Minority Rule and State Federalism

11-16-2018

Minority Rule and State Federalism

Americans are in for a long period of minority rule. As more of us move to urban and suburban areas in a small number of states, the vast majority of the population is increasingly at home in a few blue and purple states. What this means, as Norman Ornstein of the American Enterprise Institute recently pointed out, is that “By 2040 or so, 70 percent of Americans will live in 15 states. Meaning 30 percent [of the voters] will choose 70 senators. And the 30 percent will be older, whiter, more rural, more male than the 70 percent.” We are heading towards a situation in which one important branch of the federal government will increasingly be controlled by a homogeneous minority of the population. For Jonathan Taplin, this means that President Trump—whether or not he wins the Presidency again in 2020—is a transitional figure in the nation’s history. The Republican Party will shrink, but it will maintain an increasing hold on the Senate and possibly on the Supreme Court. This suggests, as I argued at the recent Hannah Arendt Center Conference “Citizenship and Civil Disobedience,” that there will be increasing chaos and violence and the real possibility of another Civil War—unless we come up with a solution. Taplin argues that there is in fact a solution this problem of minority built into the Constitution: The Tenth Amendment. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” As Taplin writes:

The origins of the amendment stem from Thomas Jefferson’s debates with his friend James Madison during the 1787 Constitutional Convention. After reading the first draft of the Constitution, Jefferson wrote Madison that the great fault in the document was “the omission of a bill of rights.” He believed that the modifications to the British constitution, enshrining a bill of rights in the wake of Cromwell’s excesses, were critical to a free society. Although Madison originally opposed a bill of rights, over the next two years of ratification of the document by the states he came to see Jefferson’s point that the greatest threat to both individual and local liberty might flow from an authoritarian federal government of the Cromwellian sort. The solution lay, in Jefferson’s words, in including an amendment making clear that “the true theory of our Constitution is that the states are independent as to everything within themselves, and united as to everything respecting foreign nations.” It has taken two hundred and thirty years to put Jefferson’s defensive measure against an autocratic federal government to the test. While the press freedoms guaranteed by the First Amendment and the privacy protections enshrined by the Fourth Amendment are being tested, progressives are looking to the Tenth Amendment for relief. Since Trump took office, twenty-two Democratic state attorneys general have sued the Trump Administration. Nineteen attorneys general sued to stop Trump from putting an end to certain Obamacare subsidies, eighteen sued to stop the rollback of environmental protections, and sixteen sued to reverse Trump’s decision to rescind DACA protections for young immigrants. Although these lawsuits are working their way through the courts, the Trump Administration has lost many of the early cases, including a suit in August 2017 in which a California judge ordered the EPA to enforce its own clean-air standards. So far in 2018, twenty-four states have passed thirty-seven bills to curb rising prescription drug costs, according to Trish Riley, the executive director of the National Academy for State Health Policy. And a suit has been recently brought by eight states and the District of Columbia to block the Trump Administration’s decision to allow a Texas company to publish downloadable blueprints for a 3-D-printed handgun.

Across the country, state attorneys general are suing the national government. The Massachusetts attorney general brought suit against the secretary of education to allow the states to rein in student loan debt collectors. A federal judge recently agree with Massachusetts. The California attorney general has won twelve suits against the Trump administration. As Taplin sees, these attorney generals from the states are “posing the Jeffersonian question: Where does the power to govern reside?” The question of where political power resides is central to Hannah Arendt’s understanding of politics and specifically the political foundation of the United States. Power, Arendt argues, emerges from mutual action. Written laws, and even written constitutions, will not restrain the determined power of democratic actors. The only reliable protection from the tyranny of the majority comes not from constitutional rights but from a dispersal and multiplication of powers. As James Madison argued in Federalist 10, when there are plural and competing powers—Madison called them factions—the plurality of factions frustrate the dangerous concentration of power in  one sovereign. For Arendt, the dispersal of power amongst the states and the national government is the greatest innovation of the American Constitution. —Roger Berkowitz  

Form more information visit: https://harpers.org/archive/2018/11/rebirth-of-a-nation/

State Constitutions

Former Supreme Court Justice John Paul Stevens writes that the mainspring of civil rights protections is not the United States Constitution. Building on an old tradition that is being revived today, he argues that the effort to protect and expand basic rights might most productively be fought at the level of state constitutions.

In a law review article published over forty years ago, Supreme Court Justice William J. Brennan argued that state constitutions are a “font of individual liberties” and that their protections, in matters like search and seizures and the right to a jury trial, often extend beyond the protections of federal law.* In 51 Imperfect Solutions: States and the Making of American Constitutional Law, Jeffrey Sutton, a well-respected judge who sits on the United States Court of Appeals for the Sixth Circuit, endorses Brennan’s thesis and provides four examples in which state constitutional protections were or are more robust than federal ones. These examples demonstrate that the law may be best served if proponents of a new or expanded right give priority to a claim based on their state constitution, and that state judiciaries can set an example for the federal judiciary. Each of them—as well as a fifth example, regarding partisan gerrymandering, that Judge Sutton does not take up but is also worthy of study—merits separate discussion. The first example involves the equality and adequacy of funding for public education. In Brown v. Board of Education (1954), the Supreme Court removed a major barrier to equal educational opportunities by prohibiting the segregation of public schools, but it left in place the financial obstacle faced by poor school districts unable to provide their students with an education comparable to that offered by wealthier districts. In San Antonio Independent School District v. Rodriguez (1973), over the dissent of four justices, including Thurgood Marshall, the Court rejected a challenge to Texas’s school-financing system, which was based on local property taxes and thus created wealth-based barriers to equal educational opportunities in Texas’s public schools. The plaintiffs received no relief in their federal case, but in three cases in the 1980s and 1990s the Supreme Court of Texas held that the state’s school-financing system violated the Texas Constitution. Courts in other states, like New Jersey and Ohio, have similarly held that their state constitutions require some measure of equal funding among school districts, demonstrating that state constitutions sometimes offer greater protections than the US Constitution does.

 

Form more information visit: https://www.nybooks.com/articles/2018/12/06/other-constitutions/

A Successful War Crimes Trial in Cambodia

The Extraordinary Chambers in the Courts of Cambodia, an international war crimes tribunal in Cambodia, ruled this week that the Khmer Rouge mass-killings of Vietnamese and Muslims was a genocide. Peter Maguire admits that the war crimes trials in Cambodia were overpriced. They did not help “end impunity in the public consciousness”? Nor did they “help Cambodia transition to a better place”? For Maguire, the trials in Cambodia, like every similar effort before, “proved once again that politics are an indelible part of any war crimes trial.” And yet, “as overpriced and overcomplicated as ECCC was, thanks to the historical record compiled by generations of valiant researchers, it can be counted as a success.”

Thirty-nine years ago, the world’s response to Khmer Rouge atrocities shattered the “never again” promise once and for all. In three years, 10 months, and 20 days, the Chinese-backed Cambodian communists killed roughly 20 percent of their population (1.5 to 2 million people). When the Vietnamese tried the Khmer Rouge leaders in absentia in 1979, they were widely ridiculed for their efforts. After the world learned of Cambodia’s “Killing Fields,” China, the United States, and the United Nations protected and rearmed the perpetrators while Western leftists, led by Noam Chomsky, attacked “the extreme unreliability of refugee reports” of crimes against humanity. Although the United Nations spent $2 to 3 billion dollars during their Cambodian occupation (1992-1993), no Khmer Rouge leaders were captured, much less held legally accountable…. By far the ECCC’s most important legacy was the creation of an unassailable historical record that will withstand the test of time and make historical revisionism virtually impossible. However clear the historical facts seem to Western scholars, they remain unclear to some Cambodians and for good reason. Over the course of three decades, Cambodians were subjected to the competing and contradictory propaganda claims of the U.S.-backed Lon Nol regime (1970–1975), the Khmer Rouge (1975–1979), the Vietnamese-installed People’s Republic of Kampuchea (1979–1989), the State of Cambodia (1989-1992), the United Nations Transitional Authority Cambodia (UNTAC) (1992–1993), and since 1993 the iron-fisted Prime Minister Hun Sen and his Cambodian People’s Party (CPP). It is now clear for all to see, in meticulous detail, who did what to whom.

 

Form more information visit: https://thediplomat.com/2018/11/the-khmer-rouge-trials-the-good-the-bad-and-the-ugly/?fbclid=IwAR2Z5HD_180euxVb9OvkgLsx_-UJxvG-cHORXMhE7HFHcWRwGKDCmG5UquM