Friday, March 29, 2013

Why Do Indiana Republicans Want to Prohibit Indiana Cities From Adopting Living Wage or Similar Employment Laws?

The Indiana General Assembly has passed a bill (Senate Bill 213) that will prevent local governments from adopting local employment ordinances that go beyond what the State of Indiana requires. So far, SB 213 has gotten a fair bit of attention due to the concern that it will invalidate county or city non-discrimination ordinances related to employment. For example, if Indianapolis has an ordinance that an employer cannot discriminate against an employee (or prospective employee) on the basis of that person’s sexual orientation or gender identity, then because SB 213 prohibits cities from enacting employment legislation, it would seem that the Indianapolis non-discrimination law would be invalid.

And I think that’s a really bad idea. Thankfully, it appears that some legislators agree. Several have been forthcoming and noted that overturning non-discrimination ordinances was not the goal of the SB 213. OK. Good to know. And several legislators have also said that if it turns out that the bill would indeed have the “unintended” consequence of overturning non-discrimination ordinances, a separate piece of correcting legislation would probably be adopted. Once gain, good to know (though “probably” isn’t all that comforting…).

So let’s put aside the question of non-discrimination ordinances and look, instead, to the real goals of the SB 213.

First, let’s review the text of the relevant section of SB 213 (the first two sections are very technical and not really important for the discussion):

Sec. 3. Unless federal or state law provides otherwise, a unit may not establish, mandate, or otherwise require an employer to provide to an employee who is employed within the jurisdiction of the unit:
        (1) a benefit;
        (2) a term of employment;
        (3) a working condition; or
        (4) an attendance or leave policy;
that exceeds the requirements of federal or state law, rules, or regulations.

(Note that a “unit” is a county, municipality, or township.)

Thus, as I read SB 213, a unit cannot require employers to provide a benefit to employees that is more than what is required by federal or state law. So, for example, Indianapolis could not require local employers to provide parking for their employees or a security guard to escort women to the cars after dark. Each of those would be a benefit that exceeds the benefits mandated by state and federal law.

SB 213 also prohibits a unit from requiring a term of employment in excess of that mandated by federal or state law. So, for example, Indianapolis couldn’t require employees who work more than 30 hours be paid overtime as if they were full time employees or prohibit employers from firing employees other than for cause. Again, each of those would be a term of employment in excess of state or federal law.

SB 213 further prohibits a unit from mandating working conditions in excess of those mandated by state or federal law. Thus, for example, Indianapolis couldn’t require outdoor workplaces to be smoke free or require working fire extinguishers or prohibit harassment on the basis of sexual orientation (oops, I know I said I was going to put that aside…). Each of those would be a working condition in excess of that mandated by state or federal law.

SB 213 also prohibits a unit from requiring an attendance or leave policy in excess of federal or state law. Thus, again by way of example, Indianapolis couldn’t require employers to give employees a 2-hour delay to get to work if the employee’s minor child attends a school that has a 2-hour snow delay or require employers to give employees leave associated with efforts to adopt a child or to vote. You know the mantra: Those requirements would be in excess of those mandated by state or federal law.

And most important, SB 213 would prevent a unit from adopting a “living wage” that requires employers to pay a minimum wage in excess of the minimum wage adopted by the state and federal governments. Wages could be identified as a benefit or a term of employment, most likely.

Now I can see where all of this makes sense to the business community. Surely a business would prefer fewer governmental restrictions on how it deals with its employees, especially when it comes to salary. And attendance. And working conditions. And so on and so forth.

But last time I checked, we’re still a country “of the people, by the people, and for the people” and not “of the business, by the business, and for the business”. Or, said differently, is the proper role of our government just to do what’s best for business or should the consideration be what is best for the people being employed by those businesses? Or maybe even a balancing act between the needs of businesses and their employees and the community at large?

Again, I understand that some may argue that local employment ordinances may convince employers to move their businesses or not to come to that locality in the first place. Maybe yes, maybe no. I can see a counter-argument that says that employers may want to bring their businesses to places where employees will want to come because of the protections and requirements afforded by law. I can even see the competition argument cutting both ways.

But here’s the real issue that I have. Why is it the business of the legislature or of legislators from Evansville or Auburn to tell Indianapolis or Bloomington what’s best for their local communities. If the voters in Indianapolis feel that an ordinance is hurting employment opportunities in Indianapolis, the voters will certainly let the City-County Council and Mayor hear about it and may vote for candidates who will change the ordinances. On the other hand, if the voters elect local representatives for the purpose of implementing local employment laws, then why shouldn’t the will of those voters be respected? If the voters in Angola or Jeffersonville don’t want to provide increased employment benefits, they don’t have to; but why should that prevent voters in West Lafayette or Sheridan from doing so?

Just think how many times you’ve heard Republicans complaining about Washington or Congress telling the states how to act; yet here, Indiana’s Republican supermajority is telling local communities how to act. It’s probably worth noting that the communities that have enacted the sort of employment ordinances that would be prohibited by SB 213 are primarily Democratic-leaning communities. But then I doubt that comes as any great surprise…

And before somebody says “but Obamacare” or “but abortion” or “but _____ [fill in your favorite right wing cause de mode]”, let’s remember that we’re talking about local efforts to extend rights to people. Perhaps I’m not articulating it well, but I see a drastic difference between the federal government (or state government) telling states (or local governments) what they must do for people as opposed to telling states or local governments what they’re not allowed to do for people. Does that make sense? There is a big difference between requiring and prohibiting (though sometimes it’s a matter of semantics, I’ll admit).

Think of it this way: The federal government has set a minimum wage; it has not prohibited states from establishing their own wage laws so long as employees are provided at least that federal minimum wage. Thus, some states have enacted minimum wage laws that require employers to pay more than the federal minimum wage. Indiana has not done so. But the federal government has not told states that they cannot require employers to pay more. States are free to decide if businesses located in their state should be required to pay the state’s citizens a wage in excess of that mandated as the minimum by Congress. Again, Indiana has not done so. But some municipalities have (or are considering doing so). For example, Bloomington has a living wage ordinance that requires certain classes of employers to pay their employees $11.85/hour (Indiana’s minimum wage is $7.25/hour or $2.13/hour for employees receiving tips). Why shouldn’t Bloomington be able to make local businesses pay employees more? If the business doesn’t want to meet that requirement, it can move elsewhere, right? And nothing says that the business can’t raise its prices to reflect the increase cost of employees.

Yes, I understand there are some fine lines between the roles of the federal, state, and local governments. I understand that those lines are (often) drawn on the basis of the applicable constitutions. But it seems to me that in this case, SB 213 is an effort by Indiana’s Republican supermajority to enact legislation favored by businesses to rollback ordinances passed by local government for the benefit of the local voting electorate, usually in Democratic-leaning cities (and, perhaps, impacting primarily democratic voters). So just what is the rational being offered by Republicans for SB 213 beyond “protecting employers”?

Unfortunately, now that SB 213 has been passed by the House and Senate, it’s on its way to Gov. Pence.

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Wednesday, March 27, 2013

National Public Radio Repeatedly Offers the “Conservative” Viewpoints from a Man Known for Offensive Statements: My Open Letter

Dear National Public Radio and Mara Liasson:

File:Erick Erickson by Gage Skidmore.jpgI’m a fan. Really, I am. I listen to Morning Edition most every day and All Things Considered is my companion for the drive home. But I’ve noticed a disturbing trend lately that I really think you need to address. And stop. In several stories in recent weeks (for example, “Republicans Face Off Over Strategy For Picking Candidates”, “RNC Election Report Calls For Minority Outreach, Primary Changes”, and “GOP Encouraged To Shift Immigration, Gay Marriage Positions”), Ms. Liasson has looked to Erick Erickson to offer the conservative view of the issues being discussed. Now, while I’m not a fan of ad hominem attacks, I do think that National Public Radio and Ms. Liasson owe it to their listeners to provide a bit of background about Mr. Erickson and his views.

For one thing, it’s probably appropriate that Ms. Liasson inform viewers that both she and Mr. Erickson are contributors to Fox News.

But that’s not my real problem with the reliance upon Mr. Erickson or the platform that Ms. Liasson’s reporting gives to him. Nope. My real problem with Mr. Erickson is what he says when he isn’t providing generic conservative sound bites for Ms. Liasson to use on NPR’s programs.

For example, just today, Mr. Erickson said on Twitter (with regard to the Supreme Court’s hearings on the same-sex marriage cases):

You're not really loving your neighbor when you're cool with him staying on the road to hell.

In other words, Mr. Erickson has no problem saying that homosexuals are going to hell. Would National Public Radio tolerate that statement from a contributor on its programs?

Or in the wake of allegations that Pope Frances had turned over certain “leftists” to Argentina’s military government, Mr. Erickson tweeted:

That lefties are accusing the new pope of handing over lefties to the right wing junta for execution makes me adore the new pope.

Right. He “adores” the new Pope because he helped the right wing junta execute people with whom Mr. Erickson disagrees.

Mr. Erickson has also echoed Glenn Back’s claim that President Obama is a racist:

A while back, Glenn Beck called Barack Obama a “racist.” Given all the terrorists, thugs, and racists Barack Obama has chosen as close personal friends (see e.g. Rev. Wright), it’s not a stretch to say it.

Mr. Erickson also once accused President Obama of “perverting God’s Word”. What was Mr. Erickson referring to?

The President this week chose to pervert God’s Word to make the case for a tax increase

(Emphasis added; the quote goes on to discuss abortion and birth control issues.)

During the debate over health care, Mr. Erickson suggested that protesters should “send Obama to a death panel” (he later changed the post…). He also tweeted that White House Health Care Communications Director Linda Douglass was “the Joseph Goebbels of the White House Health Care shop”.

In response to feminist criticisms, Mr. Erickson refers to them not only using Rush Limbaugh’s “feminazi” insult, but also said:

That’s what being too ugly to get a date does to your brain.

I don’t know if Ms. Liasson is a feminist, but I’d wonder how she reacted to Mr. Erickson’s suggestion that feminists were too ugly to get a date.

And following the use of the Democratic National Convention to highlight the Republican War on Women, Mr. Erickson tweeted:

First night of the Vagina Monologues in Charlotte going as expected.

But those are hardly the worst things Mr. Erickson has said. Here’s one of his “greatest hits” (which even he acknowledged wasn’t his “finest hour”):

The nation loses the only goat fucking child molester to ever serve on the Supreme Court in David Souter's retirement.

Ah, yes. Let’s refer to a retiring member of the Supreme Court as a “goat fucking child molester” because, you know, that’s how we should refer to those who hold political views different than our own. Would National Public Radio air that sort of comment from one of its contributors?

And perhaps, my favorite, was on Mr. Erickson’s RedState blog back in 2009 when he wrote in opposition to a Washington state law designed to reduce water pollution. Rather than just voice his objection to the law or criticize the legislators who passed it, Mr. Erickson wrote:

At what point do the people tell the politicians to go to hell? At what point do they get off the couch, march down to their state legislator’s house, pull him outside, and beat him to a bloody pulp for being an idiot?

Were I in Washington State, I’d be cleaning my gun right about now waiting to protect my property from the coming riots or the government apparatchiks coming to enforce nonsensical legislation.

So you see, National Public Radio and Ms. Liasson, this is the man to whom you’ve been regularly giving a platform to discuss the conservative viewpoint. Is this the best spokesperson that you can find to articulate these views? And don’t you think that you owe it to your listeners to be sure that they really know just how out of the mainstream Mr. Erickson’s views really are? There are plenty of voices out there to articulate the conservative view. National Public Radio and Ms. Liasson, by giving Mr. Erickson a platform from which to speak (and by identifying his personal blog), are in essence giving at least some degree of support to the hateful rhetoric that Mr. Erickson expresses elsewhere. It’s time to put Mr. Erickson and his views out to the proverbial pasture and allow more reasoned and less vitriolic speakers to express the views of American conservatives.

Unless of course Mr. Erickson and his rhetoric really do speak for American conservatives, in which case we have far, far bigger problems.

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Friday, March 22, 2013

Yes, Mr. (Idiot) Congressman, SCOTUS Does Decide if Laws Are Constitutional

Ask any lawyer or law student to name some of the very first cases that they were assigned to read in law school and, almost invariably, one of the answers that you’ll receive will be Marbury v. Madison, 5 U.S. 137 (1803). This case is important to the very framework of our legal system because it was in this case that the Supreme Court determined that it had the right to declare acts of Congress unconstitutional and forms the basis for the judicial review undertaken by federal courts in the more than two hundred years since its decision. It is a basic decision, known to all lawyers, that has been essential to the functioning of our judicial system since shortly after the ratification of the Constitution.

But echoing a viewpoint that is heard, more and more often, from those on the right, Rep. Jim Bridenstine (R-Oklahoma) said in a recent interview that the Supreme Court doesn’t determine what is and isn’t constitutional (partial transcript from ThinkProgress):

Just because the Supreme Court rules on something doesn’t necessarily mean that that’s constitutional. What that means is that that’s what they decided on that particular day given the makeup of the Court on that particular day. And the left in this country has done an extraordinary job of stacking the courts in their favor. So what we have to do as a body of Congress is say, “look, just because the courts” — and I hear this all the time from Republicans — they say that the court is the arbitrator and after the arbitration is done, that’s the rules we have to live under and we can go forth and make legislation given those rules. That’s not the case. A perfect example if Obamacare. Obamacare is not constitutional, the individual mandate.

Let’s unpack this paragraph of nonsense, shall we?

First, as mentioned above, since at least 1803 the rulings of the Supreme Court do determine whether a law is constitutional. It has nothing to do with the makeup of the Court “on that particular day” as Rep. Bridenstine suggests. It has to do with all of the judicial decisions made by the Supreme Court going back to the ratification of the Constitution (and sometimes earlier). That is referred to as precedent. Now, that being said, the Supreme Court does, from time to time, reverse itself, though usually only after the passage of substantial period of time or a material change in circumstances. But changes of that sort don’t occur in a vacuum or without an issue before the Court to adjudicate.

Rep. Bridenstine apparently doesn’t subscribe to the notion that once the Supreme Court decides on the constitutionality of something, that decision becomes the “law of the land” under which future legislation is to be adopted. And his example? Of course, it’s Obamacare. Because in Rep. Bridenstine’s world he, not the Supreme Court, gets to determine whether that law was constitutional. Or, perhaps he means that he and his Republican colleagues get to decide the law’s constitutionality. Of course, that very notion ignores the fact that a majority of Congress passed Obamacare in the first place. Is he suggesting that Congress intentionally passed something that the members of Congress thought was unconstitutional? Or is he just saying that if the minority party (or even a member of the minority party) believes that a law is unconstitutional then it must, in fact, be so?

I’m sure, then, that Rep. Bridenstine would agree that the law articulated by the Supreme Court in Citizens United isn’t really the final word on whether the campaign finance law at issue was constitutional. I mean, given that Congress passed the campaign finance law in question, who is the Supreme Court to say that the law is unconstitutional? Right?

Which brings us to the central fallacy evidenced by Rep. Bridenstine’s idiocy: If the Supreme Court doesn’t determine the constitutionality of a law, who does? Congress? The President? Well, certainly it can’t be left up to Kenyan Muslim Marxist Fascists with with weird names who were elected thanks to ACORN, the New Black Panthers, and union thugs (did I miss any conspiracies?) to determine what is or isn’t constitutional. So it must be the job of Congress. So explain to me just how Congress is to determine that something that it has done is, in fact, unconstitutional? One would presume, wouldn’t one, that Congress thinks that a law it passes is constitutional? Don’t forget that members of Congress swear to uphold the Constitution:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

So I’m trying to imagine the scene where Congress votes to decide whether the law it just passed (and which presumably has been signed by the President) is, in fact, constitutional. And don’t forget that should the minority manage to obtain majority status, it can repeal a law it doesn’t like. But that doesn’t make the original law unconstitutional, does it? I’m so confused…

Moreover, think of the real potential for chaos if Rep. Bridenstine’s idiotic worldview were the basis upon which our system operated. What if Congress passed a law that permitted undocumented immigrants to be held as slaves or outlawed the practice of Islam. What if Congress passed a law that said that people of different races or religions couldn’t marry or that only landowners could vote. One would presume that the Supreme Court would find these sorts of laws to be unconstitutional. But if the Supreme Court doesn’t have that power, then who would stop these sorts of laws from being enforced? It seems unlikely that the Congress that passed the blatantly “unconstitutional” law would then censure itself for having done so in the first place. So what happens when the Supreme Court and Congress disagree? Does each side muster its army and fight it out on the Mall?

You see, Rep. Bridenstine was apparently absent that day in middle school civics when the teacher talked about checks and balances, because his worldview seems to give Congress near carte blanche to do what it wants so long as Congress thinks its actions are constitutional.

Look, I’m not saying that the Supreme Court always gets it right or that I always agree with the Supreme Court (Bush v. Gore, anybody?). But whether we agree or not, whether the Supreme Court is “right” or not, its decisions are, in fact, the law of the land and do, in fact, determine whether statutes are or are not constitutional. Rep. Bridenstine may not like Obamacare, he may think that the mandate is unconstitutional, but the Supreme Court has ruled and the constitutionality of the mandate is no longer in question. If he doesn’t like the law, he can certainly try to change it (the House GOP has already voted to repeal it 39 times…), but working to repeal a law that you don’t like is vastly different than finding the law to be unconstitutional or suggesting that it isn’t really the law of the land.

I also want to address one other allegation Rep. Bridenstine makes:

And the left in this country has done an extraordinary job of stacking the courts in their favor.

Again, recall that his criticism is the current Supreme Court’s decision regarding Obamacare. So, has “the left” stacked the Supreme Court? Well, only if you count either President Reagan, President George H.W. Bush, or President George W. Bush as a part of “the left”. 5 of the 9 justices (a majority, you’ll note) were appointed by those three Republican Presidents. Moreover, at present, Republicans still hold a narrow majority of all federal judicial appointments (5-4 on the Supreme Court, 82-81 on the Courts of Appeal; I don’t have current numbers for District Court judges, but as of late 2010, Republican appointees still held approximately 59% of federal benches). So the idea that “the left” has stacked the courts is simply and demonstrably false. But then we have to remember that Rep. Bridenstine is a Republican, so facts are optional for his worldview and understanding of history and reality. It’s also worth noting that if Senate Republicans hadn’t delayed consideration of President Obama’s judicial nominations, the percentages might be closer still.

You might wonder why the woman interviewing Rep. Bridenstine didn’t correct some of his misunderstandings of facts. Perhaps she doesn’t know. Then again, one would think that a woman who has played prominent roles in Republican policy endeavors (as founder and president of Liberty Central and head of Liberty Consulting) would have some basic understanding of some of these ideas and concepts. And given that she is married to a Supreme Court Justice who was appointed more than 22 years ago, one might think that she would have at least an inkling of how the court works. But I guess Justice Thomas has never explained how the Courts work to his wife Ginni. Such a shame.

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Tuesday, March 19, 2013

Offensive Statement in Opposition to Proposal to End Violence Against Women

I want to examine an offensive statement issued last week by a political group in response to a proposal to end violence against women. The statement sets forth the group’s objections to the proposal. For ease of reading and to help obscure who the group is (more on that in a moment), I’ve made some slight changes to the text and some omissions (that I will address later).

So, please take a moment, read this statement, and then see if you can identify the author of the statement. The group bemoans the following which it believes will transpire if the proposal to end violence against women is adopted:

  1. Granting women full sexual freedom, as well as the freedom to decide their own gender and the gender of their partners (ie, choose to have normal or homosexual relationships).
  2. Providing contraceptives for adolescent girls and training them to use those, while legalizing abortion to get rid of unwanted pregnancies, in the name of sexual and reproductive rights.
  3. Granting equal rights to homosexuals.
  4. Giving wives full rights to file legal complaints against husbands accusing them of rape or sexual harassment, obliging competent authorities to deal husbands punishments similar to those prescribed for raping or sexually harassing a stranger.
  5. Full equality in marriage legislation.

Any idea who is responsible for this list of worries? I’ll give you a hint. It wasn’t written in response to the Violence Against Women Act. Rather, it was written in response to the UN Commission on the Status of Women proposed declaration to End Violence Against Women. And the author? The Muslim Brotherhood. Read the Muslim Brotherhood’s statement again (this time, with the previously omitted text added back and edits removed).

  1. Granting girls full sexual freedom, as well as the freedom to decide their own gender and the gender of their partners (ie, choose to have normal or homo- sexual relationships), while raising the age of marriage.
  2. Providing contraceptives for adolescent girls and training them to use those, while legalizing abortion to get rid of unwanted pregnancies, in the name of sexual and reproductive rights.
  3. Granting equal rights to adulterous wives and illegitimate sons resulting from adulterous relationships.
  4. Granting equal rights to homosexuals, and providing protection and respect for prostitutes.
  5. Giving wives full rights to file legal complaints against husbands accusing them of rape or sexual harassment, obliging competent authorities to deal husbands punishments similar to those prescribed for raping or sexually harassing a stranger.
  6. Equal inheritance (between men and women).
  7. Replacing guardianship with partnership, and full sharing of roles within the family between men and women such as: spending, child care and home chores.
  8. Full equality in marriage legislation such as: allowing Muslim women to marry non-Muslim men, and abolition of polygamy, dowry, men taking charge of family spending, etc.
  9. Removing the authority of divorce from husbands and placing it in the hands of judges, and sharing all property after divorce.
  10. Cancelling the need for a husband’s consent in matters like: travel, work, or use of contraception.

There are two points that I want to make with regard to this statement. First, did any of you think that the original 5-point version of the statement came from a Republican, Tea Party, or evangelical Christian group? I can’t blame you if you did. Only item #4 (in the top list) seems to go much beyond the rhetoric and proposals that have been offered by far right (mostly religious) groups here in America. And it wasn’t that long ago that some of those same groups would have opposed allowing white women to marry black men (or vice versa), similar to the objection in item 8 (in the bottom list). Nor was it too long ago that inheritance rights weren’t equal. And of course, one of the reasons for passage of the Violence Against Women Act was to address the problem of spousal abuse.

More broadly, just think about the way that the Muslim Brotherhood is addressing women’s rights, gay rights, and the internal structure of a family. Now, compare those notions to the viewpoints expressed by Republicans in general and the Tea Party and evangelical Christian groups in particular. Recall, for example, that during the Republican Presidential primaries, candidate Michele Bachmann stated that as an evangelical Christian woman she was “subservient” or “submissive” to her husband in all things. Or just look back at some of my posts on the Republican War on Women. There isn’t much daylight between their respective positions and those articulated by the Muslim Brotherhood, is there? And yet I doubt many Americans would be willing to recognize that their positions align closely with those of the Muslim Brotherhood; in fact, I suspect that they’d be horrified learn just how closely their views align, at least until they learned where those alignments were.

So next time you hear a Republican, a member of the Tea Party, or an evangelical Christian discussing women’s rights, gay rights, or “traditional” family structures, you might think back to the statement of the Muslim Brotherhood and ask yourself if those are ideals with which you are comfortable. You might even ask the speaker if they took their talking points from the Muslim Brotherhood or just agree with them on the role of women and the rights that they should have.

The second point that I wanted to make is similar, but comes from almost the exact opposite end of the spectrum. Once again think about the views expressed by the Muslim Brotherhood. These views are not unique to the Muslim Brotherhood; rather they are common throughout the Muslim world. Moreover, it’s also worth noting that Hamas is, essentially, a construct and arm of the Muslim Brotherhood. Now, the next time you hear a liberal or progressive speaker criticizing Israeli policies and talking about the plight of the Palestinians, you might ask whether that speaker recognizes a difference between Israel’s treatment of women and gays and the treatment afforded them by Hamas. Just this month, the UN was forced to cancel a marathon to raise money for charity in Gaza because Hamas refused to allow women to participate. And gay rights groups in Gaza have to travel into Israel for meetings and rallies. How do progressive supporters of Palestinian causes and Muslim institutions defend viewpoints by those expressed by the Muslim Brotherhood?

The idea that women and gays are somehow second class citizens, not really entitled to be treated fairly or entitled to equality under the law isn’t just a problem in the Muslim or developing world. It’s also endemic to a part of the Republican party’s platform (contraception, abortion, or fair pay, anyone?). We shouldn’t think that the use of religious views to subjugate half (or more) of the population is limited to the Muslim or developing world. The theocratic, anti-woman, anti-gay legislation being proposed across the country — and it’s similarity to the dominant views and laws of the largely non-democratic and theocratic Muslim world — should give Americans reason to think carefully about just what we want our country to look like.

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Tuesday, March 5, 2013

The Perils of an Article V Convention

Last week, the Indiana Senate approved a resolution calling for an Article V Constitutional convention. Senate Joint Resolution 18 calls for a Constitutional convention “to return to an appropriate balance between the federal government and the states by specifically defining, and in so doing, limiting certain powers of the federal government”. The powers to be considered for limitation are “strictly confined to consideration of amendments concerning the limitation of the commerce and taxing powers of Congress”.

But the very idea of a Constitutional convention is fraught with unknowns and potential peril.

First, let’s review Article V of the Constitution (emphasis added; slavery language omitted):

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that … no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Now note what Article V of the Constitution does not say about a convention:

  • It doesn’t say how the convention will be organized;
  • It doesn’t say whether applications by states with different proposals are aggregated;
  • It doesn’t say how many delegates states are entitled to;
  • It doesn’t say how states will vote;
  • It doesn’t say whether a majority or super-majority is needed; and
  • It doesn’t say whether the convention can be for a limited purpose.

I will acknowledge that SJR18 is a well-drafted resolution that endeavors to answer at least some of these questions. For example, SJR18 specifically says that “each state should have one vote, regardless of the size of its delegation” and also provides that Indiana’s application to call a convention should be “aggregated with the applications of any other state legislatures limited to one (1) or more of the subjects” specifically identified in SJR18.

But query what happens if another state passes a resolution calling for a convention limited to the subjects in SJR18 but provides for a different number of votes for each state? What then? For example, why would New York, California, or Texas be willing to have the same number of votes as Indiana? For that matter, why should Indiana be willing to have the same number of votes as Montana? Think back to your high school history or civics class and you’ll recall that one of the major issues confronting the original Constitutional Convention was the allocation of voting power and how votes would be counted not only in the Convention but also in the new country (with the eventual compromise of the House based on population and the Senate in which each state was treated equally … oh, and the decision that slaves were 3/5 of a person, which makes you wonder whether and how we should count undocumented immigrants now…). Thus, it seems that large states would be opposed to a one state, one vote approach in a new convention while small states would be thrilled at the prospect. But query, for yourself, whether Wyoming and New York should have the same “power” in a convention? Or, to say it differently, why should Wyoming’s 576,412 citizens have the same single vote as the New York’s 19,570,261 citizens? Wouldn’t that make each of Wyoming’s citizens the same as nearly 34 citizens of New York? Is that fair? Is that a basis upon which to amend the Constitution?

And think about this: Right now, Congress isn’t working so well, is it? So why should we presume that the delegates to a new Constitutional convention would be able to do any better? Don’t forget that, in addition to proposing, debating, and voting on amendments, they’d first have to adopt rules and procedures by which the convention would operate. Nope. I don’t see any possibility for dissent, division, or gridlock there… I mean, here’s just a single example (presuming that we’ve already dealt with the number of delegates and number of votes per state): Does the convention have to agree to a new amendment by simple majority, two-thirds, or three-fourths vote? Go back and read Article V again. It has both two-thirds and three-fourths requirements for proposal and passage of amendments. So shouldn’t one of those super-majority provisions apply to a convention? But, then again, there is no explicit requirement for such. But I’m sure that the delegates will vote on how to resolve that issue. Um, wait… I’m sensing a disturbance in the force, Luke.

Indiana’s application is limited to discussion of two issues and the law regarding appointment of delegates says that delegates would lose their positions if they exceeded their authority. But query whether either of those limitations is constitutionally binding. Delegates to the original Constitutional Convention were also bound by limited authority and the convention was called for a single purpose that was vastly exceeded. So there is at least an argument that the limitation on issues and/or authority may be ignored.

There’s also a potential issue with how delegates are chosen by the states. Indiana’s resolution calls for the Indiana General Assembly to select the delegates (and contemplates two delegates and two alternates). But while the Indiana General Assembly may be dominated by Republicans (thanks, largely to gerrymandering), the state itself is not. After all, we just elected Democrats to both Senate and Superintended of Public Instruction (beating out a darling of the right). Thus, if the selection of delegates is left solely to the Indiana General Assembly, then its likely that a very sizeable minority of the population would not be represented by those delegates.

And we haven’t even gotten to the dangerous part, yet.

You see, the real problem with crafting amendments through the convention process is that we have no idea what that convention might decide to do. The fail safe is, of course, the fact that amendments proposed by a convention would still need to be ratified by three-fourths of the states. But ask yourself whether we really trust some of our elected state legislators (like the one who proposed the convention in the first place) to debate and decide these issues. Take a state like Indiana where Republicans hold a supermajority in both houses and in which the far right and Tea Party legislators seem to have forced their caucus further and further to the right. Do we really want legislators who have proposed bills allowing for nullification, the arrest of federal officers, fear of bogeyman UN takeovers, a desire to force children to recite The Lord’s Prayer, disbelief in science (evolution and climate change, for example) to be voting on amendments to the United States Constitution?

Just imagine a proposed amendment to replace the federal income tax with a national sales tax. That (and similar proposals) have been common ideas from the libertarian, far right, and Tea Party blocs. I can easily see such an amendment being adopted by a convention, especially if each state has just a single vote. Now just imagine what the campaign to convince state legislators to support that amendment would look like. Think of the amount of money that would be spent to try to get that amendment passed. And how much influence would those at the bottom of the economic ladder have over that process and debate? How much money could people who barely feed their families spend to influence their legislators?

It’s also important, I believe, to think about what else might come out of a Constitutional convention. I bet that there are a lot of people out there who would be willing to vote for an amendment calling the United States a “Christian nation” or allowing school prayer. Similarly, I suspect that a lot of people would be willing to vote for an amendment limiting application of the First Amendment to “Judeo-Christian” faiths or otherwise limiting the ability of Muslims (or other religious minorities) to practice their faith. There would probably even be support for rolling back certain civil rights protections or outlawing abortion entirely. Maybe there would even be support for an amendment to allow corporations to vote or to prohibit the teaching of safe sex or climate change or evolution. Just look at some of the crazy bills that have been offered in state legislators to get an idea of the type of things that might come before a convention.

Would any of these sorts of “crazy” amendments be passed by three-fourths of the states? I’d certainly hope not. But who knows? What kind of pressure would people put on their legislators (or, perhaps a better question is what kind of outside pressure would be put on legislators) to “go after those terrorist Muslims”? Imagine the vitriol that would be directed at the handful of legislators opposing a “Christian nation” or public prayer amendment. Most importantly, are those the sorts of things we really want to be discussing in the context of amendments to the Constitution? I mean, just look at the rancor and strife that we’re suffering through now over things as relatively “simple” as healthcare and the budget. When it comes to issues like abortion and discrimination, people have died or been killed. Now just imagine those issues being debated, not as part of a state statute or basic policy, but as a change to the Constitution.

I think when you look at these sorts of issues from a macro perspective, you’ll begin to realize that our democracy is still relatively fragile. If you discount the original Bill of Rights (10 Amendments), we’ve only amendment the Constitution 17 times (and of those, 1 was adopted just 5 years after ratification of the Constitution, 3 were adopted in the immediate aftermath of the Civil War to address slavery and equality, one was repealed by another just 22 years after its enactment, and 3 were to expand suffrage). Amending the Constitution is really meant to be a slow, laborious, difficult process. Putting who knows what sorts of amendments before the states could lead to a sort of political chaos and havoc that we may not be well-suited to weather.

What happens when all of the “red states” vote to repeal the 24th Amendment’s prohibition on poll taxes and the “blue states” vote against such a repeal? What happens when the red states vote to eliminate income taxes or to outlaw Islam or to return to the gold standard … and blue states don’t? What happens when red states vote to declare the US a Christian nation or blue states vote to erect a more concrete wall of separation between church and state. It’s all too easy to see the fault lines that could be exacerbated by a slate of proposed amendments to the Constitution and how various subsets of our nation would react.

Unfortunately, given the current political climate, given the degree of hostility that we’re seeing in our politics, given the money and its corrupting influence on our political system, I can’t say that I’m particularly trusting of how either a Constitutional convention or the state ratification process would work. I fear that the country that would emerge would be far, far different from the country we have now. Don’t get me wrong; we have serious problems that we need to resolve. But I don’t think that an Article V convention is the way to resolve those problems; rather, I think that convention would be much more likely to cause more problems and of a far more serious nature.

One more quick point: I think it’s worth taking note of just why the desire to have a Convention is being expressed. It’s obvious from the limitations that Indiana’s application focuses on. The point is to limit the taxing and commerce clause power of Congress. Hmm. Where have issues relating to taxing and the commerce clause been discussed recently? Oh, yeah. That’s right. Obamacare. You see, some Republicans (most of Indiana’s Senate Republicans) believe that Obamacare — the effort to expand access to healthcare to millions of uninsured and to make the healthcare insurance coverage more fair — is so wrong, so unconstitutional, that we need a Constitutional convention to scale back that power. That, in a nutshell, is what this is all about.

Republicans lost on the issue in Congress. They’ve tried to repeal Obamacare more than 30 times … and lost. And they lost in the United States Supreme Court (a conservative-leaning Court, I might add). So what else can they do? Amend the Constitution. But they know that they don’t have the 2/3 votes needed in Congress (remember, Democrats control the Senate and Republicans have a narrow majority in the House, even though they lost the popular vote for Congress) to propose an amendment. Thus, the effort to call an Article V convention. Just to overturn Obamacare.


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