Thursday, October 31, 2019

Getting Rid of Gerrymandering

Earlier this year the U.S. Supreme Court decided that political gerrymandering claims were “nonjusticiable, saying that there was no ‘constitutional directive’ nor any ‘legal standards to guide’ the Court.  Quoting an earlier plurality opinion on the issue, the Court said that ‘neither § 2 nor § 4 of Article I [of the U.S. Constitution] “provides a judicially enforceable limit on the political considerations that the States and Congress may take into account when districting.”’” [1] One might think that Equal Protection would have been a good place to start, but here we are with henhouses left to the care of the foxes. 

It could be suggested that an obvious remedy might be to make gerrymandering impossible, by requiring that members of the U.S. House of Representatives be elected on an at-large basis in every state. But there is a problem. While in “our early history, state congressional delegations were generally elected at-large instead of by districts,” in 1842 “Congress required single-member districting  and later” in 1872, “added a provision for equally populated districts ….” So at-large voting, except in states which have only one representative, would be contrary to law. 

Now there actually is a good reason for prohibiting at-large voting for members of the House of Representatives. While gerrymandering is an effective method for marginalizing minorities, or even majorities, at-large voting would be a cure worse than the disease. If every voter was permitted to vote on his state’s entire delegation, minorities could be shut out completely, even if that minority constituted as much as 49% of the vote. 

But there is another way to rid ourselves of districts, and, hence, gerrymandering, without such a baneful result. Instead of having voters cast as many votes as there are House seats from their states, require that they select only one candidate from the list. Those candidates receiving the most votes would be seated. If two or more candidates qualify for the bottom position, there would be a run-off. If the result is that there are not enough candidates receiving votes to fill up the delegation, a second election can be held to accomplish that end. Critical to this method, which I will dub the single-vote-at-large method,” would be the abolition of primaries, which would have the effect of eliminating candidates within political parties who might get broader statewide support in a general election. 

It really is a peculiar prejudice that we have that tells us that political interests align with territory. A farmer, as a farmer, in the southern part of a state is more likely to have similar interests with a farmer in the northern part than with a manufacturer living next to him. Members of racial minorities will have similar interests regardless of their geographic location. 

And let us not be over-awed with any objection that selecting one candidate from such a large slate would be too confusing for voters. All this method requires of voters is that they pick the one candidate most appealing to them. While it is true that in a large state, like California, there will likely be an insurmountable obstacle to becoming adequately informed about the positions of every candidate, it is for the candidates to make themselves known; and the internet has made this possible without too much of an investment. Besides, no one goes to the polls with perfect knowledge, and with this plan the odds will increase that a voter will find a candidate suitable for him proportionately to the size of his state’s delegation. 

This plan also has the benefit of being less complicated than other extant suggestions like cumulative voting or ranked-choice voting. With cumulative voting, electors have a certain number of votes which they can spread around to different candidates or give to one of them. To the extent this protects stockholder minorities in corporations where this method is often used, it would require a prodigious amount of organization to work as it should in a political election of any great territorial extent. Ranked-choice voting is in vogue nowadays, but it is not at all clear that the average voter has a good idea of how he would rank candidates after he selects the one he prefers. As he goes down the list, there will be a temptation to be arbitrary, which will not truly yield the information sought for. 

This single-vote-at-large method appears to your humble servant to be not only the simplest answer to the gerrymandering problem, but also the method most likely to yield a result that comports with the actual interests within a state. We need only rid ourselves of the superstition that geography has a predominant role to play in reflecting the actual interests existing in society.

Monday, October 21, 2019

The Constitutional Right to Welfare

In 1969, the United States Supreme Court was confronted with the question of “whether a State that terminates public assistance payments to a particular recipient without affording him the opportunity for an evidentiary hearing prior to termination denies the recipient procedural due process in violation of the Due Process Clause of the Fourteenth Amendment.” [1] The case was Goldberg v. Kelly, and the Court answered the question in the affirmative.

The obvious concern was that a welfare recipient might be deprived of necessary aid as his challenge to the state action remained pending. As the trial court that first heard the case put it, “‘By hypothesis, a welfare recipient is destitute, without funds or assets.... Suffice it to say that to cut off a welfare recipient in the face of…“brutal need” without a prior hearing of some sort is unconscionable, unless overwhelming considerations justify it.’” The Court “rejected the argument that the need to protect the public’s tax revenues supplied the requisite ‘overwhelming consideration.’”

The Court also rejected the notion that the constitutional challenge could “be answered by an argument that public assistance benefits are ‘a “privilege” and not a “right.”’” In a footnote, the Court made this point:

“It may be realistic today to regard welfare entitlements as more like ‘property’ than a ‘gratuity.’ Much of the existing wealth in this country takes the form of rights that do not fall within traditional common-law concepts of property. It has been aptly noted that 

“‘[s]ociety today is built around entitlement. The automobile dealer has his franchise, the doctor and lawyer their professional licenses, the worker his union membership, contract, and pension rights, the executive his contract and stock options; all are devices to aid security and independence. Many of the most important of these entitlements now flow from government: subsidies to farmers and businessmen, routes for airlines and channels for television stations; long term contracts for defense, space, and education; social security pensions for individuals. Such sources of security, whether private or public, are no longer regarded as luxuries or gratuities; to the recipients they are essentials, fully deserved, and in no sense a form of charity. It is only the poor whose entitlements, although recognized by public policy, have not been effectively enforced.’”

The Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law….,” [2] and the Court held that welfare recipients have a right to due process before having their benefits taken away. The Court was thus recognizing that welfare recipients had a property interest in their benefits.

The logic was impeccable, though one can easily imagine the outrage generated by such a holding. Welfare is widely considered a kind of government charity that one receives as the donee of government beneficence.

But the fact is, welfare is a right created by statute. The law says that people who live below a certain level of means are entitled to financial assistance, and if one is such a person he is entitled to the benefit; that is to say, he is entitled to it as a matter of law. He really is entitled to the benefit, and, therefore, has a property interest in it. 

Devotees of Social Darwinism will be quick to say that this can be easily dispensed with by simply getting rid of any statute or other positive law that provides for welfare benefits. And as far as the reasoning of the Goldberg case goes, that point seems valid. But the issue really goes deeper than that. 

The Fourteenth Amendment references “life, liberty, [and] property,” and those words have historical legal meaning. Sir William Blackstone, in his Commentaries on the Laws of England used similar language in describing the rights of every Englishman. 

“The rights themselves thus defined by these several statutes, consist in a number of private immunities; which will appear, from what has been premised, to be indeed no other, than either that residuum [remainder] of natural liberty, which is not required by laws of society to be sacrificed to public convenience; or else those civil privileges, which society has engaged to provide, in lieu of the natural liberties so given up by individuals. These therefore were formerly, either by inheritance or purchase, the rights of all mankind; but, in most other countries of the world being now more or less debased and destroyed, they at present may be said to remain, in a peculiar and emphatic manner, the rights of the people of England. And these may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty; and the right of private property: Because as there is no other known method of compulsion, or of abridging man’s natural free will, but by an infringement or diminution of one or other of these important rights, the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most extensive sense.” [3]
It is clear that, for Blackstone, these rights were not granted by the sovereign, but “the rights of all mankind….” And we cannot easily dismiss this as no more than the opinion of Blackstone, because the United States inherited the laws of England, Blackstone being a chief expositor of same, and the words of our Constitution refer back to them. Thus, we must understand the laws of England at the time of our nation’s founding in order to properly understand our own law.

Now the right to life is included in the right of personal security, as Blackstone explains:

“The right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.” 

Modern prejudices may incline one to think that society fulfills its duty in this regard by refraining from positive actions adverse to these interests, and enacting laws to protect these rights against infringement. But it is not so. Blackstone goes on to say,

“The law not only regards life and member, and protects every man in the enjoyment of them, but also furnishes him with everything necessary for their support. For there is no man so indigent or wretched, but he may demand a supply sufficient for all the necessities of life, from the more opulent part of the community, by means of several statutes enacted for the relief of the poor, of which in their proper places.” 

The right to life, then, requires positive action on the part of society to supply to the indigent what is necessary to maintain life. Blackstone wrote in the 18th century, and some will be surprised that he took such a modern view of the matter. But the truth is, it is the view that the poor should be left to the vicissitudes of voluntary charity that is of more recent vintage. 

The Constitution requires that no state deprive a person of life without due process of law. The historical meaning of that requirement includes the obligation to provide the means of life to the indigent. Therefore, every state has the obligation to provide for the indigent within its borders. And since the federal government has the power to create money, it should fulfill the subsidiary role of funding.

Wednesday, October 9, 2019

Twenty-Fifth Amendment Time

According to the 25th Amendment to the Constitution, whenever the Vice President and a majority of the cabinet transmits “to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President” immediately assumes “the powers and duties of the office as Acting President.” [1] But if the President transmits to the same officers “his written declaration that no inability exists, he” resumes his office, unless the Vice President and a majority of the cabinet transmits another written declaration of ineligibility within four days, after which Congress decides the matter. If both houses of Congress decide that the President “is unable to discharge the powers and duties of his office” by a two-thirds vote, the Vice-President continues as Acting President.

Impeachment has been the leading topic of conversation in the past few days, but there is this other way in which a president can be removed from office. Perhaps it is not often discussed, because there is little anticipation that Vice-President Pence and a majority of the cabinet officers will turn on Mr. Trump in this manner, let alone that two-thirds of the Republican Senate will agree to it. 

But the psychological condition of the president is a matter of serious concern among competent professionals. John Gartner is a psychologist and former assistant professor at Johns Hopkins University Medical School. Dr. David Reiss has been a practicing psychiatrist for more than 30 years, specializing in fitness evaluations. Dr. Steven Buser is a clinical psychiatrist practicing in Asheville, North Carolina, and a former Air Force psychiatrist. At the end of May, these three said the following in the pages of USA Today

“Many of us in the mental health community have been arguing for years that Trump should be removed because he is psychologically unfit. We posted a professional petition online stating that ‘in our professional judgment … Donald Trump manifests a serious mental illness that renders him psychologically incapable of competently discharging the duties of president of the United States.’ It garnered over 70,000 signatures and formed a professional organization, Duty To Warn, dedicated solely to this issue and has held rallies across the country.

Most recently, ‘Dangerous Case’ editor Bandy Lee and a group of colleagues issued a mental health analysis of the Mueller report in which they concluded ‘there is compelling medical evidence’ that Trump ‘lacks the capacity to serve as president.’ He manifests ‘impaired capacity to make responsible decisions free of impulsivity,’ as well as an ‘inability to consider consequences before taking action, detachment from reality, paranoid reactions, creation of dangerous conditions, and cognitive and memory difficulties.’” [2]

Until now, there has been little reason to hope that the president’s Republican cabinet would invoke the 25th Amendment. But circumstances have changed. 

“In a major shift in United States military policy in Syria, the White House said on Sunday that President Trump had given his endorsement for a Turkish military operation that would sweep away American-backed Kurdish forces near the border in Syria.

“Turkey considers the Kurdish forces to be a terrorist insurgency, and has long sought to end American support for the group. But the Kurdish fighters, which are part of the Syrian Democratic Forces, or S.D.F., have been the United States’ most reliable partner in fighting the Islamic State in a strategic corner of northern Syria.” [3]
What Mr. Trump has done is endorse a military attack against our allies. That is simply unconscionable, and is a clear manifestation of mental irregularity. 

Sure enough, “Turkey launched airstrikes and fired artillery across its border into northeastern Syria on Wednesday to open a military operation aimed at flushing out” the “American-backed militia….” [4] Only the most dyed-in-the-wool partisans are capable of seeing this as anything but a disaster. Regardless of how one views American involvement in Syria, it is sheer madness to abandon and betray allies in this manner.

“President Trump faced a swift torrent of Republican criticism Monday as lawmakers rebuked his plan to withdraw troops from northeast Syria, a move Senate Majority Leader Mitch McConnell said would undermine U.S. national security and potentially bolster Islamic State terrorists.” [5] While most “Republicans have been reluctant to criticize Trump’s calls for Ukraine and China to investigate former vice president Joe Biden, a political opponent, and his son Hunter — acts that have become central to Democrats’ impeachment investigation,” his agreement to move U.S. troops out of the way so that Turkey can attack America’s Kurdish allies has “opened him up to direct criticism from some of the lawmakers who have tried to defend him in the impeachment inquiry.” 

One hopes that this latest incident will convince Republican lawmakers and cabinet officers that President Trump lacks the mental stability to hold his office. Patriotism demands that they wake up to this sad fact. Policy differences there will be. But everyone should agree that the President should be mentally competent.