Various thoughts on current events with an emphasis on politics, legal issues, books, movies and whatever is on my mind. Emails can be sent to firstname.lastname@example.org; please put "blog comments" in the subject line.
Majority Rule Matters as a Minority Wins Nationally
I don't agree with the whole of Sandy Levinson's analysis (see, e.g., Balkinization Blog and his books) and definitely am wary about some sort of constitutional convention of which he supports, but at some point his overall concern about anti-democratic aspects of the Constitution getting out of control is hard to ignore. You deal with problems, especially when you don't think change can occur, but as the Declaration of Independence notes, at some point it gets a bit much.
"Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed."
Simply majority rule is not appropriate here. Think small scale. Five friends. They decide where to go to dinner. Given their druthers, three would go to a non-kosher establishment, but one is an observant Jew. They respect this is more important than their preference otherwise, though being friends with such a person influences their preferences in the first place.
Or, maybe one strongly doesn't like a place, perhaps because their ex works there & it was a real bad relationship. They want to go as a unit but the person says "I'm going to 'filibuster' here because I really feel strongly. If four of you still want to go, I'll go along, but you better really want to go." If the other four insist merely because they have the power to do so, things will get uncomfortable. OTOH, if the one uses their filibuster card too much, in an unfair way, it is a problem.
Not in for everything he says, I think it is time -- like Sandy Levinson notes -- to strongly support making clear that when a minority skewers the system too much, especially when the result is President Trump & some of the stuff the Republicans are doing these days (principle is made clearer when consequence can be shown), we need to fix it somehow. At the very least, when a minority is going to have a special leg up, if they go too far, it has to be rejected. The SYSTEM is a problem, not just one or more of its component parts. We saw during the election just criticizing a personality wasn't enough.
So, even though in our system mere majority rule is not the rule, the fact a majority supports the Democrats matters. Surely, if the tides was turned, Republicans would say that. They toss out "popularity" when it suits them, just like when it suits courts etc. that are "undemocratic" (for instance, to protect certain rights that a majority might ignore) are deemed problematic. And, respect of the minority matters in various cases, but that too can be abused. We need to look big picture as we face our problems.
A final look at numbers. The popular vote went the Democrats way for the President and the Senate, but not the House of Representatives. It's somewhat hard to tell here since the system in place sets up certain candidates (a safe seat, e.g., will lead to no or token opposition in various cases) etc. that affects the final vote. Gerrymandering does not just lead to certain results of who wins (studies show limited results here in certain states, but if the system is already stacked, every little bit hurts) but affects voting as a whole. And, Republicans are going to have an edge in state races too, since there are more thinly populated red leaning states. But, yes, Democrats need to correct a very serious unbalanced trend of state control.
Plus, big picture, I think there are two parties: a moderate party (mostly Democrat but has a few Republicans, who can win state-wide offices in blue states) and a conservative one (mostly Republican). This helps Republicans in state races and skewered things nationally, since there is promoted a sense of "both sides" when they are not evenly composed. Anyway, horrible losses unfortunately are sometimes the only times people "snap out of it" (Moonstruck), but also are opportunities. Republicans looked in control in 1928 and Democrats in the mid-1850s. Of course, the change -- like labor pains generally -- was unpleasant.