SUPREME COURT SHENANIGANS EXPLAINED BY JAMIN RASKIN

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Yes, I'm plogging along and this time I've stumbled upon a clever attorney called Jamin Raskin who is now my hero.  This man is a champion for minorities, a champion of the people and I’m pretty sure if you met him at a bar one night he’d be an overall great guy.  He was a former Massachusetts’ Assistant Attorney General and editor of The Harvard Law Review, so don’t bet against him in a pub quiz on constitutional law.  

In the United States the Supreme Court is the final interpreter of the Constitution, which means if it finds that a law passed by Congress is in breach of the Constitution, the Supreme Court has the power to throw it out.  Until Justice Scalia died earlier this year the Supreme Court enjoyed a conservative majority for 45 years.  In the 15 years before this book was published (2004) it threw out a higher than normal amount of the legislation passed by Congress which included good stuff like the Gun-Free School Zones Act; the Violence Against Women Act and the Low-Level Radioactive Waste Policy Act.  It did so while often citing justifications that ranged from shaky to “ok so I just made this up.”

Raskin’s prose boils down some critical ways in which our political system is broken and how to fix it, so that’s got to be worth a read.  As usual I took the “long and boring” out of the book by picking out what I considered the most salient.  All items in italics in this article correspond to a particular lawsuit.  The United States has a “common law” system, which it inherited from Britain.  In a common law system attorneys are allowed to cite any previous ruling (called a precedent) as a basis to the actions of any of their lawsuits.  For this reason anything a judge rules essentially changes the law from that point onward.

Are you excited?  Here goes!

Overruling Democracy by Jamin Raskin

The Political Supreme Court

Raskin starts out by blitzing the intellectual integrity of the Supreme Court, which he claims has "failed to live up to neutrality obligations” and has "seen aggressive judicial activism based on the political [biased] preferences of the justices [a.k.a. judges.]"  These justices have struck down several laws passed by Congress especially those "expanding rights or advancing social and environmental agendas."  In the first two hundred years since the Constitution was first instituted the Supreme Court struck down 127 federal laws.  In the fifteen year period between 1987, (when William Rehnquist took over as chief justice) and 2002 it struck down 33!

Professor William P. Marshall of the University of North Carolina School of Law shows “the conservative justices [of the Supreme Court in the years preceding this book’s publication] have failed to defer to the decisions of elected branches, repeatedly betrayed a doctrine of strict textualism or the [Constitution] framer’s “original intent,” have not even pretended to defer to case precedent, refused to conform to jurisdictional limitations and the court’s power, spontaneously invented new constitutional rights and theories.. and used judicial power to accomplish partisan [biased/political] objectives.” 

In the prose that follows you will learn about the cases in which Raskin claims the Supreme Court has damaged democracy.  In different instances it has propped up the two-party system; granted free speech to corporations; declared that education is not a constitutional right; legalized arrangements that select white leaders and in 2000 it became the first United States court to decide a presidential election.

“Wow!  Really?” – I hear you gasp.  Read on to decide for yourselves my lovelies.

The Supreme Court gives the 2000 election to George W. Bush.

When the Supreme Court gave the election to George Bush in 2000 (which is something the court has never done before) by overruling and thus halting a manual recount ordered by the Florida Supreme Court, the reason given by the court was there was no time to decide upon a standard recount procedure.  Since the poorest voters have the worst voting machines and the highest rate of damaged voting cards, ordering a manual recount would certainly have helped Bush’s opponent and the conservative majority of the Supreme Court knew it.

Notably, in their opinion the judges stated, "individuals have no federal constitutional right to vote."  This statement leaves the system open to manipulation.  Old tricks to prevent votes from being recorded correctly surfaced in a later lawsuit that went into what went wrong in Florida.  Poll workers were found to have been illegally insisting that African Americans produce two forms of ID; polling places were mysteriously changed and incompetent poll attendants were hired.  In its opinion the Supreme Court also stated "the state legislature may select the electors itself."  This means the state can decide which president to vote for without the public’s participation.  Based on the Constitution, which was a document created when most people could not vote, this is true.  But that is a technicality in today’s world.  Every citizen of the United States expects to be able to vote (unless disqualified - like a felon) and the United States presents itself as a democracy to the whole world. Universal suffrage, which means one person one vote, is a fundamental feature of democracy.  In other words in their ruling in 2000 the judges of the Supreme Court shamelessly stated that the United States is not a democracy.  Without writing one person one vote into the Constitution millions are disenfranchised (or excluded from the right to vote) every election.  A study by CIT and MIT determined 6 of the 100 million votes went uncounted in the presidential election of 2000!

The vast majority of states have rejected the act of disenfranchising ex-felons for life.  In Florida when Bush won the presidency by under 500 votes, 200,000 ex-felons were not allowed to vote!  Political estrangement for those who have served their time does not permit full rehabilitation.  Our author suggests we enfranchise ex-felons in every state.

125 nations around the world now guarantee all citizens the right to vote following America’s (ersatz) example of democracy whilst the United States does not.  There are only 15 countries left in the world that, like the US, have refused to commit to universal suffrage.  This is an affront to international law and the universal declaration of human rights of 1948 which states “everyone has the right to take part in the government of his country.”

Solution: Raskin proposes an amendment to the Constitution, which grants all citizens the right to vote unless disqualified and the right to run for office on an equal basis.  This would force the government to update old voting machines that make mistakes.

The Electoral College system should be abolished

Bush vs Gore was a "trademark judicial intervention against popular democracy: deeply partisan, racially inflected and.. unmoored from.. legal doctrine.” Al Gore beat Bush by 500,000 votes and lost by 6 electoral votes.  From Wikipedia: “The United States Electoral College is the institution that elects the President and the Vice President every four years.  Citizens of the United States do not directly elect the President or the Vice President, instead they elect representatives called "electors,” who usually pledge to vote for particular Presidential and Vice Presidential candidates [but are not obliged to vote for the people's choice of President or VP.]”  Raskin recommends abolishing the Electoral College because he argues it defies the sovereignty (or power) of the individual.  It is futile to have one person per vote if each person's vote does not count equally. The Electoral College system is part of the Constitution and part of the problem is that the Constitution was not written in a perfectly democratic way.  48 states do a winner-take-all election where a candidate that has a majority of the votes in a state can win all of the electors in the state and the voices of all the people that did not vote for the winner are dismissed.  This reduces a citizen’s incentive to vote.  Because Florida’s election is usually competitive, they saw voting turnout of 70% whilst the national average was 47% in 2000 putting the US behind every major democracy on earth!  You might be also be surprised to hear that the government provides no official count for the vote for the President.  The people are dependent on precinct returns, exit interviews and polling!

Solution: The author recommends direct national majority rule, which would mean every person's vote has equal value.  We also need a national ballot based on a national election with a national system for reporting the tally.  The ballot is the piece of paper with names on it that you complete and submit on election day.  Right now ballots have a different selection of presidential candidates on them depending on your location around the country.

The drawing of voting districts to meet the political desires of elected leaders (a.k.a. gerrymandering) and how this has been used to advance white rule

"After the 2000 census and redistricting process, fewer than 50 out of 435 house seats are truly competitive."  The economist called redistricting a "glorified incumbent-protection racket."  An incumbent is the elected leader who in currently in office.  Redistricting is the process of drawing electoral district boundaries.  For part of our history members of the house were elected on a statewide basis.  "Single-member districts were not made a federal requirement until the 1960s."

The fact that 98% of African Americans were we're off the voter rolls in Mississippi which was two thirds black was part of the injustice that led to the voting rights act of 1965 which abolished suffrage like the literacy test, the character exam and a constitutional law quiz.  In 1982 amendments to that same act meant that redrawing districts to systematically dilute the back vote was illegal.  As a result by 1990 African members of Congress grew from 26 to 39 and Latino members of Congress grew from 13 to 18.

The backlash to this from conservatives was a 1993 suit in North Carolina resulting in a racist ruling stating, "any districts with nonwhite majorities must not have a bizarre perimeter."  The author goes on to illustrate the perimeter of nonwhite majority districts, which were disallowed based on this rule and compares them to white majority districts, which were allowed, to demonstrate both types had an equivalent amount of "bizarreness.”  In the past the court “found it permissible to redistrict with the intent of protecting “incumbents from contests with each other.””  It is a far greater affront to democratic principles to build a congressional district to protect a politician’s career than it is to shape a district to enable a long excluded racial group to have elected representation.

"The solution is to [end] single-member districts and move to the at-large proportional-representation electoral systems used by democracies around the world."  This means if a group has a certain percentage of the total vote within a state they would have a proportional amount of representatives in Congress.


The two-party system, the damage it does to democracy and the “signature gathering obsession.”

“The court upholds laws that discriminate against third parties by keeping their candidates off the ballot, out of debates and off the public’s radar screen."  "The two major parties will join together to design laws to guard their overwhelming market share."  These laws range from ballot access laws, anti fusion laws, debate-access laws and presidential campaign public financing laws.  "This self installing "two party system" is unlawful."  The idea conflicts with the text and ideas behind the Constitution and its "wide-open" values.  The two-party system is neither derived from our history nor is it a constitutional imperative.

The introduction of government prepared ballots happened in the late 1800s.  Many states placed any party that wished to participate on the ballot without condition whilst some required 500 to 1000 voter signatures say 30 days before Election Day.  In Maryland between 1903 and 1938 there were never fewer than 3 parties for statewide offices.  In 1940 in an effort to remove left wing parties like the socialist, labor and communist parties the states began to severely restrict the ability of parties to get on the ballot by asking parties to achieve a certain number of votes in the prior election or to collect often tens of thousands of signatures of registered or previous election voters.  In Maryland these requirements have meant that no party outside the "two-party system" has ever succeeded in meeting the signature requirements for getting on the ballot for statewide office in the six decades since that change was made!

Article 1 of the Constitution spells out three requirements for running for office: that House Members be at least 25 years old and Senators 30, that they be residents of the United States for seven or nine years respectively and that they be inhabitants in the states they represent.  Beyond that the First Amendment granting political free speech means that government must not interfere in elections.  Signature requirements are thus unconstitutional.  Furthermore Raskin states “[The Fourteenth Amendment granting] equal protection bans [government] discrimination against minority groups.”

Signature requirements are "suffocating restrictions" which create a two-party monopoly.  Court rulings on the issue have be nothing but a “cynical power grab.”  The ruling used most commonly has been Jenness v. Fortson, which has been used by 126 lower court cases as a precedent in which third party or independent candidates have lost claims to being placed on the ballot.  The Jenness court claimed Georgia has "an important state interest in requiring ..a modicum of support before (putting) a candidate on the ballot - the interest.. [is] in avoiding confusion, deception and .. frustration..." The court made this claim when Georgia only had one candidate for Governor and for most of the US house and state legislative races between 1944 and 1962!  Therefore as a citizen in Georgia, facing a single person to choose from in an election can only be “confusing” and “frustrating” in as far as there are too FEW names to choose from!  The fact that since 1944 there was sparce competition was the direct result of the restrictive changes of 1943 regarding the collection of signatures and other unconstitutional impedances.  Before 1944 there were never more that 6 candidates on a state-wide ballot and no confusion was ever had or alleged.  In the meantime these states often see primary elections today with upward of eight candidates in the Democratic or Republican primary, which does not seem to this court to be confusing or frustrating.  The hypocrisy is rather transparent.

The author suggests that instead of the "perfectly useless task of collecting signatures” more constructive means of measurement could be implemented like asking candidates to document how much time they have spent campaigning; asking candidates to mobilize personal and volunteer hours for community service or getting them to register 500 people to vote.  Great Britain has never required more than 10 signatures for Members of Commons.

Solution: The "signature gathering obsession" should be addressed by federal courts in order to assess whether this "colossal.. waste of time" and harassment should be allowed.
 
In 1997 Chief Justice Rehnquist of the Supreme Court shamelessly stated "the Constitution permits the Minnesota legislature to decide that political stability is best served through a healthy two-party system."  Most of the states are involved in enabling the two-party system to keep a firm grip on the political system.  This is precisely when the Supreme Court is needed to uphold the Constitution and a democratic system but instead it has formed "part of the assault on democracy."  The two-party system has been making election devoid of the substantive debate necessary for political consciousness and change.

The Commission on Presidential Debates

Our presidential debates are staged by the Commission on Presidential Debates (CPD,) which is a private corporation set up in 1987 by lobbyists Frank Fahrenkopf Jr. and Paul Kirk Jr. on an explicitly "bipartisan" (two-party) basis.  Fahrenkopf and Kirk are former Republican and Democratic party chairmen and were, as of the publication of this book, activists in their party networks.  The CPD collects millions from "mega-businesses" like Sprint and Dow Chemical.  The author jokes that bipartisan means corporations can "buy" one party and get the other for free.  These are not real debates since the two sides agree on a host of issues, which would otherwise need to be debated.  In comparison to debates in almost every other democratic nation our author calls these debates "the most constricted and vacuous political discourses on earth."

A discourse between a journalist and Clinton’s campaign manager during the 1996 election made no secret of the fact.  In the transcript the campaign manager said that keeping third-party candidate Perot out of the debate was a “deal” made between the two major party candidates and Clinton’s manager admits that Clinton’s team were not honest in communications with the media about the fact that they wanted Perot excluded from the debate.  When asked why by the journalist the manager said, “because we wanted Perot’s people to vote for us [laughter.]”  Raskin was Perot’s lawyer at the time.  Federal Election Commission general counsel Laurence Noble gave an honest report saying, “there was “reason to believe” that millions of dollars in corporate contributions to the CPD were illegal contributions to the Democratic and Republican campaigns.”  The FEC overrode his analysis and Noble was soon removed from his post, which means that to top it all off the regulator was (and potentially still is) in on this unconscionable scheme!


Although the CPD was saved by the FEC in this case their legitimacy was teetering so in January of 2000 they announced a virtually insurmountable standard requiring a presidential candidate to have the support of 15% of the national electorate.  Never mind that most citizens polled by the Wall Street Journal believed third-party candidates should not have to meet this standard.  Never mind that polls are notoriously inaccurate and third-party candidates are especially disadvantaged by them and never mind that the debates are precisely how a candidate has historically gained in the polls.

In a 1992 case made by a candidate running for a house seat in Arkansas called Ralph P. Forbes the Supreme Court said a candidate's "viability" is a justified reason to preclude an independent candidate from participating in televised debates in a majority opinion written by Justice Kennedy.  This set a precedent which now operates as a pretext to exclude third-party candidates and independents from televised debates.  The author gives a number of specific cases where the Republican or Democratic nominee is less viable than a third party nominee using the same measure but where the major party nominee is nevertheless automatically included. Allowing the government to decide who debates usurps the role of the people since debates decide elections.  The First Amendment and equal protection (the Fourteenth Amendment) specifies the government has no rightful power to selectively favor chosen candidates with free television time.  Furthermore the author shows that the measures they use to judge viability are highly unreliable.  As I said before polling vastly understates first time and independent voters.  As an example we can take Russ Feingold who ran for Senate in Wisconsin in 1992 and in 3 weeks went from scoring 10 percent in a major poll to winning 69 percent of the final vote!

In the same opinion Kennedy said debates may be "faced with the prospect of cacophony."  To demonstrate the contradictions seen in rulings issued by the Supreme Court here is a quote from a 1971 Supreme Court decision on the democratic necessity to include multiple voices: "[the fact that] the air at times seems filled with verbal cacophony is, in this sense not a sign of weakness but of strength."

Solution: The author states that debates should include every presidential candidate that is on the ballot in enough states to make a win possible.

Education for democracy

The Warren Court (a period between 1953 and 1969 when Justice Earl Warren served as Chief Justice) said the process of education is the most important public function of our local governments. A 1973 decision in San Antonio Independent School District v. Rodriguez, set a very dangerous precedent by stating "states have no obligation to spend equal amounts of money per capita for students across County.. lines."

Solution: The author suggests a constitutional amendment stating that young people have a right to equal and integrated education."

Libertarianism and “laissez-faire” politics

The author dismantles libertarian tenets as hypocrisy.  Libertarians seek a "laissez-faire [minimal and deregulated] state" that only protects property rights and business contracts.  Thus it is free from restrictions relating to human rights but not free regarding property rights and business contracts.  The euphemistic title “libertarian” refers to a philosophy of selective freedoms that happen to be convenient for corporations, landlords and employers.  Lochner is a famous 1905 Supreme Court ruling, which threw out New York State’s enactment of a maximum 60 hour workweek and was a victory for the employer.  This was since reversed but libertarians seek to revive it as constitutional law.  Laissez-faire politics lives on and manifests itself in outcomes of disastrous and gargantuan proportions such as the collapses of Enron, Worldcom [and the banking crisis of 2008.]  Enron and Arthur Anderson (Enron's auditor) executives gave hard money contributions to 51 out of 56 members of the House Energy and Commerce Committee and 49 out of 70 members of the House Financial Services Committee to guarantee "deregulation."  Also, top executives at Enron used corporate assets as soft money contributions to both parties with a complete disregard toward shareholder interests.

Solution:  There should be a total ban on corporate soft money and other political contributions to national and state political parties, because democratically chartered corporations should not use shareholders’ money, invested for economic reasons, for political ends.

Legitimizing free speech of corporations

In 1978 the Supreme Court in First National Bank of Boston V. Bellotti threw out a Massachusetts’ law, which until that point, had made it a crime for corporations to make political contributions.  Justice Powell’s supporting argument was so preposterous it entirely contradicted itself.  He said the corporation’s speech might lose protection if it became too effective and he immediately went on to say that notwithstanding, if it were effective its effectiveness would be no reason to suppress it!  At this point there is good reason to question his intellect.  He went on to grant the corporation speech protection on the basis that all speech should be protected, which is simply false.  All speech is not protected.  To cite one example precedents have determined that speech on property that is privately owned and is not in public use is not protected.  No one needs a law degree to see this judge appeared to be struggling to grasp at something akin to a feasible argument, perhaps to serve other needs.  As I have mentioned in my previous articles a corporation is nothing more than an income-producing piece of property.  It is abundantly clear that the original framers of the Constitution did not feel the impulse to write the First Amendment to protect the rights of non-sentient pieces of property that exist for the purpose of turning an economic profit.

Solution: an addition to the voting amendment stating the corporation is not a person within the meaning of the Constitution.

Labor representation

The 1935 National Labor Relations Act (a.k.a. Wagner) guaranteed employees the right to engage in union activity without reprisal.  Since then labor movements have organized 40 percent of people in the private sector at times but this number has since decreased to 15 percent.  Since Wagner the rules have developed in a direction that benefits owners and management.  In 1969 NLRB v. Gisselle Packing Co. made it legal for management to make predictions about a company’s future during a union campaign.  Making threats remained illegal but from a practical standpoint it has proved quite difficult to distinguish between making “predictions” and making “threats” in court. 

Solution: The author argues that “the law should call for strict neutrality of management in a union election.”

The "Wealth Primary" 

For all intents it is impossible to run a political campaign without spending vast sums on TV, radio, campaign literature, staff etc. so the candidates must be in proper favor with moneyed power and service the political agenda of organized wealth. 

Solution: There needs to be a "constitutional imperative" for democratically financed elections, a total public-financing option for candidates.  Nothing of the sort has been passed in federal courts so far but some states have passed public-financing options.  Massachusetts requires $5 to be raised from a set number of people to qualify for public-financing (6000 people for Governor and 200 for a Representative.)  Candidates are given modest sums but the laws provide for escalator matching.  When they are publicly funded the author calls them "clean" elections.  They have been successful.  In Maine there was a 40 percent jump in contested primaries after the adoption of clean elections.  In Arizona there was a 60 percent increase in the number of candidates and a 62 percent increase in contested races after their adoption.  Because states and house districts are so large, publicly funding elections should be aided by taking back control of the public airwaves.

Solution: Raskin suggests that broadcast licenses should not be handed out with out reserving "free time for the programming of political democracy."  This would meaningfully reduce the cost of candidacy. The airwaves are a public trust and selling their use to corporations only to have to buy them back at a much steeper cost is illogical.  If Congress and the FCC cannot be made to do this there is nothing stopping the states from enforcing this for house and senate races.

The original Constitution was "deeply compromised by white supremacy and fear of popular democracy" and should not be considered sacred.

The Author explains that it is important to make changes to the Constitution and quotes President Thomas Jefferson who "detested the "sanctimonious reverence" with which some men looked at the Constitution, and said we should "avail ourselves of our reason and experience to correct the crude essays of our first and inexperienced councils."

The Supreme Court’s right wing

In the Supreme Court there exist two opposed interpretations of the Constitution.  The conservatives read the Constitution to mean state governments have any powers that are not explicitly denied to them whilst liberals view it as a "freedom charter" granting the individual any rights not explicitly denied.  An excellent case in point is taken from conservative Justice Scalia's opinion regarding abortion.  He states that a woman's right to abort her unborn child is not protected by the Constitution because it is not explicitly mentioned within it and because it has been illegal in the past. It doesn't take a brain surgeon to figure out that conserving our old ways would mean we would not have abolished slavery and we would still be denying civil, gay and women's rights.  It thus becomes quite a challenge to reconcile the conservative statism of the Supreme Court’s right wing with today's political and social system.

Conclusion

If there is a common thread running through the books I have covered, which are written by scholars on both sides, it is that they are often calling for the public-financing of elections.  By some estimates the amount required would be a meager 1/400^th of the overall budget.  If this nation could fix that problem alone there would undoubtedly be a substantial impact on the workings in Congress.  Campaign financing is the oil that lubricates the machinery, which operates on every decision made by every state, Governor, Congressperson, Senator and by the President of the United States.  Politicians are money hungry because their next election calls for it.  

The people of America are tired of the establishment. So much so they are willing to consider a candidate as imperfect as Trump, with his bigotry and his lack of understanding of key issues, just because he is anti-establishment.  The people are right (I don’t mean about Trump.)  The fact that nine non-elected, lifetime tenure persons comprising the Supreme Court justices can overrule acts passed by an elected Congress without adequate basis or meaningful accountability is madness.  The United Kingdom gets along perfectly well without having a court that can overrule Parliament.  The people of the UK can vote their leaders out, making the leaders directly accountable to the people.  That those same Supreme Court justices can decide a presidential election and that such a ruling should oppose the majority vote is madness.  That the United States political system has had non-constitutional rules imposed on it by the courts which have led to a tightly controlled two-party system and closed debates such that issues are not honestly addressed - is madness.  That elected officials can be so shamelessly bought that situations like Enron and the credit crisis of 2008 result, devastating millions of lives in America and around the world, is also madness.  To many political actors there is every incentive to maintain the status quo and that means the only likely way that things will change is through collective action.  That means you and me, getting up and doing something.  All my love!

I am Cecilia Mackie, MPhys and I worked on Wall Street for 10 years where I rose to an executive level.  The owners of a firm I worked at are now in jail.  Because of this experience I have avidly researched corruption based issues over the last few years.  Outside of this plog, I am building a tech platform which will allow people to participate in a community for political change.  The platform will have a mechanism to allow our community to enact change within the world of American politics.  

Please go to www.mackiemusic.com to access my social media pages and learn more about my polymathematical world of wonder!