Time To Do Away With The Electoral College.

 

It is time to do away with the Electoral College.

Our obsolete, undemocratic way of choosing the President made the events of January 6, 2021 possible. The bizarre nature of the Electoral College encouraged the President and his allies to try to manipulate the system to overturn a free and fair election in which Donald Trump lost by one of the biggest popular vote margins in history.

Alexander Hamilton in Federalist #68 explains why the Framers created the electoral college. Hamilton wrote that the electoral college would be “small number of persons, selected by their fellow-citizens from the general mass, [who] will be most likely to possess the information and discernment requisite to such complicated investigations” in selecting the most qualified person to be President.

The Framers wanted to “to afford as little opportunity as possible to tumult and disorder.” Creating “an intermediate body of electors will be much less apt to convulse the community with any extraordinary or violent movements.” Moreover, they dictated that the electors would meet in their respective states because “this detached and divided situation will expose them much less to heats and ferments” from excited partisans.

The Electoral College, according to Hamilton, deliberately placed “every practicable obstacle” to “cabal, intrigue, and corruption.”

The Framers could not have been more wrong. The electoral college allowed Donald Trump and his allies to advance absurd legal theories about the election. These ideas – that the election was stolen, that state legislatures could override the vote of the people, and that the Vice President could decide which electoral votes to count - allowed Trump to rile up the crowd on January 6 and caused the majority of Republicans in the House to vote against certifying President Biden’s election.

These ideas are laughable and profoundly undemocratic. If the Vice President could decide which votes to count, then we would have a dictatorship, not a democratic republic. And if members of Congress could decide that the states did not follow their own laws, we would no longer have a federal republic where states are primarily responsible for their elections. Indeed, the need for elections would vanish. Why bother when either Congress, or state legislatures, or the Vice President could decide who gets to be President?

The Electoral College has failed to serve its purposes. It no longer filters the choice of a President through a small body of wise, disinterested persons. By the 1830’s all of the states gave their electors to the winner of the popular vote.  It did not stem the “extraordinary or violent movements” of January 6. The bi-partisan January 6 commission reveals daily the “cabal, intrigue, and corruption” Trump and his allies engaged in. The attack on the Capitol brought the “tumult and disorder” and the “heat and ferments” the framers feared.

But most egregious of all, the Framers promised us that the electoral college would provide a “moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications…. there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue.” Instead, it gave us the 2016 election of Donald Trump, a corrupt, vulgar authoritarian, a man manifestly unfit for public office.

Let’s get rid of the electoral college and democratize Presidential elections. Over time, we have replaced some of the constitution’s original undemocratic features with more modern, democratic ones. Thus, the 17^th amendment mandates the direct election of Senators, the 22^nd Amendment term limited the President, the 14^th, 15^th, 19^th, and 26^th Amendments enlarged the franchise, and the 24^th outlawed poll taxes.

If January 6^th taught us anything, it is that unscrupulous actors will try to manipulate undemocratic structures. The electoral college is obsolete, useless, and dangerous. It’s time to remove this constitutional appendix. 

RBG"s Only Abortion Case was for a Roman Catholic woman who DIDN"T want an abortion

 Before she became the notorious RBG, Ruth Bader Ginsburg handled women's rights case. The only abortion case she ever handled involved a pregnant member of the military. 

Susan Struck was an Air Force captain when she became pregnant in 1970. Her commanding officer gave her two choices: abortion or resignation. Instead of choosing, Struck sued. Justice Ginsburg, working for the ACLU, represented Struck, arguing that the regulation banning pregnant women from service was sex discrimination, and that Struck should have the right to choose whether or not she wanted to have a child; a military directive to the contrary violated Struck’s rights.

https://www.findlaw.com/legalblogs/supreme-court/how-justice-ginsburg-struck-out-in-the-pro-choice-movement/

Before the case got the Supreme Court, however, the Air Force changed its position and the case was dismissed as moot. 

Ginsburgh thought it unfortunate that SCOTUS did not hear this case: 

“I wish that would have been the first case. I think the court would have better understood that this was a question about a woman’s choice,” she said. 

https://www.usatoday.com/story/news/factcheck/2020/09/29/fact-check-ruth-bader-ginsburg-susan-struck-air-force-case/3555141001/

 So RBG was not pro-abortion. She was truly pro-choice.

"The moon passes through different phases--shows us a different face every night--but it's always the same moon" : Bob Dylan, Leonard Cohen, Samuel Alito, Roe v. Wade, and Neil Diamond

Ok, bear with me. It will take a little time to get to the point and bring the title characters together. Justice Alito's leaked draft opinion got me thinking about originalism which got me thinking about hermeneutics which got me thinking about Leonard Cohen and Bob Dylan and Neil Diamond. (It didn't hurt that I own the Essential Leonard Cohen and 10 New Songs.) No matter when he recorded,  Leonard Cohen sounded a lot like Leonard Cohen 50 years ago. He always had a tight lyrical structure, he wrote about love and sex and loss ,and his vocal range was always about 3 notes wide. Some might say that if you have heard one Cohen song, you have heard them all. But that is not true. Cohen used the same themes but expanded and refined them in new circumstances.

 Pico Iyer captured this sense of Cohen on the liner notes to The Essential Leonard Cohen

"[W]ith Cohen, one feels that he knew who he was and where he was going from the beginning, and only digs deeper, deeper.... The moon passes through different phases--shows us a different face every night--but it's always the same moon."

Contrast that with Dylan who changes structure, subject, and musical style at the drop of his (sometimes literal) hat. Dylan puts on these changes like disguises. He mixes together all his influences, current and past, to come up with the "new and improved" Dylan. He grows organically, changing the words and music to fit his mood or the country's mood or just because he's tired of being this year's Bob Dylan. And he doesn't mind making things up as he goes along. He is notorious for speaking jibberish during interviews. New moon, different solar systems. 

Neil Diamond. This will be quick. Same song, same words, same inflection, same meaning now and forever. Same moon, same aspects (preserved forever in crystal clear audio and yours for the low price of ...)

Here's the legal connection. Cohen is like the second John Harlan (and Anthony Kennedy): the Constitution's fundamental principles never change but their meaning cannot be plumbed once and for all. Each new situation will show a different aspect of the fundamental principles. (e.g. ,We can only say what Liberty means in the context of each case as we explore its deeper and deeper meanings. And meaning takes into account our national experience.) Same moon, different faces.

Dylan is more like William Brennan: the Constitution is an organic document that changes in each era. (i.e., we have to adapt the Constitution to the modern world)

Alito's leaked draft opinion makes this point: the Constitution never changes, period. (e.g., Unless the framers envisioned allowing abortions, the constitution has nothing to say.) That doesn't sound like Dylan or Cohen: It sounds more like Neil Diamond - same song, same words, same inflection, same meaning now and forever. (preserved forever in crystal clear audio and yours for the low price of ...) 

But as Leonard Cohen said in Alexandra Leaving, "Do not stoop to strategies like this... Do not choose a coward's explanation that hides behind the cause and the effect." We don't need Neil Diamonds on the Supreme Court singing "Sweet Caroline" for the next 30, 40, 50 years and we don't need Bob Dylans  making up the lyrics to "Maggie's Farm" on the fly. We need Leonard Cohens, who look unflinchingly and repeatedly at the same subject, exploring its different aspects, who bring their and our nation's experience to bear on the legal issues confronting the court and never sparing us from the necessary truths. We need Justices who, like Leonard Cohen see that "The moon passes through different phases--shows us a different face every night--but it's always the same moon."

 

Justice Alito's leaked draft opinion on Roe v Wade is the immediate impetus to fire up my old blog, Rational Basis. I did a Zoom discussion of my initial thoughts on the draft opinion. Here is a link to the audio of that discussion. I will be adding more thoughts on this opinion and what it means in the coming days (or hours!)

Rational Basis went by the wayside when I got enamored with Facebook and other things (like running a law school). In any event, I need something to do now that I am retired and the discussion about the Allito opinion reminded me how much I love talking about the law but also that I may still have something to offer people.

I retired from law school teaching, a job I held since 1983, with pride but also trepidation. I am proud of what I have accomplished as a teacher, scholar, Dean, and public servant. During that time, I had the privilege of meeting and teaching thousands of students who have gone to do great things in Arkansas and beyond. I also retired from the Clinton School of Public Service where I was one of the Inaugural Professors and had the privilege of teaching the very first class on the very first day. 

The blog will be a mix of politics, law, music, food, and culture. I can say things that I couldn't say before because I am no longer associated with the UALR Bowen School of Law or the Clinton School. I also want to be able to say things with a bit more depth and nuance than I can in a Twitter or Facebook post.

Arkansas Fetal Heartbeat Law

Arkansas is considering passing a law that would ban abortions at any time after a fetal heartbeat is detected. Unquestionably, this would be unconstitutional under Planned Parenthood v Casey which says that anything that has the purpose or effect of imposing an "undue burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability," is unconstitutional.

Viability is defined as the age at which the fetus is capable of life outside the womb with or without artificial support.

A few states have tried to pass similar bills. The strategy seems to be to pass a bill, have it challenged in court, and then launch an all out assault on Roe v Wade.

Supporters of this bill must justify the expenditure of considerable state funds defending it when a favorable outcome is uncertain at best. Only the United States Supreme Court can undo Roe so that, unless the case gets to the Supreme Court AND it turns out in the state's favor, passing the bill would be quixotic.

I don't think that the current make up of the Supreme Court would uphold this kind of law if it meant undoing Roe. There are four solid liberal, pro-roe votes (Kagan, Ginsburg, Sotomayor, Breyer), three solid conservative, anti-roe votes (Scalia, Alito, Thomas) and two moderate votes (Kennedy, Roberts.) Even if we assume that Roberts would vote with the anti-Roe side, Kennedy is unlikely to do so. He co-authored the Casey opinion that upheld the "central tenets" of Roe: that the constitution protected a women's right to choose and that the government could not place a substantial obstacle in her path.So that leaves a 5-4 majority against these kinds of laws.

Brainwashed and Dry Cleaned.

The think tank posts this link to an MSNBC interview with the shouter who disrupted Arlen Specter's Lebanon town hall yesterday.

What's sad is to see a real live example of brainwashing. Poor Mr. Miller was simply repeating what he heard hundreds of times from the right wing media. I feel sorry for him because he is the kind of person for whom government needs to work but he is being played by the faux populists who have created the mishmash he and others repeat. As a character said in the original version of the Manchurian Candidate: "His brain has not only been washed...it has been dry cleaned."

US Attorney Purge Documents

The Arkansas Times blog notes that there's some more smoke on the 2007 US Attorneys purge that involved Arkansas US Atty Bud Cummins. It sure seems like there was a fire about this in Karl Rove's office in the White House.

The "Death" of Health Care Reform

I have been thinking a lot about the mobs who are shouting down any discussion of health care. But first, here's a source of facts for the reality based community, that dwindling band of folks who like to make decisions based on quaint things like facts and evidence and, you know, reality. James Fallows thinks that journalists should report the truth and not simply relay lies, half-truths and misinformation. What a concept! 

 Blake Rutherford links to Mark Halperin's Time posting: Why Everything About the Health Care Mobs is a National Disgrace. 

  Listen to David Brooks - David Brooks! - say that Rush Limbaugh's health care rhetoric is "insane." Here is the unpleasant truth that the health care shouters will not accept: refusing to reform health care is a death sentence for thousands of Americans. 

As Southern Beale says to Sarah Palin: "You have no idea what it’s like to be called into a sterile conference room with a hospital administrator you’ve never met before and be told that your mother’s insurance policy will only pay for 30 days in ICU. You can't imagine what it's like to be advised that you need to “make some decisions,” like whether your mother should be released “HTD” which is hospital parlance for “home to die,” or if you want to pay out of pocket to keep her in the ICU another week. And when you ask how much that would cost you are given a number so impossibly large that you realize there really are no decisions to make. The decision has been made for you. "Living will" or no, it doesn't matter. The bank account and the insurance policy have trumped any legal document. If this isn’t a “death panel” I don’t know what is." 

The truth is that the unthinking anger, the refusal to listen to the facts, and the willingness to be misled by corporate-managed campaigns of disinformation are far greater dangers to our future than anything that health care reform will bring. Death of democracy, anyone?

A Change -in Legal Education - is Gonna Come (with apologies to Sam Cook)

I attended the ABA Workshop for Law School Dean on being a law school dean in tough times. It had the expected advice about how to weather the current economic storms. But there was also a not so veiled undercurrent: the old strategies may not work this time because legal education is undergoing a sea change.

I am in that camp. Economic and educational forces are combining in ways that will create a different world in which law schools will operate and lawyers will practice.

What are the economic forces?

• Law firms are shedding jobs that are not likely to be re-created when the recession ends.
• The remaining jobs will not pay so much as before.
  
• Students will be reluctant to take on large debt unless there are jobs waiting for them.
• Law Firms will demand job-ready applicants

What are the educational forces?

• Calls for fundamental legal education reform are gaining momentum
• The ABA is moving toward outcome-based accreditation standards
• Students are demanding different approaches and want to see value for their tuition dollars.
  

In my view, schools that are mission driven and can measure their effectiveness will thrive. This means that life as law schools have known it for the last 20 years is over: if rankings survive, they will have take into account the new value that students will seek. And law schools will not be able to pump up tuition without regard to student debt load. And the faculty salad days may be over.

Perhaps it will create a caste system for law school but, as UMKC Dean Ellen Suni said, "So what? We've got that already." Perhaps, mission driven schools will be able to pursue their vision and prospective students will recognize our value. (BTW, the Sam Cook original may be one of the greatest R & B songs ever. IMHO).

Changing what Law Schools Practice and Law Firms Teach

Temple Law School Dean Joanne Epps has an interesting piece in the National Law Journal entitled A Tipping Point for Law Schools? Dean Epps argues that the economic crisis gives law schools and law firms an opportunity to re-think the way we educate law students. The old bargain between the profession where law schools taught "the law" and law firms taught skills has broken down.

Of course, that was only true for the largest firms. Law schools that sent their graduates into small firms, state agencies, and solo practice have always embraced a mission to teach legal theory AND to prepare their graduates to practice law. That's why my law school - UALR William H. Bowen School of Law - has required an upper level skills course since 1974. The ABA only mandated a skills requirement in 2006. The recession and the reform movement in legal education have exposed the divide between the law school "haves" and the rest of us. In truth, the "haves" are now experiencing what the rest of us have always known and are now embracing what the rest of us have always done.

In fairness, Dean Epps' school - Temple - has been at the forefront of clinical legal education. I'm not picking on her. In fact, she gets it about right: that there is no single template for legal education in the 21st Century and that the future will be marked by flexibility and collaboration. As she says:

"I [don't] expect that change will come from one law school or even a handful of law firms. Rather, I think it is imperative that a dialogue get under way that harnesses our collective experiences from across the spectrum of the industry to think strategically about the role legal education should play during the next 20 to 50 years."

Indeed.