Every election I attend, I leave the office with a nice sticker that says “I Voted!”, a reminder that I participated in the process. There were a few years when I didn’t get a sticker—instead I received a lollipop (not kidding), or a pen. The pens were nice, the lollipops were decent. All of them were meant as a reminder that participating in the American experiment truly meant something. All of us, every one of us, had some level of say in what will happen next in our form of government.
This is true from our local elections for city council to a race for the U.S. Senate. The Supreme Court would like to change all of that. Using the independent state legislature theory, the Supreme Court would assert that your vote could be completely meaningless and only matter if you are in the right geographic areas, as drawn by your state legislature out of the last census. This matters greatly because Republicans have spent decades packing and cracking districts in order to make sure they maintain majorities in many state houses. As much as we may want to, just voting harder with higher turnout won’t matter as much if the districts are drawn against us. In fact, you could win a sizable portion of a state vote and still not win enough votes in a state house because of the way these districts are drawn, leading to what we think of as “blue” states for president sending GOP electors to determine the president. The end result? Welcome to Republican dynasties and Republican control, and say hello to the end of representative government.
It’s been a long time since the 17th Amendment to the Constitution, an amendment that provided for direct election of senators rather than having senators elected by state legislatures. With the way the Supreme Court seems to be working, you’ll find their general attitude would be that if it weren’t a constitutional amendment, they would start yelling about the framer’s intent.
Framer’s intent from a debate standpoint
I know there are many of us here at Daily Kos who spent part of our wayward youth in tiny rooms on Fridays and Saturdays—or traveling every weekend lugging giant file boxes for those of us older, or on laptops and tablets for the younger ones of us—participating in policy debate.
One of the lines of attack deployed by a negative team that is not adequately prepared to address a case using the affirmative is that the affirmative case goes “beyond the framer’s intent.” This is their way of saying, “I don’t think this case is actually justified,” or “I didn’t prepare for this possibility.” As a judge over the years, I admit I almost never buy the argument. There are a few times where an affirmative case clearly is beyond the scope of a framer’s intent, but the truth is that as long as the affirmative case addresses the question at hand, the framers themselves have no right to control the solution.
In other words, if the question is about prison reform and the affirmative case is about requiring cars to not operate if they detect alcohol in the air, then make the case—I’m all about it. Framers probably didn’t imagine it, but I could see how it would prevent crime and lower prison populations as well as save lives. Meanwhile, if an affirmative makes the case that we should fund scuba diving to encourage prison reform, then yes, that does go beyond framer’s intent.
This is where the Supreme Court’s view is so skewed from reality. Being so bound to framer’s intent causes us to make major errors in what was possible for the framer to even imagine, and whether or not a solution would be viable.
New solutions become available all the time. At the time of the writing of the Constitution, bullets had not even been invented, as an example. Coming in much later in 1826, the bullet revolutionized a lot of the thought around what ownership of weaponry meant. The Seven Amendment, which provides for the right to a jury trial for all matters above $20, is a difficult one—so difficult that due to the current value of $20, if everyone involved in such cases were to demand a jury trial, we would bankrupt the system. Cash bail and holding alone are more than $20. Does incarceration today match the values of the way the framers saw the future? Doubtful. They didn’t imagine inflation as a force at the time because their understanding of the future economy wasn’t really thought out.
We sometimes put people on a pedestal for their profound thoughts to discover they were not all perfect. It is our inability to understand that the Founding Fathers were, in fact, fallible that can get us in a lot of trouble. We wax romantic about George Washington and Thomas Jefferson without discussion of their slave ownership. We probably don’t talk much about Robert Morris Jr., the Founding Father who died after shoving a whale bone up his own penis in an attempt at a makeshift catheter so that he died of infection. George Washington said he’d free his own slaves, and he didn’t.
The problem is that our court system views the constitutional framers not as men, but as Greek heroes, demigods who cannot be questioned.
‘Vote harder’ is not a full solution
Here is the absolute truth right now: should the Supreme Court move on this and side with legislators, the only thing stopping this will be Democratic retention of the House. Why? Because then you will have a House of Representatives, the one that counts the votes of the states as the very last point of checks and balances against a system run amok where state legislators overturn the will of their own residents to send slates to D.C. that do not match their own vote.
Can you imagine a year where the Democratic candidate wins Michigan by 6+points and yet, Michigan sends Republican electors to D.C.? Prepare for that possibility.
The other option: States and voters will have to work much harder to do whatever they can to elect secretaries of states and state legislators who will not tolerate these positions. Frankly, that may mean getting Democratic voters to meddle and wipe out radicalized Trump-supporting Republicans in some state primaries in order to have elected officials who at least respect the will of the public, even if it goes against their own personal view. We are running low on the number of those elected, but it may matter.
Due to voter suppression techniques, just telling people to go out and vote is not a solution. You have to give them a way that their vote generates results.
We can do this together
The one thing we have right now is each other. We must turn to each other when we need it, support each other, respect each other, and help each other in every way we can. Do you live in a solidly Democratic district in your state and you are aware of another district that is more difficult, but not impossible? Try to help. Do you see a chance for someone to win a position in your state house? Feel free.
I hate to break it to anyone sending out demands for money based on the idea that court decisions should make me want to give to their campaign. If you are an incumbent, tell me what you’ve done and what you will continue to do; if you are a candidate, tell me what you plan to do immediately. Give me something concrete. The time for waiting is over. The time for action is now.
To that end, I’d like to thank the senators who are in safe space states that have taken time to come to Kansas to fight for the rights of women. They haven’t asked for money for themselves. Instead, they’ve dedicated themselves to raising funds for Planned Parenthood, to outreach efforts, and to public awareness.
We can and must do better.
That’s how we can connect through our actions. Money isn’t enough, and if we are going to judge ourselves by the money we raise, then we have already lost focus.
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