• November 29, 2012
    Guest Post

    By Dr. John R. Koza, Chairman of National Popular Vote

    The Constitution provides a built-in mechanism for fixing the shortcomings of the current system of electing the president.

    The major shortcoming of the current system of electing the president is that four out of five states, and four out of five Americans, are politically irrelevant in presidential campaigns. After being nominated in 2012, President Obama conducted campaign events in just eight states, and Governor Romney did so in only ten. Just ten states received 98 percent of the $940 million spent on advertising by the two campaigns and their supporters.

    These problems are caused by state winner-take-all statutes (that award all of a state’s electoral votes to the candidate receiving the most popular votes in each separate state). Because of these state winner-take-all statutes, presidential candidates have no reason to pay attention to the concerns of voters in states where they are comfortably ahead or hopelessly behind. The common feature of the ten states that received attention in the 2012 presidential campaign was that the eventual winner received 53 percent or less of the state’s vote -- that is, they were closely divided “battleground” states.

  • July 20, 2012

    by Jeremy Leaming

    In a piece examining stringent voter ID laws implemented by a string of states, The New York Times likely in pursuit of balance or so-called objectivity trumpets the defense of the new impediments to voting.

    The laws, Ethan Bronner writes are called “voter suppression” by Democrats, and proponents of them say they are really about ensuring integrity of the nation’s elections, by wiping out voter fraud. And besides, those supporters note, we live in an “era when photo identification is routine for many basic things including air travel.”

    But Viviette Applewhite, interviewed for the piece, gets closer to the truth.

    She’s a 93-year-old Philadelphian who had no difficulty voting in 2008, but because of the state’s new voter ID law is looking at the possibility of not participating in a fundamental component of democracy this time around. “They’re trying to stop black people from voting so Obama will not get re-elected,” Applewhite, whose purse with all her identification was stolen, said. “That’s what this whole thing is about.”

    A Pennsylvania Republican who helped shove the rigid voter ID law through the legislature claimed that it would help the party’s presidential candidate carry the state.

    More importantly, the Constitution does provide that citizens “shall not be denied” the ability to vote because of race. Purchasing a cocktail or an airplane ticket is an action that often requires photo identification. Voting, however, is rather integral to democracy. So equating voting with other actions that require photo IDs is lame.

  • May 29, 2012

    by Jeremy Leaming

    Perpetual campaigning for national offices, ongoing and intensifying gridlock in Congress and a Supreme Court that easily invalidates federal laws might be sensibly addressed if only it were easier to amend to the nation’s Constitution. As Sanford Levinson, a leading constitutional scholar writes in a column for The New York Times critical discussion of the Constitution’s imperfections and their impact on governance is needed, but often impossible to entertain because of the reticence to do so by prominent politicians.

    First Levinson notes the problem, writing:

    Our vaunted system of ‘separation of powers’ and ‘checks and balances’ – a legacy of the founders’ mistrust of ‘factions’ – means that we rarely have anything that can truly be described as ‘government.’ Save for those rare instances when one party has hefty control over four branches – the House of Representatives, the Senate, the White House and the Supreme Court – gridlock threatens. Elections are increasingly meaningless, at least in terms of producing results commensurate with the challenges facing the country.

    The nation’s founders, however, were not so wedded to an unchanging governing document. Indeed Levinson points to the Articles of Confederation, which many of the nation’s founders disparaged, and which was eventually dumped because it set up a weak central government.

    But Article V of the Constitution, Levinson writes, makes it one of the world’s most difficult to amend.

    On top of that few national leaders seriously question the Constitution’s adequacy. (He notes Presidents Theodore Roosevelt and Woodrow Wilson were the last to publicly discuss drawbacks of the Constitution.)

  • February 13, 2012

    by Jeremy Leaming

    Catholic bishops and right-wing pundits and politicians are still slathering over the Obama administration’s contraception rule that requires health insurance policies to provide free contraceptives for employees at religious affiliated universities, hospitals and charities.

    On Friday after announcing a tweak to the rule – requiring insurance providers, not the religiously affiliated institutions to pay for the contraceptives – the United States Conference of Catholic Bishops issued a statement blasting the change as “unacceptable,” and continued to tar the policy as a violation of their religious liberty rights. (The religious liberties violation is a canard. The policy applies generally to all groups, secular and religious. As ACSblog noted last week there are numerous laws of general applicability that impact religious practice without amounting to a violation of the First Amendment’s free exercise clause. The contraception policy from the White House already exempts houses of worship, allowing them to provide inadequate health care coverage to their employees if they wish.)

    Nonetheless, Religious Right outfits, and not surprisingly many politicians, aren’t letting go of this one.

    For example, U.S. Rep. Connie Mack (R-Fla.) dished up hyperbole in a discussion of the Obama administration’s health care policy on CNN. Video of the segment is below.

    Rep. Mack claimed the flare-up over the contraception rule proved that the Obama “administration doesn’t believe that the Constitution and that personal freedoms and liberties matter. And it is an assault on our freedoms. So whether it is Obamacare forcing people to buy something they may not want to buy, and now this reaching into the church, and forcing the church to do something that is against its own tenants, this shows an arrogance.”

    “He’s a lawyer,” Mack continued, “and he is showing that the words of the Constitution don’t matter to him.”

    Regarding the administration’s landmark health care reform law, the Affordable Care Act, numerous constitutional law scholars have argued that the law’s minimum coverage provision, which starting in 2014 will require people who can afford it to obtain minimum health insurance coverage or pay a penalty, is a lawful regulation either under Congress’s power to regulate commerce or its taxing power.

    For more on the constitutionality of the Affordable Care Act’s minimum coverage provision see this ACS Issue Brief by the National Senior Citizens Law Center’s Simon Lazarus.

  • February 7, 2012

    by Jeremy Leaming

    A forthcoming study says the U.S. Constitution may not be the model charter it once was, and suggests other governing documents, such as the Canadian Charter of Rights and Freedoms, may be more inspirational to people seeking to secure liberty and equality.

    As The New York Times’ Adam Liptak puts it, the U.S. Constitution “has seen better days,” and “its influence is waning.” Liptak bases his observations on a forthcoming study by Washington University Law School Professor David Stephen Law and University of Virginia Law School Professor Mila Versteeg. Liptak describes the study as bristling with data and says the professors conclude, “Among the world’s democracies, constitutional similarity to the United States has clearly gone into free fall.”

    The reporter says there are numerous reasons for the Constitution’s waning influence, including its “terse and old” language, and the fact that it “guarantees relatively few rights.”

    He also notes that at least one of this country’s Supreme Court justices has recognized the Constitution’s faltering influence. Justice Ruth Bader Ginsburg said recently during a visit to Egypt that she “would not look to the United States Constitution if I were drafting a constitution in the year 2012.”

    Liptak also cites a 2002 Harvard Law Review article by former Israeli Supreme Court president Aharon Barak, who wrote that the Constitution’s declining “global stature” has coincided with a diminished view of the U.S. Supreme Court “among courts in modern democracies.” Barak also wrote that Canadian law “serves as a source of the inspiration for many countries around the world.”

    The study by Law and Versteeg also notes the rising influence of the Canadian Charter of Rights and Freedoms, which as Liptak points out “is both more expansive and less absolute” than the U.S. Constitution.

    Indeed the Canadian charter’s language on equality is broader than America’s Constitution, stating that “Ever individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” Additionally the charter notes that the equality provision does not prevent the government from taking action to improve the “conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”