitution for the United States of America." This paragraph is stunning; it is awesome; it is inspiring. It is the most important 52 words in all of government.

But the problem is that We the People, contrary to the the lofty aims of the Preamble, have no voice in how we are governed. We the People might clearly recognize that this or that feature of government is actually a bug, but we are powerless to change it.

The recent fiasco is just further evidence of how distant our elected officials are from We the People. We would quickly put an end to the Hastert rule if we could, because it has just cost us $24 billion—$77 for every man, woman and child in the country. It's not even a rule; it's just an idiotic tradition that we have no control over. But the Constitution gives all rule-making authority to the legislators in each chamber. We the People have no say in the matter even when legislators make patently stupid rules.

Below the fold, I will try to develop this idea, and hint at the solution.

I could cite several constitutional amendments that would surely gain the approval of citizens if they had a chance to vote on them: Popular vote for president. Eliminate gerrymandering. Eliminate lobbying or political donations by corporations. Write sane rules for both houses that assure respecting minority rights, but also assure actual decision making. Set up uniform standards for determining voter qualifications and conducting elections.

None of the above have the slightest chance of passage because they are not in the interests of legislators, but merely in the interest of We the People. What the framers of the Constitution neglected is the first three words of the Preamble. I can understand that the founding fathers were reluctant to put We the People in charge of the details of government, and for good reason. I certainly don't suggest that a direct democracy would be a better system. However, the founders should have put We the People in charge of governance—how government works, while our elected representatives should control policy—what government does.

In a previous diary, I made a proposal for the sort of governance that we need. That proposal was not practical because it depends on national and state legislators voting against their own reelection interests.

Well, it's water under the bridge. We seem to be stuck forever with the electoral college, and with gerrymandering, and with corporations running the government instead of We the People. We seem to be stuck with states that concoct ingenious ways to prevent brown people from voting. We seem to be stuck with states that deny women the right to control their basic reproductive functions. But things are not always what they seem.

There are things we can do to mitigate the damage. For example, an enlightened judiciary could eliminate gerrymandering. Just as the Supreme Court in Brown V. Board of Education, established forever the precedent that "separate educational facilities are inherently unequal.", the courts could establish forever the principle that allowing legislators to draw their own district boundaries is bad governance. But to get there from here, we must retain the Presidency and the Senate. Imagine what would happen if the Republicans gained both of these. We would find that every judicial appointment would be a young ultra-conservative, insuring decades of decisions like Citizens United. To me, this is unthinkable.

As vexing as it is that Republicans control the House, it's not the end of the world. It would be the end of the world if they got both the Presidency and the Senate.  Why do you suppose that they have been so obstinate in filibustering so many judicial appointments? Obviously, because they hope to eventually fill those vacancies themselves. I think the most important filibuster reform is to invoke the constitutional option when it comes to presidential appointments. The Constitution says: "Advice and Consent"; It doesn't say "Obstruct". Does anybody doubt that Republicans would invoke the constitutional option in order to appoint the next several decades of our judiciary if they had the opportunity? Then why shouldn't we? Political power, if not used, is meaningless. Isn't that what we learned this month?

How different would the political landscape be if we could assemble a Supreme Court with six or more reasonably liberal justices? Right now, we don't want to see an abortion case before the Supreme Court, for fear the current court would overturn Roe V. Wade. The same is true of gerrymandering, lobbying, or voter rights (as we have recently seen). We are hamstrung by the current composition of the court. We dodged a bullet when we got a favorable ruling on the Affordable Care Act. But if liberal justices were a majority of the Court, we could make real progress on multiple fronts. The courts, if they had the will, could put an end to gerrymandering in single election cycle. We the People haven't the slightest chance to do so with a constitutional amendment.

We Democrats, aided by demographics, will eventually solve the problem of the House, but it won't mean very much if we lose control of the judicial system. The judiciary should be our primary goal. We need to make checks and balances work in our favor. Long term trends favor Democrats as long as we stay focused. Maybe we cannot regain the house in 2014, but we must be sure to retain the Presidency in 2016, and the Senate as well. If we do both, the House will eventually fall into our hands.

I certainly don't mean to suggest that we give up on 2014. Fight like hell for every seat. If we gain but one seat, that is immensely better than losing one seat. But the reality, and the conventional wisdom, is that it will be an uphill battle. If the Republicans maintain their majority in 2014, I think we should try to form a coalition with moderate Republicans to elect a speaker who is not a water boy for the Tea Party nut jobs. This is just common sense. We cannot make progress legislatively with the likes of Boehner holding the gavel in one hand and a martini in the other.

Maybe I'm fantasizing, but I would think that if the Republicans continue their "government by crisis" strategy, that the moderate wing of the Republican party (Is there such a thing?), perhaps the 35 Representatives closest to the center, could turn Independent en bloc (just after the 2014 elections), break with the Republican party, and caucus with the Democrats as a means of restoring the Republican party to a modicum of sanity.

If I were a moderate Republican (perish the thought), I would prefer this to living with the biennial threat of being primaried. As a side benefit, this hypothetical "Gang of 35" (Let's call them the Coffee Party) would wield the balance of power in the House. I suspect that the Coffee Party would have broad appeal among voters, and be therefore immune to primary threats by the crazy right wing.  

OK, enough of my fantasizing. There are probably not enough sane Republicans in the House to realize the opportunity they have, much less to have the political courage to stage a rebellion. My sense is that they are just not smart enough; maybe it's just as well.

The bottom line for Democrats is this: It's all about the judiciary. Keep the Presidency in 2016 as well as the Senate. Craft a progressive judiciary will assure a lasting government by We the People.

EMAIL TO A FRIEND X
Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags

?

More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

  •  I'm not so optimistic re: popular vote (13+ / 0-)

    or gerrymandering.  In OH, an initiative up for popular vote to establish a bipartisan commission just got crushed.  The people considered and roundly rejected the commission.  A popular vote for the presidency, similarly, wouldn't get the approval of the smaller states or the voters therein.

    •  Don't you think that the courts could help (2+ / 0-)
      Recommended by:
      slowbutsure, paradise50

      in the case of the gerrymander?

      ... but He loves you! -- George Carlin -- (-7.25, -6.21)

      by Tim DeLaney on Sat Oct 19, 2013 at 08:46:21 AM PDT

      [ Parent ]

      •  CA followed a League of Women Voters (3+ / 0-)
        Recommended by:
        Tim DeLaney, paradise50, wader

        recommendation for citizens panel.  It worked.

        ...Son, those Elephants always look out for themselves. If you happen to get a crumb or two from their policies, it's a complete coincidence. -Malharden's Dad

        by slowbutsure on Sat Oct 19, 2013 at 09:01:42 AM PDT

        [ Parent ]

        •  Yes, but CA is an enlightened state. (2+ / 0-)
          Recommended by:
          paradise50, side pocket

          What about TX or OK or NC or IN or [fill in the blanks]? How do we enlighten them?

          ... but He loves you! -- George Carlin -- (-7.25, -6.21)

          by Tim DeLaney on Sat Oct 19, 2013 at 09:05:16 AM PDT

          [ Parent ]

          •  ...it happened in California only because... (4+ / 0-)

            ...both houses and the governor are controlled by Democrats.

            What constitutes "enlightened" these days in politics and voting rights = legislatures and governorships in Democrats hands.

            GOP controlled legislatures and governorships = de-evolution and destruction of rights (whether voting rights or control of your body if you're a women).

            It's pretty cut and dried actually...

            Ignorance is bliss only for the ignorant. The rest of us must suffer the consequences. -7.38; -3.44

            by paradise50 on Sat Oct 19, 2013 at 10:09:47 AM PDT

            [ Parent ]

            •  I thought it happend in California (3+ / 0-)
              Recommended by:
              Tim DeLaney, VClib, paradise50

              because a third or fourth attempt by initiative finally got enough votes.

              One other thing that helped in California was that the previous system was gerrymandered to protect incumbents, not one party or another but an eternal status quo. That problem, people appeared willing to solve.

              into the blue again, after the money's gone

              by Prof Haley on Sat Oct 19, 2013 at 10:32:19 AM PDT

              [ Parent ]

      •  Not really. The Courts can't strike something (6+ / 0-)

        down because it is bad.  If you want a federal court to strike down the process by which the drawing of district lines is done by state legislatures, you have to point to a provision in the Constitution that it violates.  

        The issue of limits on the drawing of districts for the House was addressed by the SCOTUS.  Cases like Baker v. Carr determined that districts could not be drawn by areas if that resulted in vastly different numbers of voters in each district -- the famous "one person, one vote" principle.  

        As a result, drawing district lines is almost always going to favor, or hurt, someone.  For example, minority-majority districts overwhelmingly vote Democratic.  I don't what Constitutional provision you would allege is violated by the system whereby Congress has (pursuant to the Constitution) left it to the states to draw district lines within each state.  

        •  The 14th amendment, Section 1 (1+ / 0-)
          Recommended by:
          paradise50

          Is entirely sufficient to justify eliminating the gerrymander.

          ... but He loves you! -- George Carlin -- (-7.25, -6.21)

          by Tim DeLaney on Sat Oct 19, 2013 at 09:08:51 AM PDT

          [ Parent ]

          •  Care to explain how you reach that conclusion? (6+ / 0-)
            Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
            There's a long history of interpreting that clause, and I don't see any theory that would prevent Congress from giving states the right to draw districts within their state lines.  As long as there's no discrimination based on race (and the closest thing we have to that in drawing district lines are the minority-majority districts that favor democrats), and as long as people have their vote counted equally through the Baker v. Carr principle (you can't have one district with 10,000 people and one district with 1 million people)  I can't see the equal protection challenge.  I can't imagine the SCOTUS finding that the passage of the Equal Protection clause somehow eliminated the ability of states to decide how to draw district lines.  

            The Equal protection clause does NOT provide a basis for striking down anything people think is bad.  The Constitution clearly allows elected officials to make really  really bad decisions as long as they don't exceed their constitutional authority and they don't discriminate based on race, ethnicity, etc.  

            •  coffeetalk, please see my reply to VClib, below. (2+ / 0-)
              Recommended by:
              paradise50, VClib

              The phrase "equal protection" is capable of being interpreted by the courts, just as the court acted in Brown V. Board of Education.

              I recognize that your argument has validity in a very narrow sense. But if a court were to decide that gerrymandered districts did not afford "equal protection" to the state's citizens in a broader sense, who could disagree?

              The difference is between theory and reality.

              ... but He loves you! -- George Carlin -- (-7.25, -6.21)

              by Tim DeLaney on Sat Oct 19, 2013 at 09:35:21 AM PDT

              [ Parent ]

              •  That's just wrong. I responded to you below. (7+ / 0-)

                Brown v. Board of Education struck down discrimination based on race.

                Unless you think minority-majority districts are unconstitutional, I have no idea why you think Brown v. Board of Education could apply to drawing district lines.  

                You need to read cases that DO address drawing district lines, like Baker v. Carr.  

                "Equal Protection" does NOT mean all citizens have to be treated equally in every single way.  Our government discriminates all the time.  For the most part, discrimination is ok if government has a "rational basis" (which generally means you aren't doing something based on animus against people based on race, ethnicity, religion, etc. -- government has a right to make these kinds of decisions even if the SCOTUS thinks their reason is a really bad idea).  Our government discriminates against people based on age (only certain aged people can vote) based on income levels (we tax people differently based on income level) on political views (the President clearly takes political views into account in the hundreds (maybe thousands) of political appointments he is allowed to make throughout the government.  

                If you were correct that people simply had some right to be treated equally, our income tax system would be unconstitutional.  It definitely does NOT treat all people the same.  

                You can't just say "people are entitled to equal treatment."  That's simply not true.  People are entitled not to be discriminated against, based on race, ethnicity, religion, etc., (what the SCOTUS has called "suspect classes") unless government has a compelling government interest that requires such discrimination.  

                You really should not cite the Equal Protection clause without knowing anything about it.  Your statements are very misleading.  

            •  You two are arguing at cross purposes (2+ / 0-)
              Recommended by:
              Tim DeLaney, paradise50

              Equal Protection by itself has not been enough for the courts to strike down partisan gerrymanders. However, the Constitution explicitly gives Congress the authority to override states on anything to do with Federal elections (as in the Voting Rights act), including making rules for districting.

              Congress could mandate compact, contiguous, perhaps even convex districts, and could take many election functions out of the hands of partisan elected officials. It could even mandate that Secretaries of State and other high election officials not be allowed to be partisan campaign chairs, and that Attorneys-General running for Governor cannot have anything to do with election law during their campaigns. Among other shenanigans.

              Ceterem censeo, gerrymandra delenda est

              by Mokurai on Sat Oct 19, 2013 at 02:05:18 PM PDT

              [ Parent ]

              •  You make a good point. (1+ / 0-)
                Recommended by:
                paradise50

                So far, the courts have not seen fit to address gerrymandering definitively. I think that could change.

                The problem is that whatever Congress enacts, it can repeal. Judicial decisions are far more stable. Stabler yet would be a constitutional amendment. Good luck with that.

                ... but He loves you! -- George Carlin -- (-7.25, -6.21)

                by Tim DeLaney on Sat Oct 19, 2013 at 02:18:14 PM PDT

                [ Parent ]

      •  Tim - I don't think so (5+ / 0-)

        I don't think the SCOTUS can make fundamental changes in gerrymandering. That would be a real over reach by the judiciary under the Constitution, which gives the power of drawing district lines to the states. Here in CA the voters have taken the forming of district lines, for both federal and state offices, completely out of the hands of politicians. However, as johnny w. notes above voters in other states have rejected that approach. Drawing legislative districts is a state matter and the courts can only intervene if the districts are drawn in a way that they discriminate.

        One other note, it would take a constitutional amendment to restrict corporate, or any other, lobbying which is now a constitutionally protected right. There is also a balancing issue. Congress can through its legislative function economically harm a private business, including putting them out of business. I know this personally because I built a very successful business in the early 80s that was completely ended with the stroke of a pen. When a legislative body has that kind of power there has to be some way for those affected to reach the politicians and communicate their point of view.

        "let's talk about that"

        by VClib on Sat Oct 19, 2013 at 09:14:59 AM PDT

        [ Parent ]

        •  I think gerrymandering can be eliminated (1+ / 0-)
          Recommended by:
          paradise50

          on "equal protection" grounds.

          Look at the political landscape before Brown V. Board of Education. "Separate but equal" was theoretically viable, but the court, in their ruling, recognized the reality that it was inherently unequal.

          Similarly, gerrymandering could be recognized as violating the equal protection clause of the 14th amendment. Sometimes, the court must recognize reality, rather than abstract notions such as 'State's Rights'.

          ... but He loves you! -- George Carlin -- (-7.25, -6.21)

          by Tim DeLaney on Sat Oct 19, 2013 at 09:25:53 AM PDT

          [ Parent ]

          •  That makes no sense. (4+ / 0-)

            The Equal Protection clause is not grounds for challenging anything bad.  Brown v. Board of Education relied on the Equal Protection clause because government was discriminating based on race.  

            Where's the discrimination based on race, ethnicity or religion that subjects the drawing of district lines to strict scrutiny?  

            The most obvious consideration of race in drawing district lines is in creating minority-majority districts, which overwhelmingly vote Democratic.  Are you saying those are unconstitutional?  

            You can't just say "the Equal Protection clause prohibits gerrymandering." What principle prohibits states from drawing district lines so that a lot of people with the same political outlook end up in a district together?  

            I linked you above to a history of the interpretation of the Equal Protection clause.  Please read that before you make any statements about what the Equal Protection clause does, or does not, prohibit.  
             

            •  You say: (1+ / 0-)
              Recommended by:
              paradise50
              Where's the discrimination based on race, ethnicity or religion that subjects the drawing of district lines to strict scrutiny?
              Race, ethnicity and religion are the sole criteria for determining whether citizens are treated equally? I submit that this is an unnecessarily narrow view.

              Gerrymandering treats citizens unequally based on their political preference. Anybody who thinks otherwise is unaware of the motives and consequences of gerrymandering.

              Do you hold that political party X is entitled to deprive political party Y of equal participation in the electoral process? Why is this not an "equal protection" issue?

              ... but He loves you! -- George Carlin -- (-7.25, -6.21)

              by Tim DeLaney on Sat Oct 19, 2013 at 09:47:58 AM PDT

              [ Parent ]

              •  Sigh. You really need to do some reading (3+ / 0-)
                Recommended by:
                paradise50, VClib, Karma Facilitator

                about the Equal Protection Clause.  Those are called "suspect classes" and discrimination against them is subject to strict scrutiny.  

                For other kinds of discrimination, like age (we only let those 18 years old and above vote) like income (we tax people differently based on income) like your profession (we require things of certain professions/jobs and not others) like the kind of business you run (we treat different kinds of businesses differently) like whether you have children or not (you are given certain tax breaks for having children) -- the SCOTUS only uses a "rational basis" analysis.  That means that as long as government has a reason for doing what they are doing -- they aren't doing it just out of spite because they hate a group -- it is constitutional, even if their reason is something the SCOTUS thinks is a really bad reason.  

                That's a really simplistic explanation.  You really need to do some reading before you talk about what the Equal Protection clause does, or does not, prohibit.  

                •  Please, coffeetalk (1+ / 0-)
                  Recommended by:
                  paradise50

                  Can you justify treating citizens unequally based on their political preferences? Isn't this what gerrymandering is all about? Surely, you must recognize the intent and effect of gerrymandering. You are not blind.

                  Gerrymandering has the intent and effect of depriving some citizens of the effect of their vote, based solely on their political affiliation. This is an undeniable fact; it is an empirical fact. It deprives members of the opposing political party of their proper voice in determining how they are governed.

                  Based on your reasoning, why wouldn't it be constitutional for Alabama to forbid Democrats to vote? After all, they are not members of a "suspect class".

                  ... but He loves you! -- George Carlin -- (-7.25, -6.21)

                  by Tim DeLaney on Sat Oct 19, 2013 at 10:14:31 AM PDT

                  [ Parent ]

                  •  ...well I'm gonna muck it up even more... (6+ / 0-)

                    ...the electoral college makes my vote unequal (California) in value vs. a person's in Wyoming.

                    Due to population differences, a Wyoming person's vote is worth almost 6 times as much as a California voter's vote.

                    Then when you look at Senators...things become extremely un-democratic. There are 21 state who's combined populations don't equal California's population (over 37,000,000). California gets 2 Senators...those 21 states get 42 Senators.

                    It turns out the US Senate is the third least democratic political institution on the entire world!...

                    Ignorance is bliss only for the ignorant. The rest of us must suffer the consequences. -7.38; -3.44

                    by paradise50 on Sat Oct 19, 2013 at 10:22:36 AM PDT

                    [ Parent ]

                    •  That's because the Senate was not intended to be (2+ / 0-)
                      Recommended by:
                      Tim DeLaney, paradise50

                      democratic in the sense of representing the population.

                      The United States is just what its name says -- a uniting of separate political entities (states).  The House was intended to represent people.  The Senate was intended to represent those separate political entities -- the States.  

                      •  ...and the "people" the House... (0+ / 0-)

                        ...was intended to represent as envisioned by the framers, were a subset of rich, white men who owned land (or in the case of South Carolina, a minimum of slaves as was pointed out)...

                        Ignorance is bliss only for the ignorant. The rest of us must suffer the consequences. -7.38; -3.44

                        by paradise50 on Sat Oct 19, 2013 at 11:25:12 AM PDT

                        [ Parent ]

                        •  And that was changed. In the same fashion, (2+ / 0-)
                          Recommended by:
                          Karma Facilitator, paradise50

                          you can change the way we elect Senators if you can get a supermajority of the country to agree to amend the Constitution.  

                          The problem that you will have is that the Senate was designed to protect the interests of less populous states, who were concerned that their interests would be overrun by the more populous states if everything was done solely as a matter if the number of voters.  That was part of the great compromise that resulted in the Constitution -- the less populous states were only willing to surrender some sovereignty to the federal government if they had something like the Senate to make sure that the few more populous states could not simply override their interests.  

                          Those same concerns exist today in the less populous states, and would likely prevent any amendment from getting approval by 3/4 of the states.  

                  •  Sigh. I just did. Try to think logically here. (4+ / 0-)

                    The President discriminates based on political affiliation in almost everything he does.  There are lots of people qualified to be on the Supreme Court, but when the President had to fill vacancies, he discriminated against Republicans and/or conservatives.  And if he can't discriminate based on political affiliation, then does he have to treat Republicans in Congress the same as Democrats?

                    Every single member of Congress discriminates based on political affiliation when he/she hires staff.  Every.  Single.  One.  The Equal Protection Clause does not prevent government from discrimination based on political affiliation.  

                    And this is just silly:  

                    Gerrymandering has the intent and effect of depriving some citizens of the effect of their vote, based solely on their political affiliation
                    No, it does not deprive some citizens of their right to vote.  They can vote.  I think what you MEAN to say is that it makes the votes of the minority effectively meaningless, because the majority view in that district is going to prevail.  If that's you view, then I assume that you believe that any Republican living in a minority-majority district, or that is living in a blue state (like California) is having his rights violated because his votes in the Presidential election don't count?  

                    And I'm old enough to remember when, in Louisiana, the "real" election for governor was the Democratic primary, because only Democrats won the general election. (It was pretty much like that from the end of Reconstruction    until Dave Treen was elected in 1979.  I guess Republicans back then were having their rights violated, because it didn't matter who they nominated or who they voted for -- the person picked in the Democratic primary was going to win.  Is that what you are arguing?  

                    What you are essentially arguing is that we all have a right to live in a politically-defined district where people who think like us are the majority, so our vote "counts."  And of course, that's impossible.  

                    I understand your frustration with gerrymandered districts.  I have a serious problem with your argument that the Courts can address it because it's an Equal Protection violation.

                    •  Let me ask four questions: (1+ / 0-)
                      Recommended by:
                      paradise50

                      1 - Do you think that gerrymandering is a good political practice? That is, do you think it contributes to the well-being of the American people?

                      2 - If you answer "no" to question 1, then do you think it is a realistic possibility to amend the constitution?

                      3 - If you answer "no" to question 2, would you favor a SCOTUS decision that effectively ruled out gerrymandering?

                      4 - If you answer "no" to question 3, do you have a solution to the problem?

                      ... but He loves you! -- George Carlin -- (-7.25, -6.21)

                      by Tim DeLaney on Sat Oct 19, 2013 at 10:48:14 AM PDT

                      [ Parent ]

                      •  Answers. (2+ / 0-)
                        Recommended by:
                        paradise50, Justanothernyer

                        1.  No.

                        2.  Not with the present Congress and makeup of state legislatures.

                        3.  I don't see any way that can happen.  The SCOTUS is not there to fix problems.  The SCOTUS is there to tell you when things are contrary to federal law or the United States Constitution.  Period.  The Supreme Court is definitely not there to fix political problems caused because one side lost in the political process.  

                        4.  The solution is, as always in our system, winning elections.  Republicans did that in state elections in 2010, which is the reason Democrats are so unhappy with the results.  Had Democrats done a better job of winning state elections in 2010, it would be Republicans who would be so unhappy now with the drawing of Congressional districts.  

                        If you want to amend the Constitution, the solution is to get a majority of people to elect people who think like you do.  

                        The solution is winning elections.  You can't get the Supreme Court to fix problems caused by not winning elections.  

                        •  OK, but suppose that (1+ / 0-)
                          Recommended by:
                          paradise50

                          The rules, such as gerrymandering, prevent you from winning those elections? Suppose the party in power can, in effect, fix those elections? Are you saying that we are just obligated to live with it?

                          The votes for Democratic representatives greatly outnumbered the votes for Republican representatives in the last election. This was due, at least in part, to aggressive partisan gerrymandering. Do you think this is how things should be?

                          Reflect that the recent fiasco has just cost us $24 billion, arguably because of gerrymandering. Is this a good or a bad thing? Should we not look for a viable solution instead of just resigning ourselves to the obvious idiocy we are confronted with?

                          Gerrymandering has negative consequences. I argue that we should abolish it. The courts could do so, regardless of your attention to the niceties of constitutional law.

                          ... but He loves you! -- George Carlin -- (-7.25, -6.21)

                          by Tim DeLaney on Sat Oct 19, 2013 at 11:11:35 AM PDT

                          [ Parent ]

                          •  Seriously????? (4+ / 0-)
                            The courts could do so, regardless of your attention to the niceties of constitutional law.
                            You think Constitutional law is just a matter of "niceties" that the courts can ignore when they want to?  

                            Wow.  Just wow.  

                          •  May I point out? (1+ / 0-)
                            Recommended by:
                            paradise50

                            That I said YOUR niceties?

                            Not every court is obligated to agree with YOUR opinion. I know you are a lawyer, but really, your opinions are just that.

                            My opinion (which is just that also) is that if courts decided that gerrymandering violated the equal protection clause, that life would go on, and that most voters would applaud the decision. We would have a Congress that more closely reflected the will of the people.

                            I don't see that as a bad thing, in spite of your opinion.

                            ... but He loves you! -- George Carlin -- (-7.25, -6.21)

                            by Tim DeLaney on Sat Oct 19, 2013 at 12:34:42 PM PDT

                            [ Parent ]

                          •  Here's your really big problem. (1+ / 0-)
                            Recommended by:
                            paradise50

                            I provided you with a link to an explanation of the Equal Protection Clause that supported everything I said.  If you want more, there's this and here and another basic summary here.  I also relied on actual SCOTUS cases addressing drawing district lines, like Baker v. Carr.

                            Really, the things I'm telling you are very basic, first year law school stuff.  And all that backup shows it's not "just"my opinion. More importantly, Equal Protection jurisprudence is the Supreme Court's "niceties," not mine.  

                            Please provide some support for your claim that the Equal Protection clause means that states can't consider political affiliation when drawing district lines.  Something.  Anything.  

                            Yes, I'm a lawyer, and the first thing you learn in law school is you can't make up something about what you think the law ought to be and expect it to be taken seriously.  You need support.

                          •  And here's your problem: (1+ / 0-)
                            Recommended by:
                            paradise50

                            You seem to regard constitutional law as static. What is constitutional today must be true for all time. But constitutional law, is still evolving.

                            Consider the Citizens United case. Without getting into the merits of that decision, you must admit that the SCOTUS came to a decision that would have been unthinkable a generation or two ago. Yet there it is, and at least for now it's settled law.

                            Constitutional law is what a majority of Supreme court Justices say it is in any particular decision. In the nature of the process, the nine justices frequently disagree with one another.

                            In your arguments in this diary, you seem to believe that it is impossible or unthinkable that five of the nine justices could come to the conclusion that the gerrymander violates equal protection. If your view is correct, then it would follow that if a gerrymander case came to the SCOTUS, the decision would inevitably be 9-0 in favor of allowing gerrymandering. I don't think this is the case.

                            I am advocating that we Democrats appoint justices that agree with our views. I am advocating that we do this by the democratic process of winning elections so that we can appoint those justices.

                            If your view is correct, then even a Democrat appointed Supreme Court would rule that the gerrymander is perfectly constitutional, because of certain niceties that you favor. I think you are dead wrong. I think that a court with five or more liberal Justices would probably rule against a gerrymander that deliberately puts a thumb on the electoral scales.

                            If they were to rule that way, it would become constitutional, quite irrespective of your opinion. Is this not true?

                            ... but He loves you! -- George Carlin -- (-7.25, -6.21)

                            by Tim DeLaney on Sat Oct 19, 2013 at 01:52:38 PM PDT

                            [ Parent ]

                          •  Citizens United would not have been (0+ / 0-)

                            "unthinkable" a generation ago.  Read it.  It's based on other decisions, including Buckley v. Valeo, where the Supreme Court held (a generation ago, in 1976) that spending money for political speech is a form of speech protected by the First Amendment.  Supreme Court decisions are ALWAYS based on prior case law to a very large extent.  

                            The fact that you cannot point to one single authority, one single case, to support your theory shows just how wrong you are.  

                            And if you think that the Supreme Court just decides things, without basing its decisions on principles from over 200 years of prior case law, shows just how wrong you are.  

                            What I am telling you comes from a Supreme Court case in 1938,  where the Supreme Court explained in what has been called "the most famous footnote in Supreme Court history" what made a category a suspect class.  The principle has been reaffirmed dozens of times since then.   It's what we call "well settled law," and is not going to be overruled any time soon.  Not one single justice has ever in any opinion even hinted that he/she would want to overrule those principles.   The fact that you think that some future Supreme Court is just going to ignore all of that shows that you have no understanding  of Constitutional law or the Supreme Court.

                          •  You continue the same argument (0+ / 0-)

                            in spite of the evident fact that decisions are arrived at by individual justices, not vague principles.

                            And if you think that the Supreme Court just decides things, without basing its decisions on principles from over 200 years of prior case law, shows just how wrong you are.
                            So, are you suggesting that the SCOTUS could not possibly ever decide that the partisan gerrymander is unconstitutional, no matter who those justices were?

                            Your opinion notwithstanding, I think such a decision is entirely possible. If we Democrats appoint the next three or four justices, I suggest it's probable.

                            Were that to actually happen, what would be your reaction? Would you welcome a decision to abolish the partisan gerrymander, or oppose it?

                            ... but He loves you! -- George Carlin -- (-7.25, -6.21)

                            by Tim DeLaney on Sat Oct 19, 2013 at 04:05:33 PM PDT

                            [ Parent ]

                          •  Tim - two generations ago there were no (1+ / 0-)
                            Recommended by:
                            Tim DeLaney

                            campaign finance laws except the Tillman Act of 1907. It's been only since the early 1970s that there have been limits on campaign contribution. Most Court watchers thought that the SCOTUS would strike down all campaign limits in the 1976 case Buckley v Valeo (the famous money equals speech case) and were shocked when the Court upheld the issue of legal limits. Prior to Valeo many Constitutional scholars thought that limits on campaign contributions were not constitutional. In Citizens United both the majority and minority opinions borrowed significantly from Valeo. So no, Citizens United wasn't a surprise or departure from a generation or two ago. Many constitutional scholars, the ACLU, the AFL-CIO, and others said as much in their amicus briefs supporting the plaintiffs and the decision of the majority.

                            "let's talk about that"

                            by VClib on Sat Oct 19, 2013 at 04:41:01 PM PDT

                            [ Parent ]

                          •  OK, I concede that point. n/t (1+ / 0-)
                            Recommended by:
                            VClib

                            ... but He loves you! -- George Carlin -- (-7.25, -6.21)

                            by Tim DeLaney on Sat Oct 19, 2013 at 05:03:26 PM PDT

                            [ Parent ]

                  •  The Constitution does not mean what you wish (3+ / 0-)
                    Recommended by:
                    Tim DeLaney, paradise50, VClib

                    it meant. That applies to you just as much as to Republicans, and you should be thankful for that fact.

                    The exception is when the you in question is one of five on the Supreme Court that really, really, really want something badly enough to lie about the reasons for claiming that it is the law. The rest of us pretty much have to follow case law/precedent. The SC case law is that gerrymanders are generally legal (with some limitations) whenever protected rights of protected classes are not concerned, and are also specifically legal where it is claimed that gerrymanders are being created to protect those minority rights, as in the case of majority-minority districts.

                    The remedies are well known. You (for a very large value of you) can amend the Constitution (Federal or state). You can elect a President who will appoint Supreme Court Justices who agree with your judicial philosophy, and a Senate that will confirm them, or the corresponding actions in a state. You can come up with a new legal theory that current or future Supreme Court Justices (Federal or state) may find compelling. All of these have been used, with occasional success.

                    Or you can try to mount a Constitutional coup, like the recent flirtation with defaulting on the national debt, or threaten armed nullification, secession, or overthrow of the government. The record on these is not promising.

                    Ceterem censeo, gerrymandra delenda est

                    by Mokurai on Sat Oct 19, 2013 at 02:18:43 PM PDT

                    [ Parent ]

          •  Tim - I don't see the logic of that claim (1+ / 0-)
            Recommended by:
            paradise50

            or how it applies to the equal protection clause.

            "let's talk about that"

            by VClib on Sat Oct 19, 2013 at 09:42:05 AM PDT

            [ Parent ]

            •  Here is why, VClib (1+ / 0-)
              Recommended by:
              paradise50

              Gerrymandering treats citizen unequally on the basis of their political affiliation. One cannot deny this without ignoring the obvious intent and effect of gerrymandering.

              To hold otherwise would be to hold that the majority is entitled to oppress the minority.

              ... but He loves you! -- George Carlin -- (-7.25, -6.21)

              by Tim DeLaney on Sat Oct 19, 2013 at 09:54:35 AM PDT

              [ Parent ]

              •  Tim - political affilations have never been (4+ / 0-)

                and could never be, a legally protected class because individuals can change their political affiliation on a whim. The Constitution cannot protect me for something I can change arbitrarily.

                "let's talk about that"

                by VClib on Sat Oct 19, 2013 at 09:59:53 AM PDT

                [ Parent ]

              •  You need to stop. (6+ / 0-)

                First, look up the Equal Protection clause.  "Political affiliation" is not a suspect class.

                Government officials make decisions based on political affiliations every single day.  If you can't treat citizens differently based on political affiliation, then virtually every single appointment by the President of the United States is unconstitutional.  Those are almost ALL based on political affiliation.  

                •  The consequence of this: (1+ / 0-)
                  Recommended by:
                  paradise50
                  "Political affiliation" is not a suspect class.
                  seems to be that the party in power can legally and constitutionally abridge the political rights of the party not in power.

                  I hope that the judiciary would strongly disagree.

                  ... but He loves you! -- George Carlin -- (-7.25, -6.21)

                  by Tim DeLaney on Sat Oct 19, 2013 at 10:23:06 AM PDT

                  [ Parent ]

                  •  ...this ^^^^ it absolutely true... (1+ / 0-)
                    Recommended by:
                    Tim DeLaney

                    ...and only the courts can intervene. Sometimes they do and sometimes they don't...

                    Ignorance is bliss only for the ignorant. The rest of us must suffer the consequences. -7.38; -3.44

                    by paradise50 on Sat Oct 19, 2013 at 10:27:01 AM PDT

                    [ Parent ]

                  •  What political "right" is that? (2+ / 0-)
                    Recommended by:
                    paradise50, VClib

                    The party in power cannot say that people who register Democratic cannot vote.  The right to vote is a fundamental constitutional right, and the party in power cannot take that away.  But of course, gerrymandering does not take away anyone's right to vote.  For the individual, gerrymandering means that you may be in a district where your viewpoint is not the majority viewpoint.  

                    The party in power cannot take away CONSTITUTIONAL rights. But, of course, no one has a CONSTITUTIONAL right to be in a district where the majority has the same political affiliation as they do.  That would be impossible to achieve.  We all can't be in a district where we are part of the majority so our vote "counts."  

                    But this happens all the time:

                    the party in power can legally and constitutionally abridge the political rights of the party not in power.
                    Political rights are determined by politics.   When you lose elections, your side loses "political" rights.  When you lose elections, you side loses the right to pass legislation you want.   Some political rights come with a majority victory, some political rights only come with a supermajority victory.  But political rights are affected by the political process.

                    I understand your frustration with gerrymandered districts.  But gerrymandering is as old as our political system.  What has happened recently is not anything new -- it's simply MORE of what has always happened.  I understand the arguments that it's really, really bad.  But it's not a constitutional issue.

                    •  No, there is no absolute Constitutional right (0+ / 0-)

                      to vote. The Constitution was originally completely silent on that issue, leaving the qualifications of voters strictly to the states, which all originally restricted the vote to White males above a certain age who owned property of a certain value. Legislatures can and do still pass laws to take away voting rights from particular non-protected classes of people, such as felons.

                      We had to have Constitutional amendments to give ex-slaves and women any right to vote at all, but nobody else has even that much protection. Even there, it took explicit legislation to start making votes for Blacks in the South a reality, and that fight is not over.

                      Ceterem censeo, gerrymandra delenda est

                      by Mokurai on Sat Oct 19, 2013 at 02:29:15 PM PDT

                      [ Parent ]

          •  I don't even know what that means (4+ / 0-)

            To "rule out gerrymandering" would leave what principles in place to draw district lines, other than equal population per district?  What does "fair" mean?  No districts drawn to ensure Latino or African American representation?

            •  Drawing districts to ensure Latino or African (0+ / 0-)

              American representation is also gerrymandering.

              You cannot simply abolish gerrymandering, as though the evil were in the word itself. You have to provide a positive set of principles, such as compact, contiguous, even convex districts of approximately equal numbers of registered voters, drawn up by non-partisan boards and administered by non-partisan election officials who are not permitted to be campaign officials at the same time.

              Ceterem censeo, gerrymandra delenda est

              by Mokurai on Sat Oct 19, 2013 at 02:32:41 PM PDT

              [ Parent ]

            •  In theory you could require a mathematical formula (1+ / 0-)
              Recommended by:
              Adam B

              such as minimization of the sum of the perimeter of district boundaries.

              This would of course not only rule out efforts to represent particular groups but also efforts to protect incumbents.

              Of course:

              (1)  there is no constitutional basis for this;

              (2) it might or might not result in the party with the most votes winning the most seats.

    •  I've wondered about Ohio (2+ / 0-)
      Recommended by:
      Tim DeLaney, paradise50

      because it's terribly gerrymandered, and because the voters repealed an awful anti-union law by initiative. It seems like a place where the initiative process could also fix an obviously unfair districting system. This is the first I hear that it's been tried, and rejected. Sorry to hear it.

      On the other hand, the commission now drawing the maps in California was the result of three or four tries. I hope Ohio doesn't give up after just one.

      Pennsylvania and Wisconsin also are majority-blue states with bad maps.

      into the blue again, after the money's gone

      by Prof Haley on Sat Oct 19, 2013 at 10:29:08 AM PDT

      [ Parent ]

  •  Excellent points, all around (3+ / 0-)
    Recommended by:
    Tim DeLaney, slowbutsure, paradise50

    And yeah, it may be time to take a good hard look at the way the Federal Government works, and start implementing some changes in the way the bodies handle their rule making. Course, it was impossible for the founders to have predicted that Roberts rules of order would become so important to lawmaking.

    •  Exactly so. The framers, IMO, had the (1+ / 0-)
      Recommended by:
      paradise50

      very best of intentions, but how could they have known?

      ... but He loves you! -- George Carlin -- (-7.25, -6.21)

      by Tim DeLaney on Sat Oct 19, 2013 at 08:49:02 AM PDT

      [ Parent ]

      •  ...agreed... (1+ / 0-)
        Recommended by:
        Tim DeLaney

        ...the framers were really united in creating a new scene away from England. They were all very excited I'm sure to be doing it. I doubt they thought of a future time when those who lived in this new amazing country would want to tear it apart. I'm certain they thought those who would go into politics would be really, really into the country.

        How could they see a future when Citizen's United and corporations bought politicians. The politicians back then were the rich. Who could buy them? They never thought about that...why would they?...

        Ignorance is bliss only for the ignorant. The rest of us must suffer the consequences. -7.38; -3.44

        by paradise50 on Sat Oct 19, 2013 at 11:29:29 AM PDT

        [ Parent ]

        •  No, they had experience with tearing the country (0+ / 0-)

          apart under the Articles of Confederation, and even from the Tories among the colonists during the Revolution. They put a lot of effort into designing a system of checks and balances among the branches of government, but fell into wishful thinking on the question of political parties, which they simply hoped would never arise. There is, of course, no way for the Constitution to regulate the behavior and opinions of the voting public.

          Ceterem censeo, gerrymandra delenda est

          by Mokurai on Sat Oct 19, 2013 at 02:35:51 PM PDT

          [ Parent ]

  •  mistakes (8+ / 0-)

    When party lines are minimal--compromise is possible--as a wealthy growing country, this was usually the case.  Of course, when parties became distinct, we had a civil war.  Our system is flawed, parliamentary systems are less endangered--and thus, very few countries have copied our system.  MacArthur chose the UK for his Japan template.  Also, we no longer need federalism--communication and travel have made this an anachronism and corporations play one state against another for corporate welfare.
    The constitution is not the bible (which also isn't infallible) --and we need a new one.  This won't happen peacefully--as history has shown, no system lasts forever--and leaders don't give up on a system they have mastered.

    Under capitalism, man exploits man. Under communism, it's just the opposite. John Kenneth Galbraith .

    by melvynny on Sat Oct 19, 2013 at 08:50:06 AM PDT

  •  Most of what you are talking about (3+ / 0-)
    Recommended by:
    paradise50, VClib, Justanothernyer

    would require amending the Constitution.  The SCOTUS can't strike down something put in place by the Constitution because there are some problems.  

    If there are others who believe the way you do, the solution is to elect them to federal and state governments.  The Constitution -- correctly, in my view -- makes it very difficult, but not impossible, to amend the Constitution.  Personally, I think that there would be problems with amending the Constitution in a way to bring about the results you want.  For example, I've seen several proposed amendments that supposedly would "fix" the Citizens United decision, but they often would serve to gut the First Amendment in a way that, in my view, would be horrible for this country.  

    The way our country is set up, it's all about winning elections.  For example, the reason that people here don't like the way districts are drawn now is because, in 2010, the Republicans won a lot of state elections in the year of a census.  Republicans specifically focused on those state elections; Democrats did not.  As a result, we had Republicans controlling a lot of state governments when district lines were drawn.  The next opportunity to redraw Congressional districts comes after he 2010 census, so if Democrats do not like the way districts are drawn, then the solution is to win state elections so as to control the drawing of those lines after the 2010 census.  

    •  There's a way around it to a degree. (1+ / 0-)
      Recommended by:
      paradise50

      Article the First was one of the original twelve amendments to the Constitution. Ten became the Bill of Rights, and one ended up being the 27th Amendment (in 1992).

      Connecticut recently found documents indicating that they did ratify it in 1789, which would have crossed the 3/4 threshold necessary.

      The amendment capped congressional districts at 1 per 50000 people. The House should be 6200 members right now, which fixes both the electoral college and gerrymandering problems at the next election.

      The only step missing is for the Archivist of the United States to confirm its passage. The Supreme Court declined to hear a case on the issue just recently.

  •  ..."We the People"... (2+ / 0-)
    Recommended by:
    Tim DeLaney, a2nite

    ...at that time literally meant white men who owned land and had a minimum of 5000 pounds of wealth.

    I don't know how much one 1776 UK pound was worth in 2013 US dollars. But a calculating program tells me $5000 1776 dollars would be worth $135,135.14 dollars today (which kinda makes little sense to me because were there US dollars in 1776?)

    But you get my point, "We the People" were actually a small subset of rich white landowners...

    Ignorance is bliss only for the ignorant. The rest of us must suffer the consequences. -7.38; -3.44

    by paradise50 on Sat Oct 19, 2013 at 09:12:01 AM PDT

    •  But things have changed since 1789, (2+ / 0-)
      Recommended by:
      blueoasis, paradise50

      And the function of the courts is to recognize that change. This is why the judiciary is so important.

      ... but He loves you! -- George Carlin -- (-7.25, -6.21)

      by Tim DeLaney on Sat Oct 19, 2013 at 09:16:05 AM PDT

      [ Parent ]

      •  those things have changed very little ... (2+ / 0-)
        Recommended by:
        Tim DeLaney, paradise50

        ... would a lot of people say, reading this comment. What changed is the technology and scientific advancements, which haven't done much to change the "small subset of rich white (land)owners" ship distribution of wealth at all, but rather amplified it.  

        To get a new constitution, I guess you need to crash the old one first, as the means given to change the existing one are not there.

        So tired...

      •  Just reminding you how the Germans got (2+ / 0-)
        Recommended by:
        Tim DeLaney, paradise50

        their "better constitution" way back in 1948 ... it's kind of disheartening to think about that, but telling.

      •  ...I know, but we're talking about what... (0+ / 0-)

        ...the "framers" had in mind. And the truth is they did NOT want the regular rabble involved in voting and political power. The framers also had it set up so Senators were assigned by the powers that be in each state...not even voted into office by the elite, rich white men. They didn't originally want that level of control...by rich white men...

        Ignorance is bliss only for the ignorant. The rest of us must suffer the consequences. -7.38; -3.44

        by paradise50 on Sat Oct 19, 2013 at 10:03:01 AM PDT

        [ Parent ]

    •  ...Ha...found it... (2+ / 0-)
      Recommended by:
      a2nite, muddy boots

      One 1776 UK pound was worth $2870.02 2013 US dollars.

      So the minimum wealth a white man (remember no women could vote...no minorities could vote) who owned land had to have to be allowed to vote then was $14,350,100 in 2013 US dollars.

      You had to be a multi-millionaire rich white man to be part of "We the People" in 1776...

      Ignorance is bliss only for the ignorant. The rest of us must suffer the consequences. -7.38; -3.44

      by paradise50 on Sat Oct 19, 2013 at 09:16:49 AM PDT

      [ Parent ]

    •  The States Determined the Qualifications (5+ / 0-)

      Qualifications for the franchise were determined by each state, and so varied by the state, as authorized in the U.S. Constitution.

      As an example, South Carolina did not have a requirement of owning land or having a specific minimum level of wealth.

      Enlightened.

      However, South Carolina did require that to be able to vote, a white male needed to own at least 5 slaves.  To be elected to the South Carolina legislature, a candidate needed to own at least 50 slaves.

      Not so enlightened.

      •  ...so South Carolina was different... (0+ / 0-)

        ...just had to be wealthy enough to have slaves. I wonder how many non-land owners had slaves or the need for slaves. I suppose if you didn't own land you might have slaves in your home. But five slaves minimum? Hummm, probably had a mansion then to need a minimum of 5 house slaves.

        And what non-land owner needed 50 slaves? I suppose you could have some large business where you needed 50 slaves (vs. employees) to run it.

        South Carolina, though technically a bit different, still required you to be white, male and wealthy to be able to be part of "We the People"...

        Ignorance is bliss only for the ignorant. The rest of us must suffer the consequences. -7.38; -3.44

        by paradise50 on Sat Oct 19, 2013 at 10:14:40 AM PDT

        [ Parent ]

  •  We the People is an ideal. We the Voters is real. (2+ / 0-)
    Recommended by:
    paradise50, Tim DeLaney

    The problem is "We the People" have no say, it is "We the Voters" that get the job done and voter turnout is in the toilet, and the job isn't getting done. All those rights to free speech are great, but talk is cheap. We need people actually doing their job - voting.

    In some countries it is illegal to not vote. That has merit. It is illegal to ignore jury duty, so why can't we do more to force people to step up and act like citizens at the voting booth.

    I don't need to explain the million ways this could be done. There is so much low hanging fruit like vote on weekends, statutory days off etc etc.

    Get people to the voting booth an "We" will have a lot more influence.

  •  You've Described a Distinctly Inferior Form of (3+ / 0-)
    Recommended by:
    paradise50, Tim DeLaney, Musial

    government.

    The parliamentary systems are more responsive to the people; what you're saying is that we must strive extraordinarily to overcome our own system's natural resistance to the people.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Sat Oct 19, 2013 at 10:19:07 AM PDT

  •  The (usually fatal) problem with it (2+ / 0-)
    Recommended by:
    Tim DeLaney, paradise50

    as pointed out by the recently deceased Juan Linz,
    Presidential systems, with their separate elections of the executive and legislative branches, are inherently unstable. The 2 branches always come into serious conflict eventually and destroy the whole system. The only  example to the contrary so far is, well, us.

    http://nymag.com/...

    •  But what can we do? (1+ / 0-)
      Recommended by:
      paradise50

      Short of drawing up a brand new Constitution?

      ... but He loves you! -- George Carlin -- (-7.25, -6.21)

      by Tim DeLaney on Sat Oct 19, 2013 at 11:13:41 AM PDT

      [ Parent ]

      •  Frank Rich also has a piece in NY Mag this week (2+ / 0-)
        Recommended by:
        paradise50, Theodore J Pickle

        Very short on fixes. He thinks we'll be stuck with the New Confederacy for years, and it will do serious damage to our standing in the world as well as our own people.
        Many of the suggestions in the comments here are sound, but even 'minor' tinkering with the Constitution wont go anywhere. Tho I expect the Yahooville contingent will be bleating about repealing direct election of Senators on the campaign trail for awhile.

    •  Parliamentary systems are inherently unstable (1+ / 0-)
      Recommended by:
      paradise50

      because every shift in voting patterns, sometimes single by-elections to replace members who die or drop out, requires a new government. In countries with proportional voting, that means a new round of intrigue between parties to see who can get an unstable majority coalition together. Sometimes there is no Administration for weeks or months when such negotiations fail. Afterwards any coalition member can take down the government at a moment's notice by taking the other side in a Vote of No Confidence.

      Also, in Parliaments the Administration is selected by the party in power, with no popular vote. Top Party officials routinely run in gerrymandered districts. In UK parlance, they are called "rotten boroughs". It is said that UK Conservatives would vote for a block of wood as their borough candidate, and many in the UK claim to have done so.

      Ceterem censeo, gerrymandra delenda est

      by Mokurai on Sat Oct 19, 2013 at 03:12:47 PM PDT

      [ Parent ]

      •  Tx for the view from the other side of the fence (1+ / 0-)
        Recommended by:
        paradise50

        The ancient Athenians had direct democracy, but that was wildly unstable and subject to unpredictable mood swings.
        If we ditch the whole democracy thing, I volunteer to be Tyrant for Life.

        •  My mother taught High School Civics (0+ / 0-)

          If you simply teach how government is supposed to work, this is one of the deadly dullest subjects in school. You have to get to how it really works, or fails to, and what you, as a citizen, can do about it. Starting with having some idea of what is going on, and what you would prefer to happen. Or even further back, how it failed to work through all of human history, with the rarest of exceptions.

          She would start out with the proposition that everybody considers aristocracy to be the finest possible form of government, as long as you and your friends get to be the aristocrats.

          Tyrannies are no good to anyone, because the single tyrant has to regard everybody, including his allies and even his palace guard, to be mortal enemies.

          Ceterem censeo, gerrymandra delenda est

          by Mokurai on Mon Oct 21, 2013 at 03:36:45 PM PDT

          [ Parent ]

  •  Dred Scott exposed the fundamental flaw, (3+ / 0-)
    Recommended by:
    paradise50, Tim DeLaney, Nisi Prius

    that the Supreme Court can take a case between private parties and transform the basics of the Constitution with it. Britain's parliamentary sovereignty locates the constitution within parliamentary control. In our system the Court becomes the de facto sovereign. Read Lincoln's 1857 response to Dred Scott, listing five criteria for determining when a Supreme Court decision has no precedential impact over the government. Such decisions that would fail Lincoln's criteria have been frequent. Invading Congressional power the Court becomes a counter-legislature, not even relying on a genuine case or controversy, deciding not from a developed record but from broccoli analogies, issuing advisory opinions that are honored as precedent.

    Brown v. Board simply corrected the overreach of Plessy saving the US from international embarrassment.  Plessy  was never rejected politically as segregation is accomplished by private schools.  But since the civil war, the Court has been beyond checks and balances,  striking down progressive legislation, as a rule. The dream of an uncorrupted court was lost after Watergate with Buckley. The plutocratic majority, over the long run, is self-packing, altering the political system to perpetuate itself. Citizens United was a direct challenge to Congress's power to elminate corruption and maintain accountability.  

    A formula, based on Lincoln's criteria, could be established in legislation for authorizing a Congressional remonstrance to the Court, challenging any decision that invades Congressional powers improperly. If the Court were to reject the remonstrance, a referendum could be put to the voters. Justices determined to have violated separation of powers could be removed by the President for bad behavior.

    The Republican Party won the 1860 election on a promise to disobey the Supreme Court, and we went immediately into a civil war. The structure for avoiding Dred Scott types of judicial overreach was addressed by Progressives and TR but left unaccomplished. Judicial supremacists who fear a slippery slope ingnore the express Constitutional controls as well as the comparative stability of parliamentary systems.

  •  How did Arizona elect 5 Dems vs 4 Reps in 2012? (2+ / 0-)
    Recommended by:
    Tim DeLaney, paradise50

    After 2000, the voters approved a state proposition that authorizes an independent bipartisan commission to draw the redistricting lines based on a set of principles.  The Constitution and federal Voting Rights law has to be observed, communities of interest have to be respected, AND they have to be competitive.

    There are two Dems, two Reps, and 1 independent on the commission.  In the last cycle, the map they drew was opposed by the two Reps, so the Governor fired the 1 independent to change the balance of power on the commission by adding a stealth Republican.  The State Supreme Court overruled and reinstated the Independent.

    The map was upheld and the voters elected 5 Democrats and 4 Republicans to hold seats as representatives from the state of Arizona.

    There is no existence without doubt.

    by Mark Lippman on Sat Oct 19, 2013 at 02:39:39 PM PDT

  •  Proportional representation (3+ / 0-)

    Gerrymandering is just an extreme form of what happens when single member district lines are drawn. Any sent of boundaries, even those drawn up by the most impartial and  politically neutral body imaginable, will leave substantial number of electors voting for someone other than the winner.

    A proportional system of election would either eliminate districts entirely or make them larger to elect multiple members of the legislature.

    I do not wish to get the discussion in this thread bogged down in disputes about the merits or demerits of particular proportional and semi proportional electoral systems. Many exist or have been proposed. No doubt Americans could devise a new scheme if they wished.

    It has been demonstrated mathematically that no electoral system can include all of a list of characteristics, which might be thought desirable. One of the flaws in the single member, relative majority system, used in almost all U.S. elections, is the importance of drawing district lines. The power to set the district boundaries will usually determine the partisan result of an election, in most of the districts.

    There is no man alive who is sufficiently good to rule the life of the man next door to him. Sir Rhys Hopkin Morris, M.P.

    by Gary J on Sat Oct 19, 2013 at 03:02:47 PM PDT

    •  I would strongly support (2+ / 0-)
      Recommended by:
      Gary J, paradise50

      a proportional representational method. There are several possibilities, but alas! How could we get legislators to support a constitutional amendment?

      ... but He loves you! -- George Carlin -- (-7.25, -6.21)

      by Tim DeLaney on Sat Oct 19, 2013 at 03:30:52 PM PDT

      [ Parent ]

      •  No amendment necessary (1+ / 0-)
        Recommended by:
        paradise50

        If Congress altered the law, to permit multi member districts, a state could adopt proportional representation for its House delegation.

        Making PR mandatory might well be held to be beyond the Congressional power about elections, so a constitutional amendment would be necessary.

        In any event, European experience is that politicians do not usually adopt proportional systems unless they are uncertain following a war or a change of regime. Most European democracies adopted PR (if they did) after the First World War, the Second World War or the fall of communism. Even the UK almost passed PR in 1918 (it was the one recommendation of the Speaker's Conference on electoral reform which failed to be enacted as the two Houses failed to agree which reform to adopt and the default position was to keep first past the post elections).

        It is always difficult to persuade professional politicians that the electoral system that elected them is not perfect.

        There is no man alive who is sufficiently good to rule the life of the man next door to him. Sir Rhys Hopkin Morris, M.P.

        by Gary J on Sat Oct 19, 2013 at 04:40:18 PM PDT

        [ Parent ]

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site