Healthcare reform: tyranny of the minority?

            Some fundamental questions about the nature of the democratic process have revealed themselves over the course of the healthcare debate.  For example, how does one reform the system, as President Obama wishes to do, while still telling people that they can maintain the medical and insurance networks that they have now?  Or, why are lawmakers holding town hall meetings now to receive either affirmation or criticism from the public—after the key decisions have already been made?

            Or, why is a group of senators that represents 3 percent of the population crafting 20 percent of the healthcare bill?  That is the question The Washington Post addressed last week in looking at the Gang of Six on the Senate Finance Committee—Max Baucus (Mont.), Charles Grassley (Iowa), Kent Conrad (N.D.), Olympia Snowe (Maine), Jeff Bingaman (N.M.), and Mike Enzi (Wyo.)—who are tasked with finding a way to pay for the new system.  The potential problem is that these folks—while attempting to inject moderation between coastal liberals who yearn for a single-payer system and southern conservatives who seem perfectly satisfied with the status quo—really have the interests of a totally unrepresentative sample of the American public in mind.

         Is this fair?

 

         Let’s have a little history lesson here.  James Madison, who drafted the Virginia Plan prior to the Constitutional Convention as a broad outline of an effective national government, wanted to limit the influence of states on the types of responsibilities that would fall to the federal government in three ways: 1). He wanted the House of Representatives to elect senators (a “dilution” to pick the wise and stable men who would act as a check on the tumultuous lower chamber).  This was scrapped relatively early and relatively unanimously by people who thought that—our republic representing both the people and the states—the state legislatures should be the most appropriate electors of senators.

         2.) He wanted a federal veto on state laws that, by either being bad or volatile or just plain improper, would be overridden by the national government.  He more or less got this, though not explicitly, in the form of the supremacy clause and the fact that federal courts can declare state laws as violating federal statutes.

         3.) Madison wanted proportional representation in both houses of Congress.  This was crucial, and it took him several weeks of vocal opposition to come to terms with the fact that this would not happen.  Small states threatened to walk out and one delegate from Delaware took Madison aside to tell him that if small states could not have their interests represented equally in at least one chamber, they would have to find comfort in foreign hands.  A counter-proposal by the small states called the New Jersey Plan was never seriously considered (even small states recognized that the national government needed to be stronger; consequently the only real difference between the two plans was a unicameral vs. bicameral legislature), but it was leverage the smaller states used to make their concerns heard.

            It’s not that Madison did not respect the concern about a “tyranny of the majority.” He just felt that small states’ fears were misplaced.  He asked, what could Pennsylvania, Massachusetts, and Virginia possibly have in common that would cause them to ally against the smaller states?  In his mind, divisions would be regional—North v. South.  That was where differences in economy, lifestyle, ethnicity, and, of course, slavery would arise.  Naturally, he was correct.

          Fast forwarding one hundred years of so, we can thank the composition of the Senate, for better or for worse, for the shape the nation began to take.  As Manifest Destiny took hold in the 19th century, our continent was still inhabited by the French, Spanish, and British.  What was to keep American settlers loyal as they headed west, far from the seat of the federal government—or any government for that matter?  It was the incentive that they would receive outsize influence in the Senate should they decide to apply for statehood once the population reached a sufficient size.

         The bottom line is that the way the Senate is structured is the same double-edged sword that the Founders anticipated.  Is it fair now?  No.  Was it fair then? No.  Has the Senate augmented its own importance and magnified its own dysfunctions since 1789?  Absolutely.  Is there a fix?  Only if small state senators use their disproportionate power for the greater good—that is to say, they realize that they are the beneficiaries of a two hundred year old compromise and cannot fairly impose the beliefs of a small minority on the majority.

Virginia’s single term limit: a unique aberration

            When Sarah Palin called herself a lame duck—in reference to her resignation from the governorship of Alaska—it struck me as an odd use of the term.  After all, she has two more years left to govern, meaning there are two legislative sessions that require her input.  What’s more, she could have run for reelection, meaning instead of assuming “lame duck” status, she could have ramped up her efforts to pass key legislation to boost her portfolio of achievements by 2010.

            In fact, there is only one state in the country in which a first term executive is always a lame duck: Virginia.  Article V of the Virginia Constitution reads that the executive “shall be ineligible to the same office for the term next succeeding that for which he was elected….”  Now, technically, this language allows a governor to serve as many terms as he is elected to; they simply cannot be succeeding terms.  This odd scenario happened once in the twentieth century: Mills E. Godwin served as a Democrat from 1966-1970 and as a Republican from 1974-1978.  But as a practical matter, no recent governor has attempted to reclaim his job—most have attempted (and all but one have succeeded in) running for the Senate.

            I wrote to Dick Howard, a professor at the University of Virginia and author of Commentaries on the Constitution of Virginia, asking why Virginia has remained the sole bastion of the single-term limit.  Here is his answer:

When I directed the most recent revision of the Constitution of Virginia, I laid this question before the Commission on Constitutional Revision.  The commissioners (who included two former governors, Colgate Darden and Albertis Harrison) chose to leave the one-term limit in place.  For my own part, I would allow a governor to run for a second term.  Virginia is now the only state in the country retaining a one-term limit.  The conventional argument, which I think overblown, is that Virginia’s governor is sufficiently powerful vis-a-vis the legislature that he ought not to have more than one term.

Democratic governors Mark Warner and Tim Kaine

            Upon ratification of Virginia’s first constitution in 1776, the executive was weak (like most governors, powers were mostly limited to commanding the militia and granting pardons) and was appointed to a one-year term, twice renewable, by the General Assembly.  The governor shared power with an eight-member Council of State, also appointed by the General Assembly.  In 1851, the governorship became an elective office, the Council was abolished, and the term became a four-year, non-renewable one.

            The legislature has made multiple attempts to raise a constitutional amendment to repeal the single term limit, but it has never been approved twice (two votes are required, before and after a general election) in order to be submitted to voters; the last attempt was made in 1995.  The argument against a renewable term is that Virginia’s executive has been strengthened with succeeding constitutions, now having line-item veto power and the ability to make some appointments.  Legislators would like to see the appointment power curtailed in order for the governor to be eligible for reelection.

            While recent governors, including Douglas Wilder, Jim Gilmore, and Mark Warner, support a two-term limit, at the time of the last constitutional revision (1970) there was no interest among former governors to scrap the provision.  With every passing election, this part of our Constitution becomes more and more archaic.  A single term provides no ratification or repudiation of the incumbent’s agenda by the voters.  The proxy measure of success is whether the next governor is of the same party as the incumbent, but think of how much more work could get done with the cultivation of relationships between legislators and civic leaders if one individual were to serve for eight years.

            Gov. Tim Kaine, for instance, has few legislative victories to boast of besides a smoking ban in bars and restaurants and a significant buildup of the Democratic Party machinery.  His campaign promise to fix transportation issues has gone unfulfilled, and he blames this impasse on an adversarial Republican legislature.  Furthermore, his last year-and-a-half in office has been consumed by steering the state through a recession—cutting budgets rather than implementing new policy. 

         And while few people will suggest that Kaine is not a hardworking executive (at least, compared with other governors whose personal antics or managerial skills have embarrassed their states), he already has a job lined up after his term expires—as the chairman of the Democratic National Committee.  That is something we can avoid with a renewable term: preventing the governorship from becoming a placeholder position on the road to bigger and better things.

         Virginia has myriad legislative battles to fight in the coming years.  But some time in the near future, I would hope that the General Assembly will see fit to give incumbent governors the ability to put their tenure on the line for voters to renew.  It could not only tame the parochialism in the legislature, but it could reward excellent managers with the ability to establish a more permanent legacy.

Partisanship: it has been worse

            News flash: the country is politically polarized.  How polarized is it, you ask?  Apparently, the Pew Research Center has found that the gap between Republicans who approve of President Obama and of Democrats who approve of him is the largest gap “of any president in the modern era.”  This could be cause for concern; or it could be, more likely, a sign of business as usual: name-calling and stone-throwing between the rabid free-market partisans on the right and the rabid social conscience ideologues on the left.

            Putting aside all the ignorant references to socialism, this type of partisanship is not too unusual in the larger context of history.  Even George Washington, our country’s first hero and the man whom we would have gladly let become our first dictator, was hindered by partisanship in his administration.  Alexander Hamilton, a veteran of the Revolution who wanted a strong federal government with a central bank to establish credit for the country, was constantly assailed by Thomas Jefferson, who misconstrued fiscal strength as a “stepping stone to monarchy” and decried the “stock-jobbers” and “heretics” who were ruining the young republic.

            Jefferson famously declared in his inaugural address, “We are all Federalists. We are all Republicans.”  However, in his second term he prodded the House of Representatives to impeach Supreme Court Justice Samuel Chase—not because he was guilty of high crimes and misdemeanors, but because he was a High Federalist who criticized Jefferson from the bench.  The trial was presided over by Vice President Aaron Burr, who himself had just killed Hamilton in a duel stemming from the partisan feud that deprived Burr of the presidency in 1800.  To my knowledge, these unusual circumstances are not in danger of being repeated today.

            Furthermore, there are numerous instances in the nineteenth century of American politicians frustrating progress because of sectional or ideological concerns.  Most notably, northerners feared that slavery would expand into each new piece of territory that the country acquired; southerners were wary of northerners who passed tariffs to slow cotton exports and attempt to deprive them of their [slave] property. 

I don’t believe that any issue is as explosive today as slavery was back then; differing views on stem cells and of government-sponsored health care are only skin-deep.  The fact that Obama was elected with a moderate majority in the popular vote but a huge majority in the electoral college means that his message was spread to communities throughout the country, not limited to enthusiastic support in just the predictable sections.  This Obama presidency has the opportunity to “refound” the nation on a more equitable set of principles just as Jefferson, Lincoln, and Roosevelt did.  But the opposition that Obama faces is merely an impediment to progress, not a threat to it.

            Finally, here is an example of what we’re not seeing from our contemporary partisans, even from Dick Cheney and Rush Limbaugh. This is a clip from senate race of Virginia of 1994; Democrat Chuck Robb slings some wicked mud against his opponent, Oliver North, who was charged with several felonies for his role in the Iran-Contra scandal.  Enjoy.

Change the Founders couldn’t believe in?

            Barack Obama’s election to the presidency is understood to mean redemption for our country—not only for eight years of an administration that shunned science, derided international opinion, tortured its captives, and put a partisan glaze on the justice system, but also for the centuries of slavery and discrimination imposed upon American blacks.  In one sense, the people of 2008 have vindicated Thomas Jefferson’s universally-recognizable declaration that all men are created equal.  But in another sense, we proved Jefferson wrong.

            Obama will begin to serve in 2009, two hundred years exactly Jefferson’s successor.  Our most famous Founding Father was a Virginian (who was better known for creating the new government rather than serving in it), a philosopher of the human condition, as well as a slaveholder.  He was not a particularly cruel master of the type Frederick Douglass had to endure, but he also choose not to free his slaves when opportune.  Indeed, Jefferson advised a friend against manumission, maintaining that doing so would be like “abandoning children” (an admission that was made all the more a propos by the fact that a handful of Jefferson’s slaves actually were his children, although he never acknowledged it).  This was not an unreasonable comparison, considering that conditions for freed blacks in other parts of the Union could be as deplorable as enslavement.

            Jefferson’s outlook on the African race is easy to vilify, particularly his pseudo-science on the biological differences between the two peoples—using such ironclad evidence as noting that the black male prefers white women for mates in the same way that the male orangutan prefers black women—as he searched for an explanation of blacks’ inferiority.  But his other approach to analyzing race relations was more accurate: he understood that sociologically blacks would always be inferior to whites as long as Americans conferred value on skin color.  Blackness was a stigma, in the way that people who use welfare or illegal immigrants are stigmatized today.  Blackness meant servitude and whiteness signified mastery: it was an institution where your race defined your role, and as a regime it could not be changed easily without another value system taking its place.

            Now, that’s not to say that Jefferson loved the idea of holding human beings in servitude, particularly in a democracy.  Indeed, a sizeable portion of his draft of the Declaration of Independence harangued King George III for violating the “most sacred rights of life and liberty in the persons of a distant people who never offended him” by imposing slavery on the colonies.  Of course, that sentiment would never be echoed by the Southern colonies, but Jefferson saw the problem of an “immovable veil of black” that slavery presented.  He employed the metaphor of a wolf being held by the ears—too dangerous to either keep or let go.  Blacks and whites could never leave peacefully on the same continent, he thought, without a race war of horrific proportions.  Less than a hundred years after the country was founded, of course, such a prediction came true.

            In the long run, though, our system has worked.  I don’t think that Jefferson were alive today he would be surprised to see that legacies of slavery still exist today: high incarceration rates for black males, impoverished black families forming the core of urban centers, and low numbers of black children living in two-parent households.  But I also doubt he would be necessarily surprised that educated men and women of all races have risen to the top echelons of society.  He always held out hope that a more enlightened generation would fix the problems that his could not. 

            That is what Obama has been charged with in the twenty-first century—how to promote freedom in the world without losing the faith of his countrymen and his allies; how to encourage spending and homeownership for each citizen without toppling the world’s credit markets; how to pledge energy independence but not be held back by the false allure of low oil prices; how to bring civil rights to all Americans regardless of sexuality without redefining a universal institution.  Those issues would possibly be beyond Jefferson’s comprehension, but for a man who founded the University of Virginia, who valued universal public education, and who put scientific curiosity before religious superstition, he would certainly urge us towards progress.

            Just like the progress we have made by electing a black president.

And Then There Were Nine

            Temperament: chances are, you have one.  No, it’s not down there.  Up a littttttllle higher…there! Stop, that’s it, right there.  In fact, it is probably the only thing that keeps you, a lucid, amicable person from becoming a disagreeable douchebag.  For a Supreme Court Justice, temperament can make or break a judge’s credibility.  Did you realize, for example, that Warren Burger was hated by his colleagues for changing his vote at the last minute in order to write the most important opinions for the Court?  Or that Earl Warren personally persuaded the dissenters in Brown v. Board of Education to join the majority’s condemnation of segregation in order to become the unanimous decision that we know today?  It should come as no surprise that judicial temperament—a combination of how a judge views the law and how effectively he is able to convince others to adopt a pragmatic solution—is key to building coalitions in a business where five votes can change everything from free speech limitations in wartime to who becomes president.

            In his book, The Supreme Court: The Personalities and Rivalries That Defined America, law professor Jeffrey Rosen compared the stories of influential individuals during each of the defining moments in the Court’s history to not only show their outlook towards the law (we generally define this in terms of liberal or conservative), but to what degree they were able to mold their Court around that set of beliefs.  It should come as no surprise that the more friendly and persuasive a judge is, he will be able to earn the esteem of colleagues more often than by harsh criticism and unwillingness to consider others’ views.  Really, this is true of any job, but when these people are appointed from the ranks of legislatures, lobbying groups, the White House, and lower courts—each with different life experiences, agendas to push, and egos to stroke—coalitions can be valuable.

            Take our third Chief Justice, John Marshall, as a case study.  Before his tenure on the Court he was a minuteman in Washington’s army during the Valley Forge winter, John Adams’s Secretary of State, and a Federalist representative of Virginia to Congress.  Marshall was elected in a primarily Republican district but his personality won over voters and would continue to win over colleagues.  He was an unpretentious man who wore black robes to court rather than the customary crimson and who once, as Chief Justice, carried his own turkey through his hometown of Richmond, whereupon he was mistaken for a servant and was tossed a sympathetic coin for his troubles.  Marshall insisted that the Justices room together in Washington, D.C., and they would socialize over a box of his Madeira.  Starting with the Marbury v. Madison decision of 1803, Marshall sought to expand the power of the federal judiciary to review and deny congressional acts and executive orders that did not accord with the Constitution.

 His main rival was Thomas Jefferson, who, aside from being an elite philosophical loner, took very personally Marshall’s affronts against his administration.  Jefferson was horrified that, of the three Republican Justices he appointed to the Court, there were only nine dissents between them during their tenures.  He urged Congress to impeach Justice Samuel Chase for personal attacks against him.  He lauded Marshall’s “twistifications” of the law as the antithesis of majority rule.  And he hated that John Marshall issued only one opinion for the entire Court, for the purpose of giving the institution one mighty voice.  Jefferson called for the Court to issue opinions seriatim, or separately; which is strange considering that this was the practice of British courts and Jefferson was suspicious of all things British.  In the end, the Court came to reflect Marshall’s legal outlook more so than Jefferson’s because Jefferson, known more as a respected philosopher than an accommodating politician (the Declaration of Independence, proposal of secession, the “revolution” of 1800—all were products of Jefferson’s penchant for majority rule) whose personal ideology trumped the legitimacy of the institution.

A similar situation arises with the more recent pairing of Chief Justice William Rehnquist and Antonin Scalia.  Scalia is the longstanding punching bag of liberals, the media, and even his own colleagues because of a militantly linear conservative ideology.  Furthermore, he, unlike his colleagues, craves media attention and is not shy about making controversial statements in public, including a Sicilian gesture to a reporter that many interpreted as lewd.  His dissenting opinions are filled with apocalyptic and accusatory statements toward the majority, complaining that they dictate what “the political branches ought to do.”  The more he has hawked his philosophy of original intent the more vulnerable he is to criticism for hypocrisy, such as when he sided against congressional and state prerogative to decide the 2000 presidential election in order to install a Republican president, although in clear opposition to pure conservative ideology.

Rehnquist, by contrast, largely stayed out of the media’s eye except when discussing one of his books.  Like Marshall, he was unpretentious and, when attending a judges’ convention in New Orleans, stopped by a Lutheran church to join in the services.  When each person had to stand and introduce himself, Rehnquist merely described himself as a “government lawyer.”  He was not afraid of moderating his ideology to form consensus and his dissenting opinions showed no anger towards the majority.  Although as an associate justice under Warren Burger he was more independent minded and ideologically driven (and still reeling from criticism over a pro-segregation memo), as Chief Justice he built a coalition among the pragmatically-minded on the Court, Stephen Breyer and Sandra Day O’Connor. 

Thus it is no surprise that the most effective judges are not the ones who make the most noise, but those who build the strongest coalitions.  That is not to say that one must compromise their beliefs, but rather do their best to persuade and convince others to adopt the point of view without being bombastic and apocalyptic.

7/22