The Need To End Minority Rule in U.S.       

Harvard professors of government, Steven Levitsky and Daniel Ziblatt, make a convincing case that the structure of the U.S. government has permitted minority rule in the U.S. and they propose ways to change that structure to reduce the enabling of such minority rule.[1] We will examine their arguments about structure and reform. Then a couple of other ways to change one part of that structure—the Electoral College–will be proposed by this blog followed by looking at another critique of the current U.S. government structure provided by Larry Diamond of the Hoover Institute at Stanford University.

Existing Structure Enabling Minority Rule

 “Democracy is supposed to be a game of numbers: The party with the most votes wins. In our political system, however, the majority does not govern. Constitutional design and recent political geographic trends — where Democrats and Republicans live — have unintentionally conspired to produce what is effectively becoming minority rule.”

“Our Constitution was designed to favor small (or low-population) states. Small states were given representation equal to that of big states in the Senate and an advantage in the Electoral College, as we are seeing in this year’s presidential election. What began as a minor small-state advantage evolved, over time, into a vast overrepresentation of rural states. For most of our history, this rural bias did not tilt the partisan playing field much because both major parties maintained huge urban and rural wings.”

“Today, however, American parties are starkly divided along urban-rural lines: Democrats are concentrated in big metropolitan centers, whereas Republicans are increasingly based in sparsely populated territories. This gives the Republicans an advantage in the Electoral College, the Senate and — because the president selects Supreme Court nominees and the Senate approves them — the Supreme Court.”

Moreover, “recent U.S. election results fly in the face of majority rule. Republicans have won the popular vote for president only once in the last 20 years and yet have controlled the presidency for 12 of those 20 years. Democrats easily won more overall votes for the U.S. Senate in 2016 and 2018, and yet the Republicans hold 53 of 100 seats. The 45 Democratic and two independent senators who caucus with them represent more people than the 53 Republicans.”

“This is minority rule.”

“The problem is exacerbated by Republican efforts to dampen turnout among younger, lower-income and minority voters. Republican state governments have purged voter rolls and closed polling places on college campuses and in predominantly African-American neighborhoods, and since 2010, a dozen Republican-led states have passed laws making it more difficult to register or vote.”

Levitsky & Ziblatt’s Proposed Reforms

Eliminate the electoral college by constitutional amendment. This is not easy. Under Article V of the Constitution, the Congress shall propose amendments “whenever two-thirds of both Houses shall deem it necessary [Senate (2/3 x 50 = 33.3) and House (2/3 x 435 = 290). Or under Article V, the Congress shall call a Convention for proposing amendments “whenever . . . two-thirds of the Legislatures of the . . .States [currently 2/3 x 50 = 33.3] apply for such a convention). I agree.

Eliminate the filibuster, which has meant that “meaningful legislation now effectively requires 60 votes, which amounts to a permanent minority veto.”[2 ] This would require a Senate vote to change its rules. Under the current Senate Rules, I believe that would require a vote of at least 60 senators, but whenever a new congress convenes as it will do in January 2021, I believe it may do so by majority vote.   (Please advise by comments to this post if these beliefs about Senate Rules are wrong.).) I agree.

Offer statehood to Puerto Rico and the District of Colombia, “which would provide full and equal representation to nearly four million Americans who are currently disenfranchised.” I agree.

Defend and expand “the right to vote. “HR-1 and HR-4, a package of reforms approved by the House of Representatives in 2019 but blocked by the Senate, is a good start. HR-1 would establish nationwide automatic and same-day registration, expand early and absentee voting, prohibit flawed purges that remove eligible voters from the rolls, require independent redistricting commissions to draw congressional maps, and restore voting rights to convicted felons who have served their time. HR-4 would fully restore the 1965 Voting Rights Act, which was gutted by the Supreme Court’s Shelby County vs. Holder ruling in 2013.” I agree.

Other Suggestions Regarding the Electoral College

There are at least two other methods of changing the anti-democratic nature of the current Electoral College that, at least in part, would not require constitutional amendment.

First. Peter Diamond, professor emeritus at M.I.T. and a 2010 Nobel laureate in economics, has suggested a constitutional amendment that would require each state to divide its electoral vote between the two leading candidates within the state in accordance with the popular vote. For example, a state with an even split in the popular vote and 10 electoral votes would allocate 5 such votes to each candidate.[3]  Yes, such a change would require such an amendment since it would require all states to do it this way.

Or each state independently could decide to do just that, without a constitutional amendment, since Article II, Section 1 of the Constitution provides, “Each State shall appoint, in such Manner as the Legislature thereof may direct,” the Electors to which it is entitled. (Emphasis added.)  It, however, seems unlikely that all 50 states independently would decide to do this as a matter of each state’s laws.

Another way of changing the anti-democratic nature of the Electoral College is approval by additional states of the existing National Popular Vote Interstate Compact, which requires signatory states to award all their electoral votes to whichever presidential candidate wins the overall popular vote in the 50 states and the District of Columbia once the Compact is signed by states with at least 270 electoral college votes. As of October 2020 this compact had been adopted by 15 states and the District of Columbia, which have a total of 196 electoral college votes although one of the states (Colorado) has suspended its approval of the Compact.[4]

This proposal raises a number of legal issues. Some legal observers believe states have plenary power to appoint electors as prescribed by the Compact; others believe that the Compact will require congressional consent under the Constitution’s Compact Clause or that the presidential election process cannot be altered except by a constitutional amendment.

Another Challenging Critique of U.S. Government

Another challenging and surprising critique of the current governmental problems in the U.S. has been provided by Larry Diamond,  a senior fellow at the Hoover Institution and at Stanford University’s Freeman Spogli Institute for International Studies.[5]

According to Mr. Diamond, “Today, we are far closer to a breakdown than most democracy experts, myself included, would have dared anticipate just a few years ago. Even if we are spared the worst, it is long past time to renew the mechanisms of our democracy, learn from other democracies around the world and again make our republic a shining city on a hill.”

Moreover, “The very age of American democracy is part of the problem. The United States was the first country to become a democracy, emerging over a vast, dispersed and diverse set of colonies that feared the prospect of the ‘tyranny of the majority.’ Hence, our constitutional system lacks some immunities against an electoral debacle that are common in newer democracies.”

Today, he asserts, “The American [election] system is a mishmash of state and local authorities. Most are staffed by dedicated professionals, but state legislatures and elected secretaries of state can introduce partisanship, casting doubt on its impartiality. No other advanced democracy falls so short of contemporary democratic standards of fairness, neutrality and rationality in its system of administering national elections.”

In contrast, “even though Mexico is a federal system like the United States, it has a strong, politically independent National Electoral Institute that administers its federal elections. The Election Commission of India has even more far-reaching and constitutionally protected authority to administer elections across that enormous country. Elections thus remain a crucial pillar of Indian democracy, even as the country’s populist prime minister, Narendra Modi, assaults press freedom, civil society and the rule of law. Other newer democracies, from South Africa to Taiwan, have strong national systems of election administration staffed and led by nonpartisan professionals.”

In addition, “more recent democratic countries have adopted constitutional provisions to strengthen checks and balances. Like many newer democracies, Latvia has established a strong independent anti-corruption bureau, which has investigative, preventive and educational functions and a substantial budget and staff. It even oversees political and campaign finance. South Africa has the independent Office of the Public Protector to perform a similar role.”

In contrast, the U.S. “has no comparable standing authority to investigate national-level corruption, and Congress largely investigates and punishes itself.”

On another issue, newer democracies have taken “measures to depoliticize the constitutional court. No other democracy gives life tenure to such a powerful position as constitutional court justice. They either face term limits (12 years in Germany and South Africa; eight in Taiwan) or age limits (70 years in Australia, Israel and South Korea; 75 in Canada), or both. Germany depoliticizes nominations to its constitutional court by requiring broad parliamentary consensus. In other democracies, a broader committee nominates Supreme Court justices. In Israel this involves not just the executive branch but the parliament, some of the existing justices and the bar association.”

In contrast, the U.S. “lacks national checks on executive corruption and national guarantees of electoral integrity that have become routine in other democracies around the world. And nominations to our Supreme Court have become far more politicized than in many peer democracies.”

Conclusion

A proposal for changing the undemocratic  structure of the U.S. Senate will be discussed in a future post.

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[1] Levitsky & Ziblatt, End Minority Rule, N.Y. Times (Oct. 23, 2020). Levitsky and Ziblatt also are co-authors of How Democracies Die, which was reviewed in the New York Times: Szalai, Will Democracy Survive Trump? Two New Books Aren’t So Sure, N.Y. Times Book Review (Jan 10, 2018).

[2] This blog has published posts that discuss the history of the filibuster rule, including modest reforms of the rule in 2013, and recent unsuccessful litigation challenging the constitutionality of the filibuster.

[3]  Diamond, Letter to the Editor: Let States Split the Electoral College Votes, N.Y. Times (Oct. 29, 2020).

[4] National Popular Vote, Inc., National Popular Vote!National Popular Vote Interstate Compact, Wikipedia.

[5] Diamond, I’m a Democracy Expert. I Never Thought We’d Be So Close to a Breakdown, N.Y. Times (Nov. 1, 2020).  Diamond is the author, most recently, of  “Ill Winds: Saving Democracy From Russian Rage, Chinese Ambition, and American Complacency,“ Penguin Random House, 2019, 2020).

Questioning Originalists and Textualists’ Interpretations of the U.S. Constitution

According to the Associated Press, “Originalism is a term coined in the 1980s to describe a judicial philosophy focusing on the text of the Constitution and the Founding Fathers’ intentions in resolving legal disputes.” [1]

This was a subject of the testimony of Judge Amy Coney Barrett at her recent Senate hearing about the confirmation of her appointment to the U.S. Supreme Court. She  “expounded at length on the tenets of textualism and originalism, approaches made popular by Justice Scalia that privilege plain reading of legal texts and seek to minimize a judge’s own interpretations of statute or the Constitution.” Originalism, she said, “means that I interpret the Constitution as a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it [in 1787-88]. So that meaning doesn’t change over time. And it’s not up to me to update it or infuse my policy views into it.”[2]

Although I did not follow that hearing in detail and although I am not a scholar of that philosophy, several commentaries have suggested important qualifications to such a philosophy. Here is a summary of two of those commentaries.

Professor Jack Rakove[3]

One of those commentaries was by Jack Rakove, the William Robertson Coe professor of history and American studies and a professor of political science emeritus at Stanford University and the author of “Original Meanings: Politics and Ideas in the Making of the Constitution,” which received the 1997 Pulitzer Prize in history.

Rakove starts his recent commentary by noting, “debates about originalism and how to perform it have been roiling the legal academy for several decades. Scores and scores of scholarly articles on the subject pour in annually from university law reviews; another baker’s dozen books also address it. And there is no simple way to say how we know what the phrases of the Constitution originally meant.” (Emphasis added.)

Moreover, Rakove says, “The framers never worried about its future judicial interpretation, nor would they have thought of themselves as ‘originalists.’”

For historians, “How can we determine what the Constitution truly meant except by examining why its clauses were proposed and how they were supported or criticized? The Constitution and its amendments were products of political debates; reconstructing those debates is how one would decipher its ‘original meaning.’” (Emphasis added.)

Lawyers and presumably judges, on the other hand, “assume the words the framers used had settled meanings and that a conscientious reader — an informed public official, a learned jurist or just a responsible citizen — can understand those meanings without knowing anything about the debates that produced the text.”

The above approach by lawyers and judges, however, ignores the fact “that the founding era was a period of intense conceptual change. Some of the key words and terms in our constitutional vocabulary were subject to pounding controversy and reconsideration. One has to engage these debates to understand how Americans were thinking about these issues at the time. For today’s originalists, that complexity is part of the problem. The records of history are often messy, not neat; speakers argue past each other or engage in rhetorical excess; their fears are dated, their expectations of worst consequences exaggerated.”

“Rather than accept these aspects of the historical record, today’s originalists prefer to regard the Constitution as a purely legal text, subject to ordinary rules of construction. Yet the linguistic sources they rely on will not provide the answers they seek. [For example, there “is no adequate dictionary definition of ‘the executive power’ that Article II vests in the president. [For another example, understanding] what the ‘establishment of religion’ invoked in the First Amendment meant to its framers requires examining the complex ways in which the states had supported the existing denominations of a very Protestant America. As Thomas Jefferson explained in his ‘Notes on the State of Virginia,’ the very word ‘constitution’ had multiple meanings that were still evolving precisely because Americans were trying to figure out how to make written constitutions — their greatest innovation — the supreme law of the land.”

Rakove says the “best-known example of ‘public meaning’ originalism, Justice Antonin Scalia’s opinion in the major Second Amendment case D.C. v. Heller, is . . . a travesty of historical unreason. Here, the court narrowly held that an individual right of self-defense within one’s domicile was constitutionally protected. Far from being a decision logically derived from the original intentions behind the Second Amendment, Scalia’s opinion in Heller is, ironically, a great tribute to the idea of a ‘living Constitution,’ one whose meaning evolves over time — in this case, recognizing how attached Americans had become to the use of firearms.”

Indeed, although there were “a handful of references [alluding to] an individual right to arms” in the debates surrounding the Second Amendment, “that was manifestly not the issue in dispute. The debate was about the militia, a state-governed institution whose future status was problematic because the Constitution gave Congress broad authority to oversee its ‘organizing, arming, and disciplining.’ No one then would have read the amendment to constrain the ‘internal police’ powers of the states, meaning their broad authority to secure public health and safety.”

As a result, “the practice [of originalism] does not provide the constraints on judicial rulings that its advocates claim.”

Rakove’s earlier and somewhat longer article on this same subject in the Fordham Law Review concludes with the following comment: In “the realm of politics and constitutionalism more generally, events continued to prove disruptive of linguistic stability. Critical terms, like constitution or executive power or establishment of religion or sovereignty, came under sustained pressure, not least because of the inventiveness of American revolutionary politics [in the late 18th century]. Anyone who thinks he [or she] can establish conditions of linguistic fixation without taking that turbulent set of events into account is pursuing a fool’s errand.” (Emphasis added.) [4]

Jamelle Bouie[5]

The other recent commentary came from Jamelle Bouie, a New York Times columnist and a political analyst for CBS News, who cites the above criticism of originalism by Rakove and by “Jonathan Gienapp, a historian of the early American republic at Stanford, [who] charges originalists with building a framework ‘such that no amount of historical empiricism can ever challenge it,’ in which neither ‘the Framers’ thoughts or agendas or the broader political, social, or intellectual contexts of the late eighteenth century’ have any bearing on the so-called original public meaning of the Constitution.”

More importantly, Bouie contends that the Civil War “shattered the constitutional order” and that the “Americans who drafted, fought for and ratified the Thirteenth, Fourteenth and Fifteenth Amendments did nothing less than rewrite the Constitution with an eye toward a more free and equal country.” As historian Eric Foner contends, these amendments were a “second founding” establishing a “biracial democracy” as opposed to the “white republic” established by the original Constitution.[6] Indeed, Bouie says, the 13th amendment in addition to banning slavery provided, “Congress shall have the power to enforce this article by appropriate legislation” or [in the words of the Chicago Tribune at the time] seemingly limitless authority to “prevent actions by states, localities, businesses, and private individuals that sought to maintain or restore slavery.” Similarly, the 14th and 15th amendments expanded federal power to defend individual and voting rights.

“To take the Second Founding seriously is to reject a vision that binds us to the Constitution as it was in 1787. It is also to embrace a broader vision of the ‘framing’ of American democracy, one that looks to the reconstruction of the country after its near-destruction [in the Civil War] as much as to its birth and founding.”

Conclusion

I solicit comments identifying any questening of Judge Barrett on these issues and her responses.

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[1] Assoc. Press, A.P. Explains: Originalism: Barrett’s legal philosophy, Wash. Post (Oct. 13, 2020)

[2] Fandos, Barrett, Declining to Detail Legal Views, Says She will Not Be ‘a Pawn’ of Trump, N.Y. Times (Oct. 13, 2020).

[3] Rakove. The framers of the Constitution didn’t worry about ‘originalism,’ Wash. Post (Oct. 16, 2020).

[4] Rakove, Tone Deaf to the Past: More Qualms About Public Meaning Originalism, 84 Fordham L. Rev. 969 (2015). Presumably even more grounds for skepticism about originalism can be found in Rakove’s book on the subject: Original Meanings: Politics and Ideas in the Making of the Constitution,”

[5] Bouie, Which Constitution Is Amy Coney Barrett Talking About?, N.Y. Times (Oct. 16, 2020)

[6] Foner, The Second Founding: How the Civil War and Reconstructrion Remade the Constitution (W.W. Norton & Co. 2019); Caplan: What Reconstruction-Era Laws Can Teach Our Democracy, N.Y. Times Book Review (Sept. 18, 2019)(review of Roner book).

Pandemic Journal (# 31): What Will Be the New Normal?

The COVID-19 Pandemic has been so long and so thoroughly disruptive to what used to be our “normal” lives, we wonder what life will be like after the pandemic is over. Will it be a return to what we thought was “normal.”? I think not. We will start to engage in a new way of life with details to be negotiated among all people and institutions.

This was the point recently made by Fareed Zakaria.[1]

Zakaria’s Vision for the New World

The world that is being ushered in as a consequence of the covid-19 pandemic is new and scary. The health crisis has accelerated a number of forces that were already gathering steam. Most fundamentally, it is now blindingly clear that human development as it is happening now is creating ever-greater risks. The backlash from nature is all around us, from wildfires to hurricanes to pandemics, of which covid-19 may simply be the first in a series. The pandemic has intensified other trends, too. For demographic and other reasons, countries will likely see more sluggish economic growth. Inequality will get worse, as the big get bigger in every sphere. Machine learning is moving so fast that, for the first time in history, human beings might lose control over their own creations. Nations are becoming more parochial, their domestic politics more isolationist. The United States and China are headed toward a bitter and prolonged confrontation.” (Emphases added.)

“It is a dangerous moment. But it is also in times like these that we can shape and alter such trends. To complete the story of our future, we must add in human agency. People can choose which direction they want to push themselves, their societies and their world. In fact, we have more leeway now. In most eras, history proceeds along a set path and change is difficult. But the novel coronavirus has upended society. People are disoriented. Things are already changing and, in that atmosphere, further change becomes easier than ever. . . .” (Emphases added.)

“We could continue with business as usual and risk cascading crises from climate change and new pandemics. Or we could get serious about a more sustainable strategy for growth. We could turn inward and embrace nationalism and self-interest, or we could view these challenges — which cross all borders — as a spur to global cooperation and action. We have many futures in front of us. . . .” (Emphases added.)

The current pandemic presents . . . choices. We could settle into a world of slow growth, increasing natural dangers and rising inequality — and continue with business as usual. Or we could choose to act forcefully, using the vast capacity of government to make massive new investments to equip people with the skills and security they need in an age of bewildering change. We could build a 21st-century infrastructure, putting to work many of those most threatened by new technologies. We could curb carbon emissions simply by placing a price on them that reflects their true cost. And we could recognize that, along with dynamism and growth, we need resilience and security — or else the next crisis could be the last. . . .” (Emphasis added.)

The . . . tension between integration and isolation can be seen throughout the world. The pandemic is leading countries to look inward. But enlightened leaders will recognize that the only real solution to problems such as pandemics — and climate change and cyberwar — is to look outward, toward better cooperation. The solution to a badly funded and weak World Health Organization is not to withdraw from it in the hope that it withers away, but rather to fund it better and give it more autonomy so that it could stand up to China — or the United States — if a health emergency requires it. No single country can organize the entire world anymore. None wants to. That leaves only the possibilities of chaos, cold war, or cooperation.” (Emphasis added.)

“It is true, as the critics charge, that real international collaboration requires some element of collective decision-making. While it sounds sinister to some ears, it is, in fact, what countries do all the time. It is the mechanism by which we regulate everything from international telephone calls to air travel to trade and intellectual property to the emission of chlorofluorocarbons. There is no global “one world government,” and there never will be — it is just a phrase designed to scare people into imagining a secret army descending on them in black helicopters. What actually exists, and what we need more of, is global governance, agreements among sovereign nations to work together to solve common problems. It shouldn’t be so hard. Cooperation is one of the most fundamental traits in human beings, one that many biologists believe is at the root of our survival over the millennia. If we are to survive well into the future, cooperation will surely help us more than conflict.” (Emphases added.)

The imperative for cooperation is nowhere more evident than in the relationship between the world’s two greatest powers, the United States and China. We are entering a bipolar world — characterized by a reality in which two countries are simply head-and-shoulders above the rest in hard power. . . .” (Emphasis added.)

“The pandemic has made so many — nations and individuals — turn inward and become selfish. But an even larger crisis had the opposite effect on the greatest statesmen of the age. Twenty years after D-Day, CBS News invited the former supreme commander of the Allied operations, Dwight D. Eisenhower, to revisit the beaches of Normandy with Walter Cronkite and reflect. Eisenhower had seen the worst of humanity — the German Wehrmacht’s brutal fight to the finish — and yet, he had come out of that experience determined to try cooperation. As they sat overlooking the rows of graves in Normandy, Eisenhower said to Cronkite, “These people gave us a chance, and they bought time for us, so that we can do better than we have before. So every time I come back to these beaches, or any day when I think about that day 20 years ago now, I say once more, we must find some way to work to peace, and really to gain an eternal peace for this world.” (Emphasis added.)

“So, too, in our times, this ugly pandemic has created the possibility for optimism, change and reform. It has opened a path to a new world. It’s ours to take that opportunity or to squander it. Nothing is written [beforehand about what we should do].” (Emphasis added.)

Reactions

I concur in the need for more international cooperation on a multitude of issues.

In addition, the pandemic has shown the many deficiencies in the U.S. Everyone needs basic health insurance that is not tied to a specific employer which means if an individual is fired or laid off due to an economic downturn or another pandemic, the individual loses health insurance. We need a huge revision of the federal income tax laws to eliminate loopholes and other provisions that benefit only the super wealthy. We need to do something about income and wealth inequality. We need to have one federal election system that guarantees and enforces the right to vote for every U.S. citizen who is over 18 years of age, stops gerrymandering, and eliminates the electoral college and the equal representation of states regardless of population in the U.S. Senate. We need to eliminate racism and sexism in our institutions and society. Those are starters for a new normal.

An invitation is extended to readers of this blog to express their desires for a “new normal” after we get through this pandemic.

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[1] Zakaria, The pandemic upended the present. But it’s given us the chance to remake the future, Wash. Post (Oct. 6, 2020). This article is adapted from Zakaria’s new book, Ten Lessons for a Post-Pandemic World (W.W. Norton & Co. 2020).

Pandemic Journal (# 29): Current Reflections on COVID-19 Pandemic

As of 8:48 CST on September 20, more than 6,790,500 people in the U.S. had been infected with the coronavirus (the most of any country in the world) and at least 199,500 have died. In Minnesota, there have been 88,773 cases and 5,133 deaths. For the world as a whole the numbers are 30,675,000 cases and 954,427 deaths.[1] These statistics cause one to have sympathy for all those who have or had the disease and all those who have died from it and for all their family members and friends.

I only know two people who have had the coronavirus. One is a nephew who is recovering at his home in another state. The other is Nachito Herrera, a friend and a  famous Cuban-American jazz pianist in Minnesota, whose ICU care with a ventilator was covered by Minnesota media and who recently played several pieces, including his arrangement of “America the Beautiful,” on a public television program. And on September 25 he is scheduled at the Minneapolis’ jazz club, the dakota, for a concert.  [2]

On March 19, 2020, our condo building management instituted new regulations in response to the coronavirus: residents were required to report to the office coronavirus symptoms; all common areas in the building were closed; new practices of cleaning and disinfecting the common areas were adopted; and residents were requested to minimize the number of contractors and visitors entering the building. Since then other measures have been adopted and some of the common areas were reopened with usage restrictions.

Thus, for roughly six months my wife and I have been spending most of our time in our own condo, walking and biking outside on nice days and going to grocery stores for our food supplies. More recently we have been going to doctors and dentists for necessary care, a barber and hair stylist for necessary services and restaurants for occasional meals outside on patios. For example, on an afternoon last week we walked on Nicollet Mall to Barrio Restaurant for delicious tacos at a table on the sidewalk. The Mall, which is Minneapolis’ main street (in normal times) for restaurants, bars, stores and office buildings, now has covered all ground-level windows and glass doors with plywood, most businesses are closed and most of the time very few people are walking around.

For these six months we have not traveled anywhere outside Minneapolis and nearby western suburbs except for two trips to a nearby town: one for our granddaughter’s high school  graduation party and the other for a walk with our son and his family. Thus, we have a great desire to see other places, and this week we plan to  drive to the North Shore of Minnesota for two nights to see the beautiful fall colors of the trees.

We are grateful that we and our family have not caught the virus and are healthy and hope that that will continue. We worry about our sons and their families here and in Ecuador and relatives in Nebraska and elsewhere and pray that they stay healthy.

Last Friday Ruth Bader Ginsburg, a U.S. Supreme Court Justice, died. For many years she has been an inspiring voice against gender and other discrimination. Last night I watched “RBG,” a moving documentary film about her by CNN Films. The film reminded me of what a wonderful human being she was and how we all will miss her.

Then we have to return to reading about the horrible words and actions of President Donald Trump, who immediately said that this week he will nominate a woman to replace Ginsburg on the Supreme Court, and U.S. Senator Mitch McConnell, the Majority Leader of that body, who has said he will lead the effort to have the Senate confirm the nomination as soon as possible and maybe even before the November 3rd presidential election. Many people, including me, fear that the nominee will be very conservative and a threat to undo many of the principles that Ruth Bader Ginsburg struggled for. I, therefore, sent some money to a group supporting Amy McGrath, who is McConnell’s opponent in this year’s election.

Another example of Trump’s insensitive and harmful remarks happened on his visit to Minnesota last Friday when he “extolled at length the battle prowess of” Confederate General Robert E. Lee to audiences that contained descendants of Minnesota men who were members of the Minnesota Volunteer Infantry Regiment that played a vital role for the Union, many of whom were killed in the Civil War.[3]

This morning I attended a very moving virtual worship service at Minneapolis’ Westminster Presbyterian Church. The Scripture for the day was Samuel 3: 1-10 and Luke 2: 41-52 as the foundation for the sermon “Learning to Listen/Listening to Learn” by Senior Pastor, Rev. Tim Hart-Andersen. [4]

A new moving voice in the service was Joe Davis, a poet and Artist in Residence at the church, who previously said, “ I am a poet because I struggle desperately to express my soul’s deepest longings each and everyday—yet I never shy away from the fight.” He “grew up in a non-denominational Pentecostal church in North Dakota, where his parents were active members. In college at Minot State, Joe began to go on spring break service trips with the campus ministry. The campus pastor, who happened to be Lutheran, encouraged Joe to become a peer minister. Her mentoring helped him grow in faith and as a leader, and the ELCA [Evangelical Lutheran Church in America] became an important part of his life.” Now he “feels ‘a little bit of both ‘Lutheran and Pentecostal’ while also being “a strong believer in ecumenicalism—the unity of Christians across denominational lines.”[5]

This worship service was previewed early last week at a ZOOM conversation about aging in the Covid pandemic. Rev. Hart-Andersen said that spirituality should be addressed holistically and intentionally by focusing on your heart (writing hand-written letters or emails to your family and friends); your soul (developing and following a discipline for praying); your mind (reading); your body (exercising); and your love (serving, praying, advocating, writing and volunteering). Afterwards I told Tim that the activities for the “mind” should be reading, reflecting, studying or researching, writing about these activities and then sharing the writing with others. This is what I strive to do on most subjects of posts to this blog.

On today’s beautiful sunny 70-degree afternoon in Minneapolis my wife and I went for an enjoyable walk up Kenwood Parkway from the Walker Art Center Garden to the north end of Kenwood Park and returning on Mt. Curve Avenue to the western side of the Walker to Kenwood Parkway.

Tomorrow morning I will be having coffee with three friends from our condo building in our entertainment center, a practice I started several weeks ago. We have enjoyable conversations and, I think, all of us welcome this opportunity to have social interaction in this age of social distancing.

Another item on my ongoing agenda is preparing for the October 12th meeting of my men’s book group from Westminster Church. I will be leading the upcoming meeting to discuss the novel, “The Last Trial,” by Scott Turow. Most of our meetings this year have been by ZOOM although last month five of us met in the outdoor patio of one of our members; the other five members could not make the meeting. Reading and discussing books with other men is another important way to have needed social interaction.

These are the thoughts of one day of a human being’s living through the pandemic in Minneapolis, Minnesota, USA. I am managing to stay healthy in mind and body despite worries about the coronavirus and the headaches caused by Trump and fears over his supporters somehow damaging or disrupting the November 3rd election.

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[1] Covid in the U.S.: Latest Map and Case Count, N.Y.Times (Sept. 20, 2020); World Health Organization, WHO Coronavirus Disease (COVID-19) Dashboard.

[2] Bream, Minnesota pianist Nachito Herrera on surviving COVID-19: ‘This it the worst thing I’ve had in 54 years of my life, StarTribune (Sept.5, 2020); Nachito Herrera Concert at Minneapolis’ Westminster Presbyterian Church, dwkcommentaries.com (Jan. 7, 2015); Minneapolis’ Westminster Presbyterian Church’s Connections with Cuba, dwkcommentaries.com (∆an. 13, 2015)

[3] Van Ooy & Smith, Trump’s praise of Robert E. Lee gets pushback from Minnesotans proud of state’s role at Gettysburg, StarTribune (Sept. 19, 2020).

[4] The video of this service is  available in the church’s Archive of services, and a future blog post will examine details of the service.

[5] Joe Davis Poet, joedavispoetry.com; Parent, Poet in Residence at Redeemer Lutheran Church, zionbuffalo.org (March 2014).

George Floyd’s Family Sues City of Minneapolis and Four Ex-Officers Involved in His Death      

On July 15, attorneys for the family of George Floyd (by their trustee Kaarin Nelson Schaffer, a Minnesota attorney and resident of Hennepin County) sued the City of Minneapolis and the four ex-police officers involved in Floyd’s death—Derek Chauvin, Tou Thao, Thomas Lane and J. Alexander Kueng.[1]

Here we will review the public announcement of the case by the lead plaintiff’s lawyer, Ben Crump, the names of the other 11 plaintiff’s attorneys and the background of U.S. District Judge Susan Richard Nelson, who will preside over this case.

The 40-page Complaint has three counts. “Count I—42 U.S.C. §1983—Fourth Amendment Violations” is asserted against the four ex-policemen while counts II and III are against the City of Minneapolis: “Count II– 42 U.S.C. §1983—Monell Liability” and “Count III–42 U.S.C. §1983—Canton Liability.” A subsequent post will dive into the details of these counts.[2]

Attorney Crump’s Statement

“This is a crisis in Black America — a public health crisis. While all of America is dealing with the public health crisis of the coronavirus pandemic, Black America has to deal with another public health pandemic of police brutality. This is a teachable moment for America.”

In addition to the misconduct for the four ex-policmen, the lawsuit alleges that local officials “with deliberate indifference” have failed to correct the police department’s dangerous arrest practices and train officers properly in the use of force.

“This complaint shows what we have said all along, that it was not just the knee of officer Derek Chauvin on George Floyd’s neck. But it was the knee of the entire Minneapolis Police Department on the neck of George Floyd that killed him. The City of Minneapolis has a history of policies, procedures and deliberate indifference that violates the rights of arrestees, particularly Black men, and highlights the need for officer training and discipline.”

While not specifying how much the family will seek in compensation, Crump said, “This is an unprecedented case, and with this lawsuit we seek to set a precedent that makes it financially prohibitive for police to wrongfully kill marginalized people — especially Black people — in the future.” In short, the case is “the tipping point for policing in America.”

Crump said that how the city leaders react to the demands put forth by the Floyd family lawyers will have consequences. “Their political legacy will be defined by how they respond,” he said.

Other attorneys for the Floyd family, Antonio M. Romanaucci and L. Chris Stewart, also spoke . Ms. Stewart said,  “The Floyd family deserves justice for the inhumane way in which officers with the Minneapolis Police Department killed Mr. Floyd. The city has a responsibility to acknowledge the history and practices of excessive force and impunity with its police force, as well as shortfalls in officer training and discipline.”

Plaintiffs’ Lawyers[3]

The following two Minnesota attorneys are on the Complaint for the plaintiff: Jeffrey S. Storms of the law firm of Newmark Storms Dworak LLC and Michelle R. Gilboe of the law firm of Lewis Brisbois Bisgaard & Smith LLP. In addition, there are the following ten other attorneys for the plaintiff who are not Minnesota attorneys and, therefore, will have to be permitted to participate in this case (pro hac vice) by the Court:

  • Ben Crump of the Ben Crump Law firm of Washington, D.C.
  • Antonio M. Romanaucci, Bhavani Raveendran and Nicolette A. Ward of the Chicago law firm of Romanucci & Blandin, LLC.
  • William Pintas and Laura Mullins of the Chicago firm of Pintas and Mullins Law Firm;
  • Devon M. Jacob of the Jacob Litigation, Inc. firm of Mechanicsburg, PA;
  • Chris Stewart and Justin Miller of the Stewart Trial Attorneys firm of Atlanta, GA; and
  • Scott Masterson of the Minneapolis firm of Lewis Brisbois Bisgaard & Smith, LLP.

Judge Susan Richard Nelson[4]

The case was randomly assigned by the Clerk of Court to the 68 year-old District Judge Susan Richard Nelson, who served as U.S. Magistrate Judge for the District of Minnesota, by appointment of the Court’s judges, June 12, 2000, until she was confirmed as a U.S. District Judge of that court on December 22, 2010, upon recommendation of U.S. Senator Amy Klobuchar, nomination by President Barack Obama and unanimous confirmation by the U.S. Senate. She obtained her B.A. degree with high honors from Oberlin College and her J.D. degree from the University of Pittsburgh Law School. Her initial professional employment was with a Pittsburgh law firm (1977-80) and a New Haven, Connecticut law firm (1980-1983). In 1984 she moved to Minnesota and joined the Minneapolis law firm of Robins, Kaplan, Miller & Ciresi as an associate (1984-88) and then was promoted to partner (1988), where she served until she became a U.S. Magistrate Judge. At the Robins firm, her practice focused on civil trial practice involving complex product liability and mass tort lawsuits.

Conclusion

 After subsequent posts that will examine the details of the three counts of the Complaint, we will await to see what attorneys will be representing the defendants, any potential motions attacking the complaint and the rigors of pretrial discovery (requests for production of documents and responses, written interrogatories and responses, requests for admissions and responses and oral depositions) followed by any possible motions for summary judgment and decisions thereon. Then the case would move to trial. Of course, settlements are always a possibility at any point during this complex (and expensive) process.

======================================

[1] Reuters, George Floyd’s Family Sues Minneapolis and Four Officers Over His Death, N.Y. Times (July 15, 2020); Assoc. Press, Floyd Family Sues Minneapolis Officers Charged in His Death, N.Y. Times (July 15, 2020); Bailey, George Floyd’s family files wrongful-death lawsuit against City of Minneapolis and former officers, Wash. Post (July 15, 2020); Furst & Walsh, George Floyd family sues city of Minneapolis, officers involved citing ‘reckless disregard’ of civil rights, StarTribune (July 15, 2020); Treisman, George Floyd’s Family Files Civil Lawsuit Against Minneapolis And Police, Lawyers Say, MPR News (July 15, 2020); Attorney Ben Crump To File Civil Rights Lawsuit For Floyd’s Family, CBS Minnesota (July 15, 2020) (video of much of Crump’s statement).

[2] Complaint, Schaffer v. Chauvin, Case No, 0.20-cv-01577-SRN-TNL (D. Minn. July 15, 2020). Read the lawsuit filed by family of George Floyd against Minneapolis, four ex-police officers, StarTribune (July 15, 2020).

[3] Complaint at 38-40.

[4] Susan Richard Nelson, Wikipedia; Off the Cuff with Judge Susan Richard Nelson, The Oberlin Review (July 15, 2020).

Congress Fails To Pass Federal Police Reform Bills   

On June 24 and 25, the divisions between the Republican-controlled U.S. Senate and the Democrat-controlled U.S. House again emerged, this time to prevent, in all likelihood, the adoption of any federal police reform bills this year.

U.S. Senate[1]

On June 24 the Senate was prepared to debate The Justice Act, a bill authored by Senator Tim Scott (Rep., SC), that would encourage state and local police departments to change their practices, by limiting the use of chokeholds, requiring new de-escalation training for officers and better systems for tracking misconduct  and penalizing departments that did not require the use of body cameras. It, however,  would not alter the qualified immunity doctrine that shields officers from lawsuits or place new federal restrictions on the use of lethal force.

The Senate Democrats criticized this bill as insufficient to respond to the problem of systemic racism in law enforcement as the basis for an objection to consideration of the bill. This forced a motion for consideration that, under Senate rules, needs at least 60 votes to pass, but only had 55 votes with Democrats Doug Jones of Alabama and Joe Manchin III of West Virginia and Independent Angus King of Maine joining 52 Republicans. Majority Leader Mitch McConnell (Rep., Tenn.) voted against that motion so that subsequently he could make a motion for reconsideration by announcing his intent to switch his vote.

After this defeat, Senator Scott stated on the floor that he had had offered to give Democrats as many as 20 votes on proposed modifications to his bill that they were demanding, but that they had refused to accept. Privately, Democrats noted that revising the bill would have also required the approval of 60 senators, a threshold they feared they would not be able to meet.

It is still possible that the Scott bill could be brought up again this year in the Senate by the Majority Leader, Senator Mitch McConnell switching his vote from “Yes” to “No” on a motion for reconsideration.

In the meantime, on June 25 the Senate by unanimous consent separately passed a provision of Mr. Scott’s bill to establish a commission on the social status of black men and boys, tasked with recommending policies to improve government programs.

U.S. House[2]

 On June 25, the U.S. House passed, 236-181, the George Floyd Justice in Policing Act.

Representative Karen Bass (Dem., CA), the lead sponsor of the bill, said, “The legislation is the first-ever bold, comprehensive approach to hold police accountable, change the culture of law enforcement, empower our communities, and build trust between law enforcement and our communities by addressing systemic racism and bias to help save lives. Congressional Black Caucus Chair Karen Bass (D-CA), Senators Cory Booker (D-NJ) and Kamala Harris (D-CA), and House Judiciary Committee Chair Jerrold Nadler (D-NY) introduced the George Floyd Justice in Policing Act of 2020 on June 8, 2020. The legislation has 231 cosponsors in the House and 36 cosponsors in the Senate.”

“Under the George Floyd Justice in Policing Act, for the first time ever federal law would: 1) ban chokeholds; 2) end racial and religious profiling; 3) eliminate qualified immunity for law enforcement;[3] 4) establish national standard for the operation of police departments; 5) mandate data collection on police encounters; 6) reprogram existing funds to invest in transformative community-based policing programs; and 7) streamline federal law to prosecute excessive force and establish independent prosecutors for police investigations.”  In greater detail, the Act:

  • “Prohibits federal, state, and local law enforcement from racial, religious and discriminatory profiling, and mandates training on racial, religious, and discriminatory profiling for all law enforcement.
  • Bans chokeholds, carotid holds and no-knock warrants at the federal level and limits the transfer of military-grade equipment to state and local law enforcement.
  • Mandates the use of dashboard cameras and body cameras for federal offices and requires state and local law enforcement to use existing federal funds to ensure the use of police body cameras.
  • Establishes a National Police Misconduct Registry to prevent problematic officers who are fired or leave on agency from moving to another jurisdiction without any accountability.
  • Amends federal criminal statute from “willfulness” to a “recklessness” standard to successfully identify and prosecute police misconduct.
  • Reforms qualified immunity so that individuals are not barred from recovering damages when police violate their constitutional rights.
  • Establishes public safety innovation grants for community-based organizations to create local commissions and task forces to help communities to re-imagine and develop concrete, just and equitable public safety approaches.
  • Creates law enforcement development and training programs to develop best practices and requires the creation of law enforcement accreditation standard recommendations based on President Obama’s Taskforce on 21st Century policing.
  • Requires state and local law enforcement agencies to report use of force data, disaggregated by race, sex, disability, religion, age.
  • Improves the use of pattern and practice investigations at the federal level by granting the Department of Justice Civil Rights Division subpoena power and creates a grant program for state attorneys general to develop authority to conduct independent investigations into problematic police departments.
  • Establishes a Department of Justice task force to coordinate the investigation, prosecution and enforcement efforts of federal, state and local governments in cases related to law enforcement misconduct.”

It would make lynchings a federal hate crime, ban federal officials from using chokeholds, ban federal funds to state and local law enforcement agencies that do not bar chokeholds, bar law enforcement from racial and religious profiling, make it easier to prosecute police officers for misconduct and allow civilians to recover some damages if their constitutional rights are found to have been violated by police, a change to the judicial doctrine known as qualified immunity.

It should be noted that three Republican representatives voted for this bill: Brian Fitzpatrick (PA), Will Hurd (TX) and Fred Upton (MI).

 Conclusion

As a Democrat you supports various means of reforming policing in the U.S., I am disappointed that the Congress was unable to agree on such measures.

However, I think it was a political mistake for the Senate Democrats to block consideration of the Senator Tim Scott reform bill. As I understand what happened in the Senate, the Democrats had no objections to the bill’s provisions. Instead, they objected that the bill did not go far enough. Their objections could have been made during the debate on the Scott bill, with or without proposed amendments that probably would be defeated by the Republican majority. Moreover, by allowing the Republicans to approve the bill would allow the Democrats to provide political support to Republican Senator Tim Scott.

This assessment was shared by Marc A. Thiessen, a fellow of the conservative American Enterprise Institute, a former speechwriter for President George W. Bush, a Fox News contributor and a Washington Post columnist,  He emphasized that stopping such a debate in the Senate eliminated the possibility of having such a discussion in that body for the foreseeable future and even the possibility of having some Democratic amendments adopted. Thiessen claims that the bill already included some Democratic proposed additions: making lynching a federal hate crime, creating a national policing commission to review the U.S. criminal justice system, barring chokeholds by federal officers, withholding federal funds from state and local law enforcement agencies that do not bar chokeholds and that do not report use of non-knock warrants to the U.S. Justice Department. Indeed, according to Thiessen, Senator Scott had said he would vote to support  some of the proposed amendments.[4]

Such a Democratic strategy also would have avoided the embarrassing comment by Senator Richard Durbin (Dem., IL) that the Scott bill was “a token, half-hearted approach,” by an African-American man who personally had experienced police discrimination that compelled the subsequent apology from Senator Durbin.

Moreover, the Democrat-controlled House the next day adopted the more comprehensive reform bill which they wanted and which the Republican-controlled Senate undoubtedly will reject when it goes there.

============================

[1] U.S. Senate, Justice Act, 116th Congress, 2d Sess. (full text); U.S. Senate, JUSTICE Act (Just and Unifying Solutions to Invigorate Communities Everywhere): Section-by-Section Analysis,  116th Congress, 2d Sess.; Senator Scott, Press Release: Senator Tim Scott Delivers Fiery Speech on Senate floor After Senate Democrats Stonewall Legislation on Police Reform Across America (June 24, 2020); Senator Scott, Press Release: Senate Democrats Block Police Reform from Coming to Communities Across America (June 24, 2020); Edmondson & Fandos, Senate G.O.P. Unveils Narrow Policing Bill, Setting Up a Clash with Democrats, N.Y. Times (June 17 & 24, 2020); Edmondson, Senate Democrats Block G.O.P. Police bill, calling It Inadequate, N.Y.Times (June 24, 2020); Kim, Senate Democrats block GOP policing bill, stalling efforts to change law enforcement practices, Wash. Post (June 24, 2020); Balko, Both parties’ police reform bills ae underwhelming. Here’s why, Wash. Post (June 24, 2020); Peterson & Zitner, Senate Democrats Block GOP Policing Bill, W.S.J. (June 24, 2020); Editorial, The No Debate Democrats, W.S.J. (June 24, 2020); Bobi, Police Reform Stalls Out in The Senate, HuffPost (June 24, 2020).

[2] Representative Bass, Press Release: House Passes George Floyd Justice in Policing Act (June 25, 2020); George Floyd Justice in Policing Act (full text);  Congressional Black Caucus, Fact Sheet: George Floyd Justice in Policing Act ; House Passes George Floyd Justice in Policing Act, N.Y. Times (June 25, 2020); Andrews, House Passes Democrats’ Policing Bill, but No Path Seen for Deal, W.S.J. (June 25, 2020); Carney, Gridlock mires chances of police reform bill, The Hill (June 25, 2020); Brufke, Three GOP lawmakers vote for Democrat-led police reform bill, The Hill (June 25, 2020).

[3] The qualified immunity defense was established by the U.S. Supreme Court in Monell v. Department of Social Services (1978) that victims can’t recover damages from the city under the Civil Rights Act of 1871 unless the police misconduct was a breach of an “official policy or custom.” Subsequent Supreme Court cases have reaffirmed that standard to limit liability to “the plainly incompetent” and “those who knowingly violate the law.” (Malley v. Briggs (1986); Mccleary v. Navarro (1982), and just this month the Court refused to hear current cases challenging that standard. (Reuters, Supreme Court Rejects Cases Over ‘Qualified Immunity’ for Police, N.Y. times (June 15, 2020).)  As Peter Schuck, a professor emeritus at Yale Law School, pointed out, a simple amendment of that 1871 statute would eliminate this defense. (Schuck, The Other Police Immunity Problem, W.S.J. (June 24, 2020).) 

[4] Theissen, Democrats’ shameful vote against Tim Scott’s police reform bill, Wash. Post (June 25, 2020).

 

Pandemic Journal (# 24): What We Are Learning in the Pandemic

Peggy Noonan, a Wall Street Journal columnist, offers her thoughts on what we are learning in the coronavirus pandemic. Here are her main points along with reactions thereto.

Noonan’s Observations[1]

She says we have learned a lot. “How intertwined and interconnected our economy is, how provisional, how this thing depended on that. And how whisperingly thin were everybody’s profit margins. The well-being of the West Side block depends on human traffic, which depends on restaurants and bars, which depend on the theater being open. It was a George Bailey economy: every man on that transport died. Harry wasn’t there to save them, because you weren’t there to save Harry.” [2] “Every economy is, in the end, and if you’re interested in economics you knew this, but not the way you know it after the business catastrophe of 2020.”

“But the biggest things I suspect we learned were internal. No matter what you do for a living, when you weren’t busy introspection knocked on the door and settled in. Two different men, professionals, both blinked with surprise as they reported, unasked, that they can’t believe they have their college-age kids home again and they’re all together and they have dinner every night and play board games. They were so grateful. They had no idea this was possible, that it would make them so happy. That it had been missing.”

“People have suffered. They’ve been afraid. The ground on which they stand has shifted. Many have been reviewing their lives, thinking not only of ‘what’s important’ or ‘what makes me happy’ but ‘what was I designed to do?’ They’ve been conducting a kind of internal life review, reflecting on the decision that seemed small and turned out to be crucial, wondering about paths not taken, recognizing strokes of luck. They’ve been thinking about their religious faith or lack of it, about their relationships. Phone calls have been longer, love more easily expressed, its lack more admitted.”

“It has been a dramatic time. We have stopped and thought about our lives, and our society’s arrangements. We have applauded together, for the first time, those whose jobs kept our towns up and operating, from nurses to truckers. We’ve rethought not only what is ‘essential’ but who is important. All this will change you as a nation.”

“Here is what I am certain of. We will emerge a plainer people in a plainer country, and maybe a deeper one. Something big inside us shifted.”

“[Y]ou can almost hear people thinking eh, our time is finite, our money limited—maybe that’s not gray[hair]. it’s silver. . . . I like the simplicity of this.”

“The world has admired and imitated America’s crisp chic, but I see an altering of the national style. For reasons economic and existential a new simplicity is coming, glitz leaving.”

“We’re getting pared down. We’re paring ourselves down.”

‘The pioneer genes shall prevail, and women will focus on the essentials: nurturing their children in the arc of safety (homes and schools) providing food (driving to breadlines and food banks) and making do with what is already in the closet. Everything old will be suddenly new again.”

“America is about to become a plainer place. Maybe a deeper one, too. Maybe that’s good.”

Reflections

Do you agree with any of these observations?

Some of her reflections concern individuals and every-day life. I certainly hope that “America is about to become a ‘plainer place’ and ‘a deeper one.’”

Economically we certainly should have learned “how intertwined and interconnected our economy is, how provisional, how this thing depended on that. And how whisperingly thin were everybody’s profit margins.”

Noonan, however, fails to mention the big economic lessons of the pandemic for me and many others: the immense economic inequality in the U.S.; the many ways of racial injustice in the U.S.; and our horrendous health-care system. All of these problems require government action.

That, in turn, raises my concern over the future impact of the many, young, conservative federal judges who recently have been confirmed by the U.S. Senate, some in the midst of the pandemic, pursuant to Majority Leader Mitch McConnell’s agenda.[3]

More generally, the need for government action emphasizes my belief that many aspects of the U.S. system of government are obsolete: the Electoral College; every state having two senators with equal voting rights regardless of the state’s population; the U.S. Senate’s filibuster rule; the horribly complicated system of voting and its manipulation to suppress voting, including President Trump’s recent rantings against voting by mail.[4]

The Trump Administration’s inconsistent and wavering foreign  policies before and during the pandemic raise the question of what will become of the international system of institutions, treaties and laws that the U.S. helped to create after World War II to foster and preserve peace and human rights. In my opinion, we should be leading the world in reforming and modernizing this system, not tearing at its roots.[5]

All of these larger issues raise the issue of what can one individual do about them.

My answer. Carefully review candidates for office and vote for those who promise to work on these problems. Provide financial support to political parties and candidates as well as organizations that are supporting these reform measures. Advocate for individuals, organizations and policies involved in this effort.  (I choose to do my advocacy with this blog.)

Noonan appropriately mentions many people expressing gratitude for simple things in the midst of the pandemic. I  have gratitude for my wife, sons, their families and I being in good health and for my wife and I are not living in a senior-citizen retirement home. I am grateful for being retired with good savings and thus not worrying about keeping my job or finding a new one or about how I will be able to pay for food or the mortgage.[6]

I also am grateful for friends and family and have made efforts to reconnect with them.[7]

Like Noonan, I hope that people are “reviewing their lives, thinking not only of ‘what’s important’ or ‘what makes me happy’ but ‘what was I designed to do?’ They’ve been conducting a kind of internal life review, reflecting on the decision that seemed small and turned out to be crucial, wondering about paths not taken, recognizing strokes of luck.”

For a Christian, this means discerning your calling for a particular time and place and recognizing that your calling may change over time. This includes forgiving others for their wrongs as well as praying for forgiveness for your own misdeeds.[8]

I trust that I will continue learning about the world during this pandemic. Another of the many subjects I have learned something about are prior pandemics, especially the Flu Pandemic of 1918. [9]

==================================

[1] Noonan, A Plainer People in a Plainer Time, W.S.J. (May 22, 2020).

[2] Noonan apparently refers to brothers George and Harry Bailey, characters in the movie “It’s a Wonderful Life.” George was a wealthy banker who suffers various difficulties, including not being present to save his brother from drowning. As  a result, George contemplates suicide before being rescued by his guardian angel and friends. (It’s a Wonderful Life, Wikipedia.)

[3] E.g., Hulse, McConnell Has a Request for Veteran Federal Judges: Pleases Quit, N.Y. Times (Mar. 16, 2020; Hulse, Trump Picks McConnell Protégé for Influential Appeals Court Seat, N.Y. Times (April 3, 2020).

[4] See, e.g., these entries in dwkcommentareis.com: Search: filibusterU.S. Needs More Democratization (Feb. 14, 2020); Responses to Ezra Klein’s Democratization Thesis (Feb. 15, 2020); Open Letter to U.S. Senate from 70 former Senators (Feb. 29, 2020); Pandemic Journal (# 10): Wisconsin’s  Primary Election (April 10, 2020) (and comments thereto).

[5] E.g., Douthat, The End of the New World Order, N.Y. Times (May 23, 2020).

[6] See, e.g., these posts to dwkcommentaries.com: Gratitude I (Mar. 15, 2012);  Gratitude II (April 11, 2012); Gratitude III (April 12, 2014); Another Perspective on Gratitude; (Nov. 23, 2015); Other Thoughts About Gratitude. (Nov. 26, 2015).

[7] Pandemic Journal (# 8): Reconnecting with Family and Friends (April 8, 2020).

[8] See, e.g., these posts to dwkcommentaries.com: The Roads Not Taken (April 27, 2011); My General Thoughts on Vocation (Feb. 6, 2014); Other Scriptural Passages About Vocation (Feb. 17, 2014); My Vocations (Feb. 23, 2014); Why I do Not Want to Die at 75 (Sept. 25, 2014); What Is Your Call Story? (Feb. 28, 2019); My Call Stories (Mar. 4, 2019). See also List of Posts to dwkcommentaries—Topical: RELIGION; A Christian-Muslim Conversation About Forgiveness (May 15, 2017).

[9] See, e.g., the following posts to dwkcommentaries.com: Pandemic Journal (# 3): 1918 Flu (Mar. 27, 2020); Pandemic Journal (# 22): Other Reflections on the Flu Pandemic of 1918-1920 (May 17, 2020).

 

 

 

Pandemic Journal (# 20): Oprah Winfrey’s Challenge to the Pandemic Classes of 2020   

On May 15, Oprah Winfrey gave an inspiring online commencement address to all graduating high school and college members of the classes of 2020, the pandemic classes. Here is what she said.[1]

“[N]ever has a graduating class been called to step into the future with more purpose, vision, passion, and energy and hope.”

“Every one of us is now being called to graduate, to step toward something, even though we don’t know what. Every one of us is likewise now being called to temper the parts of ourselves that must fall away, to refine who we are, how we define success and what is genuinely meaningful. And you, the real graduates on this day, you will lead us.”

“It’s vital that you learn, and we all learn, to be at peace with the discomfort of stepping into the unknown. It’s really OK to not have all the answers. The answers will come for sure, if you can accept not knowing long enough to get still and stay still long enough for new thoughts to take root in your more quiet, deeper, truer self. The noise of the world drowns out the sound of you. You have to get still to listen.”

“Can you, the class of 2020, show us not how to put the pieces back together again, but how to create a new and more evolved normal, a world more just, kind, beautiful, tender, luminous, creative, whole? We need you to do this, because the pandemic has illuminated the vast systemic inequities that have defined life for too many for too long. For poor communities without adequate access to health care, inequality is a pre-existing condition. For immigrant communities forced to hide in the shadows, inequality is a pre-existing condition. For incarcerated people, with no ability to social distance, inequality is a pre-existing condition. For every person burdened by bias and bigotry, for every black man and woman living in their American skin, fearful to even go for a jog, inequality is a pre-existing condition.”

“You have the power to stand for, to fight for, and vote for healthier conditions that will create a healthier society. This moment is your invitation to use your education to begin to heal our afflictions by applying the best of what you’ve learned in your head, and felt in your heart. This moment has shown us what Dr. King tried to tell us. Decades ago, he understood that ‘we are caught in an inescapable network of mutuality, tied into a single garment of destiny.’”

“Whatever affects one directly affects all indirectly. If humanity is a global body, every soul is a cell in that body, and we are being challenged like never before to keep the global body healthy by keeping ourselves healthy in mind and body and spirit. As all the traditions affirm, the deepest self-care is at once caring for the human family.”

We “see this so clearly with essential workers. Look who turns out to be essential: teachers — your teachers, health care workers, of course, the people stocking grocery shelves, the cashiers, the truck drivers, food providers, those who are caring for your grandparents, those who clean the places where we work and shop and carry out our daily lives. We are all here because they, at great and profound risk, are still providing their essential service.”

“What will your essential service be? What really matters to you? The fact that you’re alive means you’ve been given a reprieve to think deeply about that question. How will you use what matters in service to yourself, your community and the world?”

Comments

I concur that “the pandemic has illuminated the vast systemic inequities that have defined life for too many for too long.”

It also has illuminated the many antiquated aspects of the American government that need to be eliminated or substantially reformed—the Electoral College, the U.S. Senate in which every state has two senators regardless of population, the Senate’s filibuster rule, the needlessly complex structure for voting that allows some states to suppress voting by minorities or citizens who favor the other political party from those in charge. The more specific need this year is prevent the re-election of Donald Trump and any attempt by him and his allies to subvert the election.

So too there are many aspects of the American economy that need to be substantially reformed, such as the immense differences in compensation of corporate CEO’s and the essential hourly employees. For example, the CEO of Target Corporation had total compensation of $21.6 million for fiscal 2019-20 while “essential” employees in its stores in April 2019 had their hourly wage boosted to $13 with the goal of reaching $15 by the end of 2020 and on March 22, 2020, were advised that they would receive an additional $2 per hour through at least May 2. [2]

=================================

[1] Winfrey, Virtual Commencement Address, Facebook (May 15, 2020); Bogei-Burroughs, Oprah to Class of 2020: ‘What Will Your Essential Service Be?’, N.Y. Times (May 15, 2020).

[2] Kennedy, CEO Pay Watch: Target’s Brian Cornell made $21.6 million last fiscal year, StarTribune (April 23, 2020); Reagan, Target raises its minimum wage to $13 per hour, with goal of reaching $15 by end of 2020, CNBC (April 4, 2019); Wilson, Target gives raises, bonuses to employees during coronavirus pandemic, WTHR 13 (Mar. 24, 2020).

 

 

Open Letter to U.S. Senate from 70 Former Senators

On February 25, the Washington Post published an open letter to the U.S. Senate  from 70 former senators (by my count, 48 Democrats, 18 Republicans and 4 Independents), including three from my State of Minnesota (Dean Barkley (Ind.), Mark Dayton (Dem.) and Dave Durenberger (Rep.)). [1]

The Letter’s Contents

“Congress is not fulfilling its constitutional duties. Much of the responsibility rests on the Senate. We are writing to encourage the creation of a bipartisan caucus of incumbent senators who would be committed to making the Senate function as the Framers of the Constitution intended.”

“As their first priority, the Framers explicitly entrusted all legislative responsibility in Article I of the Constitution: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” To the extent that Congress doesn’t function as the Framers intended, policymaking is left to the less democratic executive and judicial branches.”

“Examples of Congress ceding its powers to the executive through the years include the power to regulate international trade, the power to authorize the use of military force in foreign conflicts and, when the president declares national emergencies, the power of the purse. In addition, the partisan gridlock that is all too routine in recent decades has led the executive branch to effectively “legislate” on its own terms through executive order and administrative regulation. The Senate’s abdication of its legislative and oversight responsibilities erodes the checks and balances of the separate powers that are designed to protect the liberties on which our democracy depends.”

“Anecdotally, we have been told by sitting members that the diminished state of the Senate has left them doubting whether there is any point in continuing to serve, and it has caused potential candidates to question whether the reality of Senate membership is worth the considerable effort and expense of running for office.”

“We do not want to give the impression that we served in some golden age when the Senate operated like clockwork and its members embraced one another as one big happy family. Of course, that was never the case. Senators have always advanced strongly held positions and have vigorously engaged in legislative combat. All of us have vivid memories of tense times with difficult colleagues. But that is just the point. By design, the Senate is the place where Americans with all their competing interests and ideologies are represented and where champions of those positions attempt to advance their causes and work through their differences. Many call the legislative process ‘sausage making.’ That is a fair assessment. Legislating is often messy, but it is America’s way of holding together a diverse nation.”

“Our concern is that the legislative process is no longer working in the Senate. Several factors may be cited: Senate committees have lost responsibility for writing legislation. Rules allowing extended debate, a feature of the Senate that is essential to protecting the rights of minorities, have been abused as the filibuster and cloture have shut down action on the Senate floor. It is now commonly said that it takes 60 votes to pass anything in the Senate. This is new and obstructionist; it takes 60 votes to invoke cloture in the once relatively exceptional event of a filibuster. Filibusters are now threatened as a matter of course, and are too readily acceded to. Neither in committee nor on the floor do rank-and-file members have reasonable opportunities to advance their positions by voting on legislation.”

“We believe a bipartisan caucus of incumbent members that promotes a fair opportunity for senators to participate in meaningful committee work as well as on the Senate floor could help restore the Senate to its essential place in our constitutional system. Its members would need to stand firm in the face of what could be strong opposition from partisans who prefer politicians who take intransigent positions over those who champion a legislative process that celebrates compromise.”

“This does not have to be viewed as a judgment on today’s Senate leadership; instead, it’s a bipartisan act of shared responsibility and accountability for how we arrived at this point. We, who once held the office you now hold and who are confident that service in the U.S. Senate is as high a calling for you as it was for us, will stand up for you against any partisan opposition. We will do so publicly and repeatedly in whatever available forums. And we are convinced that many ordinary Americans will stand up for you as well, as they share our concern for the state of our government.”

“We know that accepting this challenge may put some of you at political risk. But we are also confident that each of you chose to serve in public life to advance the cause of a “more perfect union.” Our hope is that all of you will accept this challenge to advance that timeless and higher purpose. The Senate — and the proper functioning of our republic — are simply too important to be allowed to continue on their present course.”

Comments

Thank you to all 70 of the former senators for taking this public action. As a citizen observer, I agree that “the Congress is not fulfilling its constitutional responsibilities,” that “much of the responsibility rests on the U.S. Senate,” that “Congress has ceded too much power to the executive,” that “committees have lost responsibility for writing legislation” and that there has been “abuse of the [Senate’s] filibuster and cloture rules.”

However, regrettably it seems unlikely to this citizen that during the next eight months of a presidential and senatorial election campaign that there will be the creation of a bipartisan senatorial caucus to reform various Senate procedures.

Moreover, such an effort obviously assumes no changes in the basic constitutional structure of the Senate. For this citizen, a major defect of the current Constitution is the assignment of two senate seats to every state regardless of population and hence the over-representation of land, instead of citizens. That, of course, would require a constitutional amendment. One such amendment would keep two senators for every state under a weighted voting system granting larger votes to the two senators from California, for example. [2]

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[1] 70 former U.S. senators: The Senate is failing to perform its constitutional duties, Wash. Post (Feb. 25, 2020). 

[2] See The Antiquated Constitutional Structure of the U.S. Senate, dwkcommentaries.com.(Oct. 23, 2016). See also these posts to dwkcommentaries.com:  U.S. Senate’s Filibuster Rule Under Attack (May 15, 2012); Former U.S. Senator and Vice President, Walter Mondale, Supports Changing the  Senate Filibuster Rule (.May 15, 2012); District Court Dismisses Lawsuit Challenging Constitutionality of U.S. Senate’s Filibuster Rule (Dec. 22, 2012); U.S. Senate Adopts Modest Reform of Its Filibuster Rule (Jan. 24, 2013);U.S. Needs More Democratization (Feb. 14, 2020); Responses to Ezra Klein’s Democratization Thesis (Feb. 15, 2020). 

Responses to Ezra Klein’s Democratization Thesis

A prior post reviewed the recent Ezra Klein column (and related book) that argued for “reducing the polarization of American politics by democratization, including “proportional representation and campaign finance reform; . . .[making] voter registration automatic and. . . [giving] Washington, D.C., and Puerto Rico the political representation they deserve.” https://dwkcommentaries.com/2020/02/14/u-s-needs-more-democratization/

Two respected political commentators–Norman J. Ornstein, a noted author and resident scholar at the American Enterprise Institute, and Ross Douthat, a self-proclaimed conservative New York Times columnist–have discussed the Klein book, which was the basis for his column.

Norman Ornstein[1]

The Klein book cites research by political scientists showing that split ticket voting in presidential and congressional elections has virtually disappeared, that self-proclaimed independents now vote more predictably for one party over another and that such voters are now more motivated by their antipathy for the other party rather than affinity for their own. Related to all of this is the emergence of political mega-identities: “Republicans have become more cultlike and resistant to compromise or moderation” while “Democrats have an immune system of diversity and democracy.”

Ornstein also endorses Klein’s opinion that “baked into the political system devised by our framers is an increasing bias toward geography and away from people. As the country becomes more diverse, the representation and power in our politics will grow even less reflective of that dynamism. . . . At some point, the fundamental legitimacy of the system will be challenged.”

Therefore, in the book, Klein calls for eliminating the Electoral College and the Senate filibuster, allowing Puerto Rico and the District of Columbia to become states and taking steps to make the House of Representatives more reflective of the country. “Of course, even these measures , commendable though they may be, are a very heavy lift.”

Ross Douthat[2]

Douthat also takes on the more expansive statement of Ezra Klein’s opinions in his book, “Why We’re Polarized.”  [1]

This book, says Douthat, correctly debunks the theory that “the cure for division is just to educate people about the Right Answers to complicated policy disputes.”

Then Douthat counters Klein by relying on two other recent books, Christopher Caldwell’s “Age of Entitlement: America Since the Sixties” and Michael Lind’s “The New Class War: Saving Democracy From the Managerial Elite.” 

According to Douthat, Caldwell, another conservative author and New York Times contributing opinion writer,  sees the current polarization as due to the 1960’s reformers creating “through the Civil Rights Act, a structure of judicial and bureaucratic supervision and redress that gradually expanded into a rival constitutional system. This so-called  ‘Second Constitution’ is organized around the advancement of groups claiming equality, not the protection of citizens enjoying liberties. And so the claims these groups make must be privileged over and against both the normal legislative process and the freedoms of speech and religion and association that the original Constitution protects.”

Lind’s book, says Douthat, sees the current polarization as “the consolidation of economic power by a ‘managerial’ upper class'” and the resulting weakening of “any institution — from churches and families to union shops and local industries — that might grant real power to groups outside the gilded city, the Silicon Valley bubble, the Ivy League gate.” This phenomenon coupled with libertarianism of Regan and Thacher promoted “economic and social permissiveness . . . [and] a new class divide, between thriving meritocratic hubs and a declining and demoralized heartland, . . . [that] explains both the frequency of populist irruptions and their consistent futility.”

The above two books, however, in Douthat’s opinion, fail to acknowledge the importance of the “secularization and institutional-Christian decline” and resulting religious polarization as important trends contributing to polarization. which Douthat will address in a future column.

Note that Douthat does not address Klein’s point about American polarization being connected with the structure of American government giving greater weight to geographical units than to the number of people.

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[1] Ornstein, Why America’s Political Divisions Will Only Get Worse, N.Y. Times Book Review (Feb. 9, 2020).

[2] Douthat, The Many Polarizations of America, N.Y. Times (Jan. 28, 2020).