Categories
politics

Defining “Rights”

I liked this very succinct argument about why health care is not a right.

With one exception, the right to representation in court and a trial by jury, {the rights safeguarded in our Constitution} require nothing of any other citizen but that they recognize your rights and not interfere with them.

Your “right to health care” would require some other person to give up a portion of their life or their property to either treat you or to provide you with drugs or medical implements. The Constitution does not provide for another individual to be indentured to you in this manner.

Therefore, you have no “right” to health care.

What I really like is that this argument provides a plausible framework for distinguishing between fundamental rights and the manufactured “rights” that make for such good campaign promises. Does anyone else have any perspective on this argument (in general or specific to health care)?

Categories
National politics State

Near-Sighted Legislation

The senate is scheduled to vote today on whether to debate the bill to make two new seats in the House of Representatives and give them to give Utah and D.C. My opinion on this can be found in an editorial at National Review Online (no, I didn’t write it, but it expresses the same position I hold). The one new thing I learned from that article was that the bill does not specify that Utah gets the second seat, but that it would go to “the state that stands next in line to receive a seat through the normal process of apportionment.” (currently Utah) I guess I did know that, but I did not realize the wording.

When I wrote about this issue in July I made much the same argument as NRO and stated that Utah had nothing to gain by pushing for a new representative with so little time before the next census. Representative Chris Cannon (R-Ut) points out that we do have something to gain – money. Sending a new representative earlier gives earlier seniority and allows for more pork money to be sent home from Washington. Unfortunately sending pork money home is exactly the way to buy votes for re-election.

I’m sure this sounds un-American of me but if the purpose of a representative is to send more pork home then we should reduce the size of the house to 250 or less rather than increase its size by 2. What we need in this country is not more money being passed around after filtering through the capitol. This only ties us to greater dependence on the federal government and gives more power to what was supposed to be a relatively weak central governing body.

UPDATE: The bill failed. But Senator Hatch promises to keep pushing for it until we pass his flag burning amendment. If we got him a recording contract in Nashville would he retire from the Senate?

Categories
politics

Fourth Seat for Utah

The bill to give Utah a fourth seat in the House of Representatives has been hanging around for quite some time. It has not had too much coverage lately because very little has been happening with it. Yesterday I was surprised to see two editorials on the issue in Utah newspapers (Deseret News, Daily Herald). What really surprised me was that both editorials were against the bill. Back when this bill was getting more attention I was constantly disappointed that most of the coverage of the issue was supportive of the bill.

The reasons given for opposing the bill are that the other half of the legislation (giving Washington D.C. a voting member of the house) was unconstitutional. As the Deseret News pointed out, the goal of giving D.C. a voting member of the house is not without merit, but it is outside the scope of legislation. The proper way to accomplish this is to change the constitution, or make D.C. a state or part of a state. These are the same arguments I have been making on blog posts and comment boards ever since the issue was first raised. (Surprisingly, I discovered today that I have never talked about it here.)

The Deseret News offers one other reason to oppose the bill – timing. I have always argued that Utah should just wait until we get a new seat – we’re growing much faster than the country as a whole so we’ll gain new seats as the census gets updated. The editorial argues that the time is getting short enough now (only 3 years or less before we get new seats anyway) that Utah has nothing to gain by pushing legislation for a provisional seat in exchange for a (currently unconstitutional) permanent seat for D.C.

Categories
politics

Our Constitutional Foundation

My preferred perspective about Memorial Day is that it is not simply a day to remember those who have given “the last full measure of devotion” but also a day to reflect on what it is they were protecting. To do that we must look to the foundation of our country. In that mindset I have been reviewing the Constitution.

Our federal government is comprised of three branches. First, the Legislative branch which is composed of a Senate, with representation by state, and the House of Representatives with representation by population. The legislative branch is where laws are made. Second, the Executive branch which is responsible for commanding the military and, with the consent of the Senate, making treaties and appointing other officers of government as necessary. This power is wielded by the President. Third, the Judicial branch which consists of the Supreme Court and other courts as designated by Congress. The courts officiate in law suits, criminal and civil. The Supreme Court has appellate jurisdiction in all cases and original jurisdiction where federal official or a state is a party to the suit.

Each state is required to accept “the public Acts, Records, and judicial Proceedings of every other State.” In addition, the United States is to guarantee that each state has a republican form of government. Two thirds of each house of congress, or two thirds of the state legislatures are required to propose amendments. Three fourths of the state legislatures are required to ratify an amendment. Nine of thirteen (virtually three fourths) of states were required to ratify the constitution to make it effective.

The first amendment prohibits congress from making laws to establish religion or prohibit the free exercise of religion. This applies to our attempts to prohibit the exercise of religious belief by Iraqis in establishing their government. We should not prohibit their free exercise. This also applies to the Church of Secular Purity. This amendment also protects our rights to peaceably assemble and say/write what we think.

The second amendment rules that citizens have the right to keep and bear arms, but it does not specify that they may own any kind of arms without limitation, or that they can take those arms any place without restriction. There is a fair amount of discretion still available there. Connected to that, the third amendment states that citizens cannot be forced to house soldiers in times of peace. The fourth amendment declares that citizens and their property shall be protected from unreasonable search or seizure.

The fifth amendment provides that we may be spared repeated trials for a single crime and that we need not witness against ourselves. It also provides that citizens shall be compensated when private property is taken for public purpose. The sixth amendment guarantees that we have access in criminal cases to a public trial by an impartial jury in the place where we are accused of committing a crime. It also stipulates that the accused must be allowed counsel and the opportunity “to be confronted with the witnesses against him.” The seventh amendment stipulates that in civil cases involving more than $20 the right to trial by jury stands. The eighth amendment prohibits cruel or unusual punishments.

The ninth amendment specifies that just because a right is not listed in the constitution is not sufficient proof that such right does not exist. The tenth amendment specifies that any power not specified as the jurisdiction of the federal government shall be reserved to the state governments. (I wonder why that seems not to have been applied.)

The eleventh amendment prevents a citizen from suing a state in federal court.

The twelfth amendment separates the presidential and vice-presidential votes rather than awarding the vice-presidency to the second highest vote-getter among presidential candidates. The twentieth amendment specifies the time for changes of president. The twenty-second amendment specifies a limit of two terms per president. (Some kind of term limits should be placed on Senators and Representatives as well.) The twenty-third amendment grants an electoral vote to the District of Columbia. The twenty-fifth amendment specifies that the vice-president becomes president if a president dies in office.

The thirteenth amendment abolished slavery. The fourteenth amendment alters apportionment and other issues left from the abolishment of slavery.

The fifteenth amendment specifies that race cannot be used to discriminate in a citizen’s right to vote. The nineteenth amendment later gave voting rights without regard to gender. The twenty-fourth amendment would later clarify that defaulting on taxes could not be used as an excuse to deny voting rights to a citizen. The twenty-sixth amendment lowered the age for voting from 21 to 18.

The sixteenth amendment allows for income tax.

The seventeenth amendment changes the way senators are chosen from being chosen by state legislatures to being chosen by direct, popular vote.

The eighteenth amendment makes it illegal to produce or distribute liquor. The twenty-first amendment repealed this almost fifteen years later.

The twenty-seventh amendment specifies that congressional pay increases do not go into effect until after a new congressional election. (This would be more useful if we had term limits or pay increases were only active for the successors of those who voted for the increase.)

If we understand our foundation we might recognize the limits of the society that we can build. We can also know how and when to alter the foundation if we do not like the society that it is producing.

Categories
culture politics

Massive Do-Over

I have been thinking and reading about political issues like congressional seats for Utah and Washington DC, where America currently stands on abortion, and the complexity and complaints about unfairness in our tax system. I’d love to write a post about almost all of these topics, but then I got to thinking – what if we just started over.

Pretend that we put a freeze on federal law and started a constitutional convention to rewrite our government from the ground up. We would rewrite the Constitution, including the Bill of Rights. All federal agencies would be scrapped although the military and others employed by the current agencies could probably expect that many of them would have similar opportunities under the new system. We would appoint a fresh slate of leaders – no consideration of when their terms would have ended under the current system because we might not even have the same positions available in the new system.

Now I’m not saying that we should do this, I’m asking what might happen if we did.

My own suspicion is that we would keep the structure of a bicameral legislative branch as well as an executive branch and a judicial branch. Beyond that, what would be said of issues like abortion or who has what kind of representation? What new balance of power would emerge between federal and state governments? At least two Constitutional amendments would disappear (because they cancel each other out) but would more go? What social issues might show up as new amendments?

Help me out here – what do you think this would produce? Does it differ from what you think it should produce?

Categories
politics

The Electoral College

I have found Oval Office 2008 to be a great place to go for commentary on the 2008 Presidential elections. Normally they don’t get into politics outside of the presidential candidates, but today they made an exception. They reported that Maryland had enacted a law which would assign their electoral college votes to the winner of the national popular vote regardless of who wins in Maryland. The only catch is that the law will only go into effect if states representing at least 270 electoral votes enact similar laws. There are a number of states that have considered doing something like this. Who knows what will happen.

There is an interesting discussion in the comments of that post about the constitutionality of this move. My own feeling on the subject is that I would always oppose this type of move. I think that the founding fathers did not create the electoral college on a whim and I don’t buy the argument that it was because they could not count the popular vote without a computer. Then again, I think that each state should award their electoral votes proportional to the results of the popular vote in their state rather than block voting. That would make it so that candidates would find some value in appealing to states with small electoral vote constituencies. It would also mean that they could not afford to ignore a large state where they have no chance of winning outright.

I have argued before that under the current system it does not matter if you are from Utah or New York, your vote does not count in national elections because the electors in your state are predetermined. The current system has its flaws, but I’m not sure the system of just going with the winner of the popular vote is better. We are a republic after all and not a democracy. This was by design so lets be careful before we redesign the system.

Categories
politics

17th Amendment

I love being invited to comment on things. In this case, I have been pointed towards an article from September of 2002 by John W. Dean on the 17th Amendment to the Constitution and whether it should be repealed. As a brief reminder, the 17th Amendment changed the way that senators were selected. Originally senators were chosen by state legislators while representatives in the house were selected by direct election. That structure, and the election of the president by the electoral college are the two fundamental differences between our government and a pure democracy.

Dean suggests that the 17th Amendment, along with the 16th Amendment (legalized income taxes) were the driving forces behind the expansion of the federal government in the last century. He also points to Federalist No. 10 which suggests that the purpose of the Senate is different from the purpose of the House of Representatives. The Senate was not expected to represent the citizens of their state, but rather the government of their state. In fact, what James Madison describes for the Senate sounds more like what we might have if the Republican Governors Association and the Democratic Governors Association were to come together in a governing body.

The article cites law professor Todd Zywicki from George Mason University in saying that “the true backers of the 17th amendment were special interests” who “hoped direct elections would increase their control, since [direct elections] would let [the special interests] appeal directly to the electorate, as well as provide their essential political fuel – money.” Although that assessment sounds right, I cannot prove it. I can say that the change has voided any significant difference between Senators and Representatives. Now the difference is that Senators serve longer terms and do not represent a set number of constituents.

Dean concludes:

Repeal of the amendment would restore both federalism and bicameralism. It would also have a dramatic and positive effect on campaign spending. Senate races are currently among the most expensive. But if state legislatures were the focus of campaigns, more candidates might get more access with less money — decidedly a good thing.

Zywicki adds:

Absent a change of heart in the American populace and a better understanding of the beneficial role played by limitations on direct democracy, it is difficult to imagine a movement to repeal the 17th amendment.

I agree on both counts. I believe that the founders did not structure our government as they did based on whims. They knew what they were doing and most of us do not understand what they were doing, much less why they were doing it. They allowed for amendments because they knew it would be necessary to make changes at times – I think the founders would have applauded the 14th Amendment. But I also think that it is not wise for us to use the amendment process to fundamentally change the form of government that they set up. Sadly, most citizens are not sufficiently informed to understand the differences caused by this amendment.

Categories
politics

The Iraqi Constitution

I have been very interested to hear about the progress on the Iraqi constitution. Naturally most of the commentary was about how bad the constitution was and how it was a step backwards for the US. I keep hearing about a new Iran. Finally I read this article where there was something positive to say. I grant that David Brooks is one of the people who is more likely to agree with the president, but I have to agree with much of what he says because I had recognized the reality of the following quotes back when I reviewed No God but GOD:

“The Bush administration finally did something right in brokering this constitution,” Galbraith exclaimed, then added: “This is the only possible deal that can bring stability. … I do believe it might save the country.”

Galbraith’s argument is that the constitution reflects the reality of the nation it is meant to serve.

What’s important, Gerecht has emphasized, is the democratic process: setting up a system in which the different groups, secular and clerical, will have to bargain with one another, campaign and deal with the real-world consequences of their ideas. This is what’s going to moderate them and lead to progress. This constitution does that. Shutting them out would lead to war.

The men being quoted here by Brooks are Peter W. Galbraith, a former United States ambassador to Croatia and Reuel Marc Gerecht, formerly of the C.I.A. and now at the American Enterprise Institute.

I make no claim of special understanding regarding the Iraqi people or this draft of a constitution but we must have a constitution that fits the people that it is intended to govern. If these men that Brooks has quoted are right about the Iraqis and this constitution than I have to conclude that it is a good thing. If our American values see it as too much like Iran perhaps we would do well to remember that the Iraqis are much more like their Iranian neighbors than they are like us Americans from halfway across the world and that’s just fine with me. If we are attempting to remake them in our image then we should not be there in the first place because it will never happen.

Categories
National politics

Right Data – Wrong Conclusion

When the New York Times publishes an editorial I always read carefully. I do not agree with some of their columnists, but I have never disagreed outright with the columns of their editorial board – until they said that we should Abolish the Electoral College. I fully agree that “the Electoral College makes Republicans in New York, and Democrats in Utah, superfluous. It also makes members of the majority party in those states feel less than crucial.” But I cannot agree that “The small states are already significantly overrepresented in the Senate.”

The apparent disparity built into the electoral college by the founding fathers was not an accident based on a desire to not have to count each individual vote nationally back when it was more difficult to count each vote. The fact is that even back then every state had to get a tally of each vote within the state to choose the electors and even today it would only take a couple of minutes with a paper and pencil to add the numbers certified by each of the fifty states.

Let’s think about the effect that abolishing the Electoral College would have on national campaigns to remind ourselves why it was invented in the first place. We have seventeen states in play during this election. Without the Electoral College a solid majority in the ten largest states would allow a person to get elected so long as they did not lose by large margins in the other forty states. Not only that but since the concerns of voters break more along regional lines than strictly along state lines the campaigning would actually take place in two or three regions that comprise a solid majority of voters. That is not any better than the current situation. It actually sounds like the situation with the South when Lincoln was elected in 1860. It would mean that we would always know which ten or fifteen states all the campaigning would take place in well ahead of time. If you live in one of those largest of states it makes perfect sense to call for the abolishment of the Electoral College where the politicians will pander to your wishes perpetually.

As for the smaller states being over-represented in the Senate, that fact is balanced by their underrepresentation in the house where agreement of the ten largest states can override the interests of the other forty states and all the other representatives in the House. These “smaller” states tend to be among the largest states with regard to land and resources for the nation. In these under-populated states the federal government often controls huge amounts of the land which means that they must have adequate representation lest their rights be trampled by states with higher populations and far different concerns.

It is presumptuous to say “it’s a ridiculous setup” without allowing the system to function as it was designed – which it does not do currently. We must eliminate block voting by all the states which, unlike the Electoral College, is not established by the US Constitution if we are to see how the Electoral College was meant to work. Until we have tried the more representative version of the Electoral College that the founding fathers envisioned we cannot accurately say that it is fundamentally flawed.

It would probably be useful for me to note here that Maine and Nebraska do not practice block voting. In Colorado the Democrats are trying to put a referrendum on the November ballot to stop block voting there as well. I know that in these states the votes corresponding to their representatives are divided proportional to the vote and the votes corresponding to their senators are blocked for whoever carries the state. That is one example of how to not vote as a block. I am sure that there are more options than how these two states do it or straight block voting.

It is possible that we could still find that the Electoral College does not work and that we need to change the system but we should try to fix the problem without altering the constitution before we jump into yet another ill-conceived constitutional amendment debate.