The Shortsighted Electoral College (concluded)

The major effect of the original Electoral College was not to give power to the small states but to the slaveholding states. Madison had said that a direct presidential election was “fittest” but it would harm the South, citing the more “diffusive” franchise in the North, but the Virginian slaveholder continued with the curious comment that with a direct election the South would “have no influence on the score of the Negroes. The substitution of electors obviated this difficulty. . . .” The “difficulty” was avoided by basing the number of electors on representation in the House of Representatives. The apportionment of the House, of course, incorporated the three-fifths clause where that percentage of slaves was used in the allocation of House seats.

The three-fifths clause was, therefore, incorporated into the Electoral College giving extra power to the large slaveholding states. The first census in 1790 found that New York had a free white population of 313,000 and North Carolina had a free white population of 289,000. Each state had the same electors, however—twelve—after that first census. While New York had 21,324 slaves, North Carolina had 100,572. South Carolina had a free white population of 139,000 but New Jersey had thirty thousand more. Even so, South Carolina had twelve electors and New Jersey eleven. South Carolina had 107,094 slaves and New Jersey 11,423. (New Jersey is the starkest example of why Madison feared for the effect on the South if there had been a direct election of the President. Even if the franchise had been equally distributed in South Carolina and New Jersey, New Jersey with its larger white population no doubt would have had more power in picking the president; if the turnout was equal, New Jersey would have about 20% more votes than South Carolina. But as Madison had to know, New Jersey then allowed women to vote, and its total vote might have been twice that of South Carolina’s. With the Electoral College as adopted, even though South Carolina had the smaller white population, it had more power in the presidential selection than New Jersey.)

Virginia had a free white population of 441,000; Pennsylvania had 422,000, about a four percent difference. Virginia had 292,627 slaves and Pennsylvania had 3,731. Even though 40% of Virginia’s population could not vote, Virginia had forty percent more electors than Pennsylvania—twenty-one to fifteen.

A direct vote for President would have lessened the power of the South; instead the electoral college as adopted magnified it. Founders recognized and said that large states would dominate the vote in the Electoral College, and Southern states would have special influence in picking a President because of the peculiar way in which slaves were counted.

Unlike what some people now claim, the demigods of 1787 did not protect small states via the Electoral College, and their sop of requiring electors to vote for two people with one not from the state of the elector proved to be a laughable protection. The Framers in adopting the Electoral College did not foresee the rise of political parties even though parties were in place only a few years after the Constitution was adopted and were evident in the first contested presidential election, after Washington retired in 1796.* By then, two men ran as a team with one running for President and the other as Vice-President. The country made it through 1796 without a major problem, but the Electoral College caused a crisis in 1800.

Thomas Jefferson and Aaron Burr ran as a Republican team in the presidential election. The widespread understanding was that Jefferson was running for President and Burr for Vice President. John Adams, the Federalist incumbent, ran with his vice-presidential running mate Thomas Pinckney against Jefferson and Burr. Jefferson got seventy-three electoral votes to Adams sixty-five, making Jefferson the apparent victor, but of course, because each elector had two votes, Burr received the same number of electoral votes as Jefferson. A tie, which was not foreseen by the Framers but was close to inevitable with the rise of political parties.

The selection of the President in 1800 went to the lame-duck Federalist-dominated House, even though the Federalists had lost the election. That losing party had to decide which Republican, Jefferson or Burr, was the lesser evil. Thirty-six ballots later, Jefferson became the third President. And we got the Twelfth Amendment to fix this major flaw. That Amendment required electors to cast separate votes for President and Vice-President.** At least when it came to the Electoral College, the Framers did not see very far at all.

Remember this whenever someone suggests that the Framers were infallible or that the Constitution is a God-given document. And remember that the original Constitution gave the major slave-holding states the dominant power in picking the President.

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*The Framers also did not foresee that electoral votes would be allocated by a winner-takes-all approach where the candidate with the most votes in each state would get all of that state’s electoral votes. That development, however, did not come quite as quickly as the rise of political parties. In 1796, even though Jefferson won the most votes in Pennsylvania, Virginia, and North Carolina, one elector in each of those states voted for John Adams instead and those three votes made Adams president. He received 71 electoral votes to Jefferson’s 68. Jefferson received the second most votes. (Adams’s running mate, Thomas Pinckney, garnered 59 electoral votes.) Under the electoral system then in place, Jefferson became Vice-President under his political enemy, Adams, an uncomfortable result.

**Elections might have been more fun if we still had the original electoral scheme as indicated by Alexander Hamilton’s devious actions in 1796. Although Adams and Hamilton were both Federalists, Hamilton did not want Adams to become President. Supposedly Hamilton approached electors in states Jefferson had won and urged those electors, after voting for Jefferson, to give their second vote to Thomas Pinckney. Hamilton was hoping that Jefferson-Pinckney votes plus Adams-Pinckney votes would give Pinckney the most electoral votes and the Presidency. Hamilton’s machinations seem to have borne some fruit, most notably in South Carolina where both Jefferson and Pinckney received eight electoral votes. The scheme failed because in a number of states that Adams won, the electors divided their second votes between Pinckney and other candidates or did not give any second votes to Pinckney. For example, Adams received nine votes in Connecticut, but Pinckney got only four, with five votes going to John Jay. New Hampshire gave six votes to Adams, but none to Pinckney. Pinckney received twelve fewer electoral votes than Adams. But think of the gamesmanship we might have if this original electoral edifice still existed.

The Shortsighted Electoral College

 With a presidential election looming, it should be a good time to examine again the efficacy of the Electoral College, but if the electoral vote follows the popular vote this time, the topic’s urgency will dissipate. There is, however, another good reason to consider the Constitution’s original electoral system. The insertion of Amy Coney Barrett onto the Supreme Court has made many think again about our Constitution and how to interpret it. A strain of constitutional interpretation regards the original men who framed the Constitution as so sagacious and farsighted that their constructs of 1787 are still perfect for us now. Some believe that God inspired the Constitution.

The Framers did write an amazing document. The governance it started continues on in a somewhat recognizable form to that of 1789, an extraordinary achievement. Nevertheless, an examination of the Electoral College the originators adopted reveals their foresight to have been quite limited. We should remember these limitations when some seek to deify the Framers and the Constitution.

After reading some contemporary comments suggesting that the point to the Electoral College was to preserve the powers of the small states so that the large states would not dominate the presidential selection, I pulled out The Records of the Federal Convention of 1787 edited by Max Farrand and The Federalist Papers to see what these sources said about the method of selecting the president. The issue was debated again and again in the Constitutional Convention of 1787. The delegates would agree to a method, but potential flaws in that selection process would circulate. A different scheme would be proposed and problems with the new proposal would be pointed out. This merry-go-round continued until near the end of the convention when the delegates finally settled on the Electoral College as it appears in the original Constitution.

The convention first voted to have Congress  choose the President, but criticisms soon emerged. In James Madison’s words: “If the Legislature elect, it will be the work of intrigue, of cabal, and of faction: it will be like the election of a pope by a conclave of cardinals; real merit will rarely be the title to the appointment.” Foreign governments would try to influence Congress in the selection of the President because they would think it important “to have at the head of Government, a man attached to their respective politics and interests.” In addition, a basic goal of the Constitution, the separation of powers, would be compromised because the President would be beholden to Congress for his selection. In addition, as Alexis de Tocqueville, the astute observer of the United States, wrote in Democracy in America forty years later, Congress, chosen to make laws, “would represent but imperfectly the wishes of the nation in the election of its chief magistrate; and that, as they are chosen for more than a year, the constituency might have changed its opinion in that time.”

This and many other methods were proposed and rejected: The state governors should select the President; electors selected by Congress should make the choice; electors drawn by lot from Congress should choose the President.

Madison said that the “fittest” way to select the President was to have a direct election, but he then noted two problems. “The first arose from the disposition of the people to prefer a Citizen of their own State, and the disadvantage this would throw on the smaller States.” Madison did not find this problem insurmountable and said “that some expedient might be hit upon that would obviate it.” The next speaker, however, differed with Madison’s optimism by saying, “The objection drawn from the different size of the States, is unanswerable. The Citizens of the largest states would invariably prefer the Candidate within the State; and the largest States would invariably have the man.” The delegates thought that a direct election would prejudice the smaller states, but what concerned them was that candidates from small states could not get elected because the parochial electorate in the large states would favor candidates from their states and those large-state votes would overwhelm the candidates from small states. (Reminder. In the last presidential election, Trump was then a lifelong resident of a large state, but New York overwhelmingly voted against the hometown boy. Perhaps the Founders were not familiar with the adage, “Familiarity breeds contempt.”)

Madison also maintained that a direct vote would undermine the South. Many northern states had eased the traditional requirement that only white male citizens who owned property could vote by allowing white males who paid taxes also to have the franchise, and in New Jersey, even women had the vote. Madison recognized that the “right of suffrage was much more diffusive in the Northern than the Southern States.” A higher proportion of people in the North could vote than in the South, and the South’s power would be diluted by a direct election.

Madison and others maintained that an electoral college, however selected, would obviate some of the concerns of a congressional selection. The electors would be chosen for only one purpose and would meet just once, and in the adopted version, not meet together but in the separate states so that there would be little opportunity for cabals, intrigues, and foreign influence.

An electoral college, however, does not necessarily alleviate the small-state concerns. Today many see the founders protecting the small states by giving them a slightly greater number of electors than is justified by their populations. The founders, however, addressed the small-state problem in a different way. The concern was that a candidate from a small state, even if worthy, would inevitably lose because the large-state electors would vote for one of their own. The solution: each elector would vote for two people, one of whom must not be from the elector’s state. The delegates thought that while one vote may go to someone from the home state, the second vote would be for the person seen as the best in the rest of the country, and if that person was from a small state, he could be elected with a collection of second-choice votes.

The Founders added another “accommodation to the anxiety of the smaller States,” as Madison wrote in a letter in 1823. If no person got a majority of the appointed electors, then the House of Representatives would choose the President from the five highest on the electoral list with each state having one vote. The largest and smallest states would be equal in this process, which, according to Alexander Hamilton in The Federalist Papers, would be “a case which it cannot be doubted will sometimes, if not frequently, happen.”

That Senators as well as Representatives were included in determining each state’s electors may seem to have been a major protection of the small states, but delegates knew that the large states would dominate the Electoral College. Luther Martin writing to the Maryland Legislature after the draft Constitution was promulgated but before it was adopted said that the “large states have a very undue influence in the appointment of the President.” Gouverneur Morris, a delegate to the Constitutional Convention, writing in 1803, noted that it was recognized that the large states would dominate the Electoral College. Only if the matter went to the House of Representatives did the small states have a substantial voice in the presidential selection.

(concluded October 30)

Snippets

I was waiting for an angiogram in a room divided into cubicles by curtains. I could hear the guy next to me chattering, not to me, but to the nurse, who was taking his history. When the guy learned that the nurse was a Filipino, he became more voluble because his sister-in-law was a nurse born in the Philippines. I and anyone else in the room learned how his sister-in-law had worked in New York City at Bellevue Hospital but that she now worked at Stony Brook Hospital on Long Island. She had married into an Italian-American family, and she loved cooking Italian food. He exclaimed proudly, “You wouldn’t believe the spread she puts out on New Year’s Eve. We all go to her house. The food is so beautiful, and she makes so many dishes.” When he went off for his procedure, I was left in relative silence for an hour or more before I was wheeled off, but my neighbor-patient’s comments continued to ring in my ear. They made me feel better about America.

          New York City, along with several other jurisdictions, was named an “anarchistic jurisdiction” by the Trump administration in an effort to withhold federal funds. But I also hear from conservatives that NYC has confiscatory taxes to support its oppressively big government.  Anarchy, big government . . . if words have meanings, both terms can’t apply. Pick one epithet, not both.

          The controversy over the elevation of Amy Coney Barrett to the Supreme Court brought about hopes and concerns about the future of Roe v. Wade as well as the future of same-sex marriage and other LGBTQ rights. The future of the Affordable Care Act also hangs in the balance. This has given me pause. I know that the Supreme Court will be considering a case about the ACA, but even though I have some understanding of constitutional law, I do not know the reasons that suggest that Obamacare is unconstitutional? Do you? I don’t believe many people do, but I know that many desire its end. Why? Nearly all the complaints lodged against the healthcare law are not true. (You can check them out! Go online.) I assume that nearly all of the Republican and conservative elites know that the attacks on the ACA are canards, but they still act as if the foundations of society are crumbling because of the law. Why the adamant opposition? A recent analysis by the Congressional Budget Office may reveal why the Republican establishment wants the end of the Affordable Care Act. Tax increases designed to fund Obamacare are concentrated on the top one percent, but its benefits are spread widely among the bottom 40% of income earners. Thus, the ACA produced an income increase of 3.6% in the bottom income quintile and a 3.2% income increase in next higher income quintile. The middle quintile saw a 0.5% income increase with minor income increases up the income scale until we get to the top 1% where there was an income drop of 1.2%. Perhaps, such income redistribution above all else, explains why Paul Ryan, Trump, Mitch McConnell, and others wish to rid our country of that pernicious Affordable Care Act.

Real Americans I know have taken their six-year-old trick-or-treating. Real Americans I know have at least tried to carve a Jack-O-Lantern with their kids. And Donald J. Trump?

Opinionated

(Guest post from the Spouse)

Recently, visiting a group of friends, I mentioned that I thought one of our other friends (who was absent) was “opinionated.” A collective smirk went around the room. And then someone said (jocularly, but kindly), “And you are NOT opinionated?!?” This surprised me as I have never thought of myself as “opinionated,” and I said as much. Scoff, scoff. Smirk, smirk. Hmmm…. So I started thinking more about what I meant by the term “opinionated.”

Opinionated to me does not mean “stuck in one’s habits.” If one routinely has morning coffee at 8:50 and takes a walk at 9:30 and doesn’t like those habits interrupted, that is not being “opinionated,” that’s being an old fuddy duddy who doesn’t like her routines disturbed. Irritating enough, but not falling within the realm of “opinion.”

I realized that by “opinionated,” I meant “firmly entrenched in an idea for which one has no evidence.” In its worst examples: X holds the “opinion” that the majority of black men are dead-beats who run out on their families, deal drugs, and mug white women on a regular basis. Data? No. Y says that such a stereotype is unfair and biased. Data? Yes. X holds the “opinion” that Covid-19 is a hoax; Y says that the evidence supports an alternative narrative. In both instances, I find X is “opinionated” while Y has opinions, but they are based on data. One further example: I have no trouble holding the “opinion” that our current president is a threat to democracy and civic order. Given world enough and time (see Marvell, below), I can point to at least 421 million cogent reasons why this is so.

And so it is that well-meaning people can agree (I hope) on the need for certain sorts of “opinions” to be backed up by evidence.

However, this sort of fact-based reasoning becomes more nebulous in the realm of art. Chacun à son goût, and all that, but I believe…let me rephrase that…it is my opinion (the source of which is obscure to me, though see footnote*) that a literate person should make an effort to enunciate a reason for their goût. I like to think that my “opinions” on such matters are grounded in something that is akin to evidence (it’s “in the text” or, less convincing, “the author has said so in interviews”). However, pin-pointing/articulating such evidence is often a subjective exercise based on comparisons to past reading experiences and to the emotions elicited by them. Art, after all, is not a science. You say passage X is lyrical, beautifully descriptive, and moving. I say it is prosaic, pretentious, and off-putting. It’s the same passage! How can we read it so differently? Which one of us is “opinionated”? Which one of us is accurate?

Many who have grappled with the definition of “art” have fallen back on the  explanation that “art” is whatever survives the test of time. Fine for Greek temples, Beethoven, Rembrandt, and certain English novels of the 19th century, but what are we to make of  last Sunday’s New York Times Book Review? Many of us fall back on the collective opinions of others (The National Book Award committee, Michiko Kakutani, and Reese Witherspoon can’t be wrong, can they?). But aren’t our own educated opinions as good as theirs?

Perhaps it’s okay for us to have different opinions about “art.” It’s certainly okay if each of us experiences the world differently. But I see that it’s not okay for me to experience the world in so different a manner that I cannot empathize with another’s point of view…

however wrong it may be.

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* When I was a junior in college – and a newly-minted English major – I took a seminar on the Metaphysical Poets (Donne, Hebert, Marvell, etc.). It was well beyond my reading sophistication, but I needed some English lit credits. We were asked to write an essay on (I think) Marvell’s poem “To His Coy Mistress.” To me it was banal; it sounded like a flowery Hallmark card, and I had the temerity to write as much. It was stupid on so many fronts that it’s almost hard to write about it. When the professor called me in to talk about the generous “C” I got on the paper, he basically said I didn’t know how to read, and he was right. My reading experience had been too meager to appreciate the subtleties and ironic joys of Marvell’s poem. I am happy to say that now, after an additional 50 years of reading, I experience the poem with delight. However, that “teachable moment” taught me that sometimes someone’s (including my own) goût is totally misguided.


Snippets

I went to the doctor for a flu shot. When I made the appointment, I also said that I was concerned about shortness of breath. When I saw the doctor, I also told him that I had what is commonly know as “trigger finger” and about a recurrent pain that might be sciatica. Then the doctor said that he called this a “manly” visit. A woman, he said, would have come to him separately for each issue when it arose. The man, instead, decides to get a flu shot and then thinks, “I am going to the doctor. What else should I ask him about?”

One fury has God found inexpungeable:

The wrath of a woman who finds herself fungible.

                    William Espy

Donald J. Trump does not have a pet, but there must be a professional dog trainer in the White House. Mike Pence responds to the command “Heel!” better than any hound I have ever seen.

There were four million people in the Colonies, and we had Jefferson and Paine and Franklin. Now we have over three-hundred million and we have Trump and Pence. What wisdom can you draw from that? Darwin was wrong.

If ignorance is bliss, why does Trump seem so angry and unhappy?

Does this story have applicability today? A woman supposedly said to John Maynard Keynes that she wondered what David Lloyd George was like when he was alone in a room.  Keynes responded, “When Lloyd George is alone, there is no one there.”

Perhaps this phrase ascribed to a soldier in Iraq applies to our country today: “So screwed up it was like pasting feathers together, hoping for a duck.”

Pat Paulson, when he “ran” for President said, “Issues have no place in politics.  They only confuse matters.” I wonder, however, if he would still say, “The current system is rigged so that only the majority can seize control.”

The license plate holder on a nice-looking Genesis registered in Florida said: “Beautiful” Naples, Florida. I wondered about the quotation marks. Is it ironic or facetious to call Naples “beautiful?”

“If at first you don’t succeed, destroy all evidence that you tried.” Newt Heilcher

“If at first you don’t succeed, try, try again. Then quit. No use being a damn fool about it.” W.C. Fields

I am trying to expand my vocabulary, so I am going around saying, “The president’s rodomontade is rebarbative.”

“It’s better to keep one’s mouth shut and be thought a fool than open it and resolve all doubt.” Abraham Lincoln

Let’s Get Women Off the Supreme Court

Dear Loyal Readers Who Noticed That I Did Not Keep My Usual Posting Schedule Last Week,

Last Monday I posted a longer than ordinary essay about the Supreme Court nomination of Amy Coney Barrett. Because of its length, I had planned to skip my usual Wednesday post and resume this blog on Friday, but that day passed, too, barren of my wit and wisdom. You might assume that that was because I was so wrapped up in the Senate hearings that I did not get to the keyboard. I wish that were so, but instead, some health issues had me in doctors’ offices where lasers zapped my eyes and other machines found additional problems with this aged body. In what was meant to be reassuring, the doctor said that the new problems were “repairable,” and the repair strategy, which apparently does not require the copious use of duct tape, is under way, but it all took up some of my time.

Even so, I still had many moments when I could have watched the hearings. Mostly I avoided them expecting them to be as predictable as the Perry Mason reruns on ME TV, and I gather the Senate proceedings held few, if any, surprises. In the half hour I did watch, Barrett stated that her constitutional philosophy was not to place her own values into the Constitution or to seek the original intent of those who drafted the Constitution but, as other conservative judges now say, to apply the original public meaning of the document’s words. The Constitution, she said, does not evolve but, apparently, remains frozen in the eighteenth century. To her this is necessary so that judges will be neutral and not constitutionalize their individual values and views. (I have previously discussed this thinking on this blog in “We, the People of the United States,” posted July 26, 2018, and “Originally It Was Not Originalism,” posted August 22, 2018.)

Although I did not hear her use it, her explanation reminded me of Chief Justice John Roberts’s oft-mocked metaphor that judges should be mere umpires keeping their personal predilections at bay. The contention is that judging can and should be mechanistic. Moreover, rulings that use the standard of original public meaning are desirable because such meaning can be objectively determined

My mind went whirring into the future. Twenty years from now our president is Phillip K. Dick III, a sports fan. He notes in 2040 that tennis matches have long abandoned human officials for line calls using machines instead. Baseball now registers ball and strikes without a human umpire, and footballs have chips implanted so that forward progress at the end of each play can be automatically recorded without the rather slapdash procedures of line or side judges in days of yore. Referees and umpires have moved beyond human judgments, and Dick remembers John Roberts’s words that Supreme Court judges should be like umpires. (Roberts, a mere eighty-five, is entering his thirty-fifth year of Court service.) Therefore, when Stephen Breyer dies at the age of 102 after forty-six years of service as an Associate Justice, Dick nominates a computer — which has had the Constitution, all court decisions, all dictionaries, all necessary history, and anything else that could be relevant to court decisions placed in its memory and which has been programmed to make decisions using these materials — to fill the Supreme Court vacancy. President Dick states that this will eliminate the dangerous human element from constitutional interpretation. Arnold, this device’s name, is ready to take the “seat,” but a cry goes up that Dick cannot do this. The Constitution does not allow the president to appoint non-humans to the highest court. (My imagination cannot discern the source of the cries, but presumably they don’t come from the conservative wing of the Supreme Court, consisting of Clarence Thomas at the age of 92, Samuel Alito at 90, Brett Kavanaugh at 75, Neil Gorsuch at 73, and Amy Coney Barrett at a spry 68, who all claim that they mechanically interpret the fundamental laws without invasion of human emotions.) References to Caligula are made, but a horse is a horse, of course, and Incitatus was never actually made a consul but merely a priest. This is the United States Supreme Court, Dick says, and is different. Human judgement should be removed from judging as the conservatives maintain. Justice Arnold could make decisions without emotions and biases and, therefore, is better suited for the Court than any mere human.

The humans pull out their vest-pocket-sized Constitutions and flip pages to find the controlling text: The president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme  Court. . . .” (We seldom notice that the Constitution does not give the president the power to appoint Supreme Court judges. The president nominates and with the Senate appoints them. The president and the Senate jointly appoint the Supreme Court.)

All sorts of linguistic tools have emerged that can be used to show how words were used in the constitutional era, but I have only bothered to look at Noah Webster’s dictionary, the compilation of which started much earlier but was first published in 1828. It says that a “judge” is a “civil officer who is invested to hear and determine” civil or criminal causes. Webster defines an “officer” as a “person commissioned or authorized to perform any public duty.” There we have it. A person. With the original public meaning, a judge in the constitutional sense is a person, and Arnold is out. (Of course, much modern constitutional law depends on the legal fiction that a corporation is a person, but that is a story for another day.)

But now the original public meaningers look a little further. Webster states that a judge is a civil officer who decides causes “according to his commission.” His. Does this word include both men and women? Not according to Webster, who defines “his” as the “possessive of he,” not “he or she.” By this analysis, a judge within the meaning of the constitution is not only a person, but a male person with a commission. People now realize that the original public meaning of “judge” in the Constitution means a man. A third of the Supreme Court must go.

Of course, the framing generation could not have meant a non-human as a Supreme Court judge. Cyborgs were not on their radar (and, of course, radar was not on their radar in 1789.) But neither was a female judge. That generation did not consciously reject women as judges; the possibility, as with non-humans, never occurred to them. Lawyers were men, and so were judges. (Some Framers may have thought of that woman lawyer, Portia, but surely they knew that in The Merchant of Venice the lying Portia came disguised as a man, Balthazar, claiming, without basis, to be a “doctor of law.”)

The original public meaning of judge in the Constitution meant a man. Shouldn’t the conservatives on the Supreme Court today read the word as it was meant in 1789?

To Save Your Soul

John F. Kennedy’s watershed speech to the Greater Houston Ministerial Association in September 1960 still reverberates. Kennedy, of course, was a Catholic, and a group of Protestant ministers that election year had promised to “oppose with all powers at our command, the election of a Catholic to the Presidency of the United States.” Norman Vincent Peale, one of the most revered clergymen in the country, headed another religious group that stated that the Catholic Church was a “political as well as a religious organization” that had frequently repudiated the sacred principle “that every man shall be free to follow the dictates of his conscience in religious matters.” Protestants and Other Americans United for the Separation of Church and State stated that it could not avoid the “fact that one church in the U.S., the largest church operating on American soil, officially supports a world-wide policy of partial union of church and state where it has the power to enforce such a policy.”

 In his masterful Houston speech, Kennedy responded:

I believe in an America where the separation of church and state is absolute, where no Catholic prelate would tell the president (should he be Catholic) how to act, and no Protestant minister would tell his parishioners for whom to vote; where no church or church school is granted any public funds or political preference; and where no man is denied public office merely because his religion differs from the president who might appoint him or the people who might elect him.

I believe in an America that is officially neither Catholic, Protestant nor Jewish; where no public official either requests or accepts instructions on public policy from the Pope, the National Council of Churches or any other ecclesiastical source; where no religious body seeks to impose its will directly or indirectly upon the general populace or the public acts of its officials; and where religious liberty is so indivisible that an act against one church is treated as an act against all. . . .

Whatever issue may come before me as president — on birth control, divorce, censorship, gambling or any other subject — I will make my decision in accordance with these views, in accordance with what my conscience tells me to be the national interest, and without regard to outside religious pressures or dictates. And no power or threat of punishment could cause me to decide otherwise.

But if the time should ever come — and I do not concede any conflict to be even remotely possible — when my office would require me to either violate my conscience or violate the national interest, then I would resign the office; and I hope any conscientious public servant would do the same.

Kennedy’s speech defused his “Catholic issue,” helped him win the election, and has had a lasting effect. Mainstream figures no longer question a Catholic’s fitness for the presidency. I don’t remember John Kerry’s religion being raised in a negative way at all when he ran for President, and although Trump may have suggested that Joe Biden is somehow bad for the religious, voters don’t seem to be for or against the former Vice President because he is a Catholic. Indeed, we have gone further. Polite political society tends to eschew any questions about how an office seeker’s religious beliefs might affect his governmental performance. (For example, there was little discussion of Mitt Romney’s Mormonism.) Even if, however, this is generally a good thing, there are times that we should drop this political correctness.

Perhaps the most significant development from Kennedy’s speech has been on the Supreme Court. We have not elected another Catholic as President, but the highest court, which for generations had but one Roman Catholic, now has six Catholics out of the eight justices. The conservative bloc of five are all Catholic men: John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, and Amy Coney Barrett, also a Catholic, if confirmed, is expected to join those five men on the conservative wing of the Court. (On the liberal side, Sonia Sotomayor is also Catholic.) This Catholic domination of our highest court draws only a few comments as has the waning of white Anglo-Saxon Protestants on the judiciary, but, of course, it was once much different. Aristide R. Zolberg in A Nation by Design: Immigration Policy in the Fashioning of America (2008) reports that of the federal judges appointed by Harding, Coolidge, and Hoover, 170 were Protestant, 8 Catholic, and 8 Jewish. (Change came with FDR. Over a quarter of his judicial appointments were Catholic.)

 JFK, who attended public schools, maintained that his religious views were irrelevant in his quest for the White House. In that 1960 Houston speech, he stated, “I am not the Catholic candidate for president. I am the Democratic Party’s candidate for president, who happens to be Catholic.” Even so, Protestant evangelicals opposed Kennedy. His speech may have diffused some anti-Catholic animus, but the evangelicals sixty years ago were still more than a little suspicious of a Catholic president.

The world is different today. Evangelicals today enthusiastically support Amy Coney Barrett. Their support is not in spite of her Catholicism but because of it. They assume that her religious background foretells constitutional and statutory interpretations that evangelicals and other conservatives want. Ads supporting Barrett’s nomination highlight that she is “grounded in faith” and is a “proud Christian.” What is widely reported to be her deep devotion to her religion is part of the reason she was nominated and is given as a reason she should be confirmed.

I expect, however, that she will maintain that her decisions will only be what the law and Constitution require and not because of her religion. She will in effect make a JFK-like pledge to be a secular justice in spite of what those ads and her supporters hint at. Conservatives will fulminate at any mention of religion in the confirmation hearing and suggest that questions that touch on her Catholicism would be an attack on religion that are un-American in our tolerant country. But there are questions that should be asked, and they are not an attack on religion. If, for example, a judicial candidate held a million dollars of stock in IBM, a Senator should be concerned about whether these holdings might affect the candidate’s potential decisions if IBM was a litigant before the court. Such Senatorial questions would not be an attack on the stock holding but a question about a potential conflict of interest.

Money, which can cause conflicts for judges, is a relatively trivial matter compared to concerns for devout Christians such as Barrett about immortal souls and eternal damnation. I am not a Catholic theologian, but my understanding is that the Catholic church maintains that abortion is a mortal sin, brings automatic excommunication, and, if unrepented, results in eternal damnation upon the sinner. In our country of the free exercise of religion, Barrett is entitled to those beliefs and no government official should criticize her for them. On the other hand, it is fair to ask whether those religious views would affect her secular job of being a Supreme Court Justice. Of course, state restrictions on abortions and even whether Roe v. Wade should stand may come to the court. Would Barrett be enabling others to commit a mortal sin if she believed that a pro-choice outcome was the correct legal decision? Would she herself be committing a sin by making a legal decision that goes against Church doctrine? Would she believe that she is putting her soul in jeopardy? I don’t know if the Church has ever denied sacraments to a judge because of judicial rulings, but at least some powerful Church officials have said that legislators who support pro-choice positions should be denied mass, an essential sacrament for a Roman Catholic. (Some church officials have aimed more widely than just at legislators. Last week a news story from La Crosse, Wisconsin, reported, “At St. James the Less, where the faithful eschewed masks, the Rev. James Altman denounced the Democrats. ‘You cannot be Catholic and be a Democrat, period,’ he said in a YouTube Video.”)

          Such questions are not attacking her religious beliefs but inquiring about impartiality. Can you be impartial in your judicial rulings if by your beliefs you are putting the immortal souls of others, and perhaps your own, in jeopardy? (Of course, such questions would be appropriate about issues other than Roe v. Wade and might also be asked about artificial contraception and LBGTQ rights.) And the real issue is not just impartiality, but the appearance of impartiality. A federal statute states, “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The judge must not just convince herself that she is impartial, she must appear to be impartial to others.

          Barrett co-authored a law review article in 1998 that is relevant for her confirmation. She considered that our Constitution permits capital punishment but that the Catholic church finds the death penalty immoral, placing Catholic judges in a moral and legal bind. The abstract to the article states that “litigants and the general public are entitled to impartial justice, which may be something a judge who is heedful of ecclesiastical pronouncements cannot dispense. .  . . While mere identification of a judge as Catholic is not sufficient reason for recusal under federal law, the authors suggest that the moral impossibility of enforcing capital punishment in such cases as sentencing, enforcing jury recommendations, and affirming are in fact reasons for not participating.” The secular law may authorize a death sentence, but Barrett suggests that a Catholic judge cannot impose capital punishment and goes on to maintain that a Catholic judge should recuse herself in the death penalty.

          The law review article was about the death penalty, but it seems to be an illustration of a broader position. If a Catholic judge has to choose between the law and moral strictures as laid down by the Church, the Catholic judge must take the moral road. However, that judge can avoid the dilemma through recusal.  The judge must remove herself from a case that presents such a conflict.

          Barrett, however, might think that there is no dilemma for her when it comes to abortion. She may believe that the Constitution does not protect a woman’s right to choose, a defensible position, and therefore conclude that there is no conflict between the law and her Catholic faith. But the litigants and public are entitled not only to impartial justice but also to the appearance of impartial justice. Just as a judge may sincerely maintain that his decision favoring IBM was impartial, others may think that his stock in IBM at least subconsciously affected the decision. There are reasons to question his impartiality. Barrett may sincerely maintain that she is being impartial in finding no constitutional right protecting abortion, but others will think that her faith affected her judgment at least subconsciously.

          The Senate Judiciary Committee should explore these issues with Amy Coney Barrett. Unless Barrett addresses them in a convincing manner, her intellectual integrity will be suspect, and that is neither good for her nor the Supreme Court.

The dilemma for the Catholic Supreme Court Justice between the law and the Catholic faith on morality does not mean that Barrett’s nomination to the Supreme Court should be rejected. A judge is different from a president. John F. Kennedy pledged that if his presidential duties conflicted with his religious conscience, he would resign the presidency. A president, however, does not have the ability to avoid issues through a recusal. A Supreme Court Justice, however, can avoid having to make decisions when there is an apparent conflict between her religious and secular duties, as there is for a Catholic judge in death penalty cases.

The Senate should be asking Barrett to pledge that when she believes that a legal decision might put her soul or the souls of others in mortal jeopardy, she will recuse herself. This would not be an attack on religion, but an attempt to secure the impartiality and the appearance of impartiality of our Supreme Court.

I can hear you saying, “But the other judges were not asked to make such a pledge.” And I answer, “They should have been.”

Resurrecting a Modest, Radical Proposal to Make Our Democracy Great Again (MOGDA)

I had a good idea. It would not be terribly difficult to do. It would cost almost nothing. It would make our country better. But then I thought more about this good idea. It was not so good. It could make things worse. However, I am not ready to give up my idea completely. There might be a useful germ in it, but I don’t know how to crack the nut open to get it out. Perhaps you can. My idea has to do with the census, voting, and federal aid.

States have an incentive to have every one of its residents counted in the census. The census determines how many Representatives a state will have in the House of Representatives. The greater the population of a state, the greater the number of votes it has in Congress. Both the majority and minority parties in a state have a good reason for everyone to be counted so that the state has as much power in Congress as possible.

The census is also used by the federal government in another way. Various statutes apportion funds states get from the national government by using census numbers. The greater the population in a state, the more federal aid it gets. This, too, gives a state an incentive to have everyone in its borders counted.

In contrast, we all have an incentive to decrease the number of voters. If ten people vote in an election, each holds one-tenth of the electoral power. If, however, only nine people vote, each of those nine voters has a little more power than before. Each voter becomes more influential when others don’t or can’t cast a ballot.

This dynamic is true no matter what the voter’s political persuasion, but the incentives to suppress the votes of those who have different political interests from you is even greater. Perhaps the first rule of politics is that those in power seek to remain in power. One way to do that is to discourage voting by those not in your party. Of course, the Buncombe First party cannot simply prohibit votes for the Buncombe Forever party, but if Buncombe First believes that legislation making it harder to vote will more likely keep Foreverites from voting than Firsters, the Buncombe First party has an incentive to enact such requirements. Of course, such voter suppression makes our country less democratic.

States have an incentive to have all who live there counted, but those who don’t really trust majoritarian rule have an incentive to suppress the votes of some. If they can target voter suppression, they stay in power and don’t lose Representatives or federal funds.

However, I thought, what if we allocated federal moneys not by census numbers but instead by the numbers who voted in each state in the last presidential election? Then states would have an incentive to get out the vote. A state would pay a price for restrictive voter identification laws, insufficient polling places, difficult registration requirements, and the like. The controlling party in a state would have to decide if the loss of federal funds was worth voter suppression measures. For a few moments, I thought allocating federal funds on the number of voters in a state was an idea worth pursuing in order to make the country more democratic.

Then, however, I was struck by an uncomfortable reality. Non-citizens and children, although counted in the census, cannot vote. States with more immigrants and kids would be penalized under my proposal compared to the present methods. If two states each had one million population according to the census, they would now be treated equally under the present allocation formulas, but if State of Fredonia had 100,000 non-citizens while State of Buncombe had only 25,000, Buncombe would have a larger voting base. Even if both states took exactly the same steps to have as many people vote as possible and even if the same percentage of the voting eligible population in each state did vote, Buncombe would get more federal funds than Fredonia. That would not be fair.

With this new insight, I abandoned my modest, radical proposal, but it keeps gnawing at me. There ought to be a way to use the numbers or percentages who vote in each state to allocate federal funds, encouraging the spread of this democracy we claim to love. Aha, I said, “My readers. They have to be smart, creative people or else they would not read this blog (and, of course, they are good looking, too.) Maybe they can find a way to do it.”

So readers, what about it?  If you can think of a way to incentivize the states to make voting easier, more universal, and thereby Make Our Democracy Great Again, let me know. Then I will trademark MODGA and sell appropriate apparel. The prices will be fair, but this being America, a profit for me will be built in. If the clothing becomes as trendy as I expect, perhaps I will be able to retire.

Fund the Police . . . And Others, Too (concluded)

When police actions go bad, we shout, “Reform the police.” “Defund the police.” But we should be looking at ourselves. We proclaim that we are the richest and most powerful country in the world, but we the people refuse to spend the money to make things better. We are more concerned with taxes than with the public welfare. It isn’t just on the police; it is also on us.

We should have police reforms. We should have better screening of those who become an officer. We should have a national database of problem cops who sometimes now go from one police force to another without information available about their past performance. We should have better training for the police especially on how to restrain potentially violent people. We need better discipline of the police. We need a reconsideration of qualified immunity. But many of these steps require funding, and we don’t want to provide it.

A seemingly simple reform would be to require body cams. Studies have shown police behave better if they know they are being videoed, but these cameras also help the police. Charges of abuse were lodged against an officer in a small Pennsylvania department recently, but he was wearing a body cam, and the video of the incident exonerated him. Both the police and the general public have a stake in police body cams.

At the police forum I recently attended, a police chief said that he welcomed body cams, but he pointed out that not only does it take money to get the equipment, it takes a computer technician to maintain, store, and review the results. The police chief did not have money for a technician to maintain his current computer equipment. He certainly had no money in his budget for the support needed for body cams even if he had money to obtain the cameras themselves. I repeat; that shortfall is on us, not on the police.

But something more is on us. Ta-Nehisi Coates writes a letter to his son in Between the World and Me and says, “But you are a black boy, and you must be responsible for your body in a way that other boys cannot know. Indeed, you must be responsible for the worst actions of other black bodies, which, somehow, will always be assigned to you. And you must be responsible for the bodies of the powerful—the policeman who cracks you with a nightstick will quickly find his excuse in your furtive moments.”

Coates is speaking to a sad reality. We are too often unable to fully see blacks as individuals; instead we see them as a member of group. The tendency then is to assume that the worst actions of one of them applies to all of them. This gets ingrained in the subconscious, including the subconscious of police officers. A split skull and much worse too often results.

We do something similar to the police. Although there are thousands, perhaps hundreds of thousands, of interactions between the police and the rest of us each day, we see on the news, the internet, and social media the worst actions by individual officers; we don’t see the professional, useful, helpful encounters. We make all police officers responsible for those racist, brutal, incompetent police behaviors committed by some of them. And so we tend to lump all police together — the good ones and the bad ones. And the natural reaction is for police officers to hunker down in their tribe and separate themselves from the rest of us. This only exacerbates the problem.

The police may need to change attitudes and practices, but we also need to change our attitudes towards the police. We can’t just view police officers as the evil “other.” Recently I taught a seminar at an Ivy League university entitled “Race, Poverty, and Criminal Justice.” Not surprisingly in a course with that title, almost all of the liberal-minded students were anti-police. They would speak at length – and with too little data — of how bad the police and police departments are. I asked if any of them would consider becoming a police officer. They had looks of horror as if we were inside a chainsaw-massacre-movie. They not only could not imagine being an officer, they could not even imagine that a “normal” person would want to be one. The police were completely “other.”

That is a problem for all of us.

Fund the Police . . . And Others, Too (continued)

Police brutality was on my radar a generation or two ago when I was defending criminal cases. Some defendants when first appearing in court would have fresh blood, ugly bruises, cuts, or contusions on their bodies. They would tell me that officers beat them up for no reason. When we would appear in court, I would list for the public record the injuries and marks on the defendant. The prosecutor gave the uniform reply that these injuries came when the defendant resisted the officers’ lawful, peaceful arrest, and the charges the defendant faced in these circumstances always included a count of resisting arrest. Back then, neither prosecutors, judges, nor police commanders seemed to care a whit about allegations of excessive force. My organization did what the police and prosecutors should have been doing: we started keeping records of the officers who were involved in the beatings to see if we could identify problem cops. I was part of a unit that sued officers for excessive force and tried to collect damages for those beaten up with the hope that the police department would discipline some notorious officers. I confess that we weren’t successful.

Smartphones with cameras and body and dashboard cams have made a dent in this world. Sometimes now we have a video of the encounter. It is no longer just a defendant’s or bystander’s word against that of a police officer. With increasing recorded visual evidence, at least some of the time, a claim of needless or excessive force is taken more seriously today.

So, yes, police sometimes lie, misrepresent evidence, and sometimes use unnecessary force. Even so, we need the police. Besides my muggings—the spouse, too, has been mugged—I have been the victim of a considerable number of crimes—cars, car batteries, car radios, and bikes have been stolen, and the house has been burglarized more than once. The police I have dealt with as a result have been professional and helpful. My world would not be better without police. One day two officers rang my doorbell. They said that they had heard a loud bang from my house and wanted to make sure everything was all right. The adjoining building, once a hospital, was being gutted by a Catholic charity in order to turn it into housing. What the police had heard was from the demolition next door, but I was grateful for the officers’ concern and attention. There are many problems with individual police officers and with police as an institution, but there are many, perhaps most, cops who do want to serve and protect.

Thrown about now is the poorly chosen phrase “defund the police.” The term seems to have different meanings to different people. Its most sensible use seeks to shift funds away from the police to other agencies who might better deal with certain problems. So, e.g., have you or someone you know ever called the cops? The possibilities seem endless. Loud party next door; call the police. Screams in the night; call the police. Reckless driving; call the police. Dead dog in the street; call the police. Shots fired; call the police. Money short in the till; call the police. Men shoving each other on the corner; call the police. Furtive exchange of money for (possible) drugs; call the police. Baseball through the window; call the police. Scantily clad women hanging around; call the police. Tricked out of some money; call the police. Someone overdosed; call the police. Untaxed cigarettes for sale; call for the police (after buying a carton?). People not wearing face masks; call the police. Could any single person or organization be trained and competent to handle all that we ask of the police?

Here’s a personal example. My nonbinary progeny was on the subway when a disheveled man for no reason socked her in the jaw. (The NBP was incredibly proud of taking the blow without being knocked down.) He got off the train at the next stop. People followed him and found a police officer who took him into custody. He was mentally ill. A high percentage of the people who the police interact with are mentally ill or otherwise have a mental disability. P.S. the police took the NBP to the station and someone waited with them until the spouse could come to take them home.

The police are not the obvious organization to deal with the mentally ill or disabled. It seems sensible to have psychiatric social workers or similar people responding in these situations, but it is not that simple. A call comes in and says, “My son is threatening me with a knife.” That son might have a mental illness, but who should respond to a potentially violent situation such as this? Perhaps the best answer is that both a well-trained police officer and a well-trained social worker should. But that is not accomplished by shifting money from the police to a social welfare agency. Instead we need more money for the psychiatric social workers. We need more funds, not just a shift in budgets.

I attended a forum with police representatives and the community in a northeast Pennsylvania county. A police chief said that she would welcome the assistance of social workers for many of the calls her department responded to, but she also said that her budget had been cut over the last fifteen years as had been the money for social welfare agencies. Psychiatric social workers were not available for all the times that they could be useful. The only available responders to the mentally ill (and to the homeless, to the drunk on the corner, etc. etc.) would come from the increasingly strapped police and the overwhelmed court system. When I worked recently in a Florida public defender’s office, the head of the office told me, “We have a mental health facility here; It’s called the county jail.” And that is it how it is handled throughout much of this country.

(concluded October 8)