Sunday, October 31, 2010

Court of Fools: Episode 2

Episode 2: Everson v. Board of Education

Year: 1947
Majority: Hugo Black
Vinson Court in 1953*
Joined by: Fred M. Vinson
                 Stanley F. Reed
                 William O. Douglas
                 Frank Murphy
Dissent: Robert H. Jackson
Joined by: Felix Frankfurter
Additional Dissent: Wiley B. Rutledge
Joined by: Felix Frankfurter
                 Robert H. Jackson
                 Harold H. Burton

This is an interesting case in that all of the Justices seemed to agree on a poor interpretation of the Constitution. Not only was their interpretation poor in that it goes beyond what the document actually contains, but the impacts of the interpretation were muddied enough that they couldn't even agree on how to apply it.

The case centered around a New Jersey school district that used tax money to reimburse parents for the cost of sending their children to school via public transportation. This reimbursement went to parents of children who attended both public schools and private religious schools. A taxpayer in the district sued arguing that this violated the establishment clause of the First Amendment: "Congress shall make no law respecting an establishment of religion." The Court ruled 5-4 that the New Jersey program did not violate the Constitution, which is the right call. However, the opinions issued in the case set an unfortunate precedent regarding the establishment clause.

In 1802, Thomas Jefferson wrote a letter to the Danbury Baptist associate in Connecticut in which he sought to assure them that even though the First Amendment only mentioned Congress, they should not fear religious repression in their state. In that letter he first wrote about the now famous "wall of separation between Church & State". In 1947, Black functionally wrote that line into the Constitution in the majority opinion. Interestingly enough, all of the dissenters also agreed with his assessment of the establishment clause.

Yet, the Constitution did not create this wall, America was a religious nation from the beginning and in fact Jefferson himself mentions our "Creator" and "Nature's God". The idea was to eliminate the religious turmoil and oppression that had caused many of the original colonists to leave Europe. It is a fine line between establishing a national religion and merely supporting the religious foundations that have been with this country since its birth. It would seem that the idea of a "wall" would be a way of removing the need to walk that line and minimize the chances that the government would cross into establishment territory by cordoning off religion entirely. That "wall" was erected by all nine members of the Court.

The disagreement was over how that wall should be applied with regards to the New Jersey program. The majority felt that the program was not an establishment of religion and merely support for citizens who were engaged in their own religious practices. However, the dissenters pointed out that a "wall" between Church and State should surely prohibit New Jersey from using government money to aid students in getting "the very thing which they are sent to the particular school to secure, namely, religious training and teaching." It is amazing that the majority would make up a new component to the Constitution and then ignore it in the very same opinion. While all of the Justices were mistaken in their zeal to erect the "wall", at least the dissenters had the right idea about what a wall actually is.

~ Another Guy

*This picture was taken after two of the Justices had been replaced. I apologize to Justices Tom Clark and Sherman Minton but they will just have to stand in for Rutledge and Murphy.

Thursday, October 28, 2010


It is interesting to see some Republicans fighting for their seats in congress based upon the notion that they are actually for smaller government. The Emergency Economic Stabilization Act (more commonly known as the Bailout) passed with 91 Republican representatives and 34 Republican senators voting for it. Not to mention being signed into law by a Republican president.

~ Another Guy

Monday, October 25, 2010

Court of Fools: Episode 1

In this new series, I will be highlighting examples of ridiculousness from our court system.

Episode 1: Wickard v. Filburn

Robert H. Jackson authored the majority opinion
Year: 1942 
Majority: Robert H. Jackson 
Joined By: Harlan F. Stone
                 Owen J. Roberts
                 Hugo Black
                 Stanley F. Reed
                 Felix Frankfurter
                 William O. Douglass
                 Frank Murphy
                 James F. Byrnes 
Concurrence: None 
Dissent: None

During the Great Depression, the government imposed a limit on the number of acres that a farmer could use to grow wheat in order to prop up the market price. A farmer by the name of Roscoe Filburn was growing more than the allowed acreage. He argued that since he was only using the wheat for consumption on his farm as chicken feed, it never entered the market and could not be regulated as interstate commerce.

The Supreme Court disagreed and argued that if he did not grow that wheat himself, he would have to purchase it on the open market. As such, his non-action in the market had an effect on interstate commerce and was subject to regulation. The Court held that the action itself was not the determining factor in what constituted interstate commerce, but whether the activity "exerts a substantial economic effect on interstate commerce".

The next time that you decide to plant a vegetable garden in the back yard, remember that the government has legal precedent to pass a law prohibiting it. If grow your own vegetables anyway and don't buy them at the supermarket, the government just might fine you and make you burn your garden. Thanks fools!

Note: While all of the justices signed on to this opinion, as the author of record, Jackson gets the jester's cap in this installment. It is also worth noting that all but two of the Justices in this case were nominated by F.D.R.

~Another Guy

Saturday, October 23, 2010

What is Social Security?

When most Americans refer to "Social Security", they generally mean the monthly payments that retirees receive from the government. That particular program is called the Federal Old-Age, Survivors, and Disability Insurance (OASDI) and was enacted in 1935 and has been amended many times since. There is a lot of debate around OASDI ranging from concerns about its long term solvency to ideological differences over its very existence. However, it would seem that all too often its creation as an insurance program seems to be forgotten.

During the 1930s, the average life expectancy did not reach the full retirement age of 65. Hence the program was meant as an insurance policy in case someone outlived their ability to work and had no steady source of income. Setting aside the controversy of such an insurance program in the first place, it is hard to reconcile today's system with the original intent of the program. OASDI is no longer viewed as an insurance plan, but rather as a form of guaranteed retirement income. Since current life expectancies in the U.S. are more than ten years above current full retirement age, it seems like less a plan for "what if" and more for "when".

This presents a problem for a program designed to work as an insurance policy. For example, homeowner's insurance only works because not everyone's house burns down. Premiums are kept low because many people pay in, but only a few ever need the benefits. If it was a pretty good chance that everyone's house was going to burn down, the insurers would have to raise premiums to cover the payouts. But if almost everyone is going to receive a payout at some point, then almost everyone would have to pay a premium equal to that payout. At some point, homeowners are going to begin wondering why they have insurance at all and don't just save the money that they would have paid towards premiums to cover the eventual loss of their home.

And to some degree, that is where we stand today. People are asking questions about whether they would receive a higher rate of return with a private program or with a government one. Many are concerned about whether taxes will go up or benefits will go down or if there will even be any benefits at all when they retire. It is clear that something needs to be done. Yet, before any real debate can begin, it would probably be useful to determine just exactly what the program is supposed to be, an insurance policy, or a retirement plan.

~ Another Guy

Wednesday, October 13, 2010

A Change In Voting System?

As the 2010 midterm elections approach, it is worth taking a look at just how the new members of Congress will be elected. The specific rules of nominating and voting for Congressional candidates in the United States varies from state to state. For the most part, there are two major parts to every election cycle: a primary and a general election.

The primary is used to determine which candidates will appear on the ballot in the general election and the process differs slightly depending on the state. For most states, there is a primary vote held for each major political party, the winner of each will be placed on the general election ballot. Independent and minor party candidates usually have to obtain a certain number of signatures in order to appear on the final ballot. Despite differences in the way in which the primary election is held, the number of signatures required, and other logistical considerations, the overall pattern is virtually the same (except for Louisiana and Washington state which hold a very different kind of primary*).

The general election is virtually the same throughout the U.S. and is operated with the Plurality Voting System, also known as First Past the Post. In this system, the candidate who receives a plurality (more than any other candidate but not necessarily a majority) of the votes is declared the winner.

There are a number of critiques of this system that appear from time to time depending on the political landscape. One of the biggest potential issues is that of vote splitting. This occurs when politically similar voters split their votes among multiple similar candidates and increases the chances of a single, dissimilar candidate winning the election. One of the more recent and well known examples of vote splitting occurred in the 2000 Presidential election. Ralph Nader was considered by many pundits to have been a spoiler candidate and received votes that would otherwise have gone to Al Gore. There is speculation that had Gore received those votes instead of Nader, George Bush may not have won the extremely close election.

Another criticism laid against Plurality Voting Systems is that they encourage strategic voting. Strategic voting is voting for a candidate other than one's preferred choice in order to prevent the victory of a candidate who holds opposing views. While this can take many forms, one of the most common is in response to concerns over a split vote. In the 2000 election example above, a Nader supporter might cast a vote for Gore because while he might find a Nader victory ideal, he views a Bush win as unacceptable. He is willing to compromise on a lesser candidate (Gore in this example) rather than risk a Bush victory. This can also be seen as stifling competition from independent and third party candidates whose supporters might not be willing to risk having an ideological enemy win even if it means not voting for the candidate who most accurately represents them.

These concerns seem very apparent in this election season with the emergence of the Tea Party movement. A prime example is New Jersey's 3rd Congressional District. Former Philadelphia Eagle Jon Runyan (R) is challenging incumbent John Adler (D) in what appears to be a very tight race. Another candidate, Peter DeStefano is running as a Tea Party candidate and could become a spoiler if he draws enough otherwise Republican votes to allow Adler to keep his seat. This causes voters who might identify with DeStefano to make a rather unpleasant choice: do they vote for the person they really want in office, or do they vote for Runyan just to unseat the Democrat?

One possible solution to this situation is a somewhat radical change to the voting system, removing the current primary and general elections and replace them with Instant Runoff Voting. A runoff vote is basically what the general election is in Louisiana and Washington, a vote where only the two front runners remain. An Instant Runoff is where all of the candidates are listed on one ballot and voters rank them in order of preference on election day. Once the ballots have been collected, everyone's top choices are tabulated and the candidate receiving the fewest votes is eliminated. Everyone's top choices are then tabulated again, except if the top preference on a ballot is eliminated, the next highest preference is used instead. Once again, the candidate with the lowest number of votes is eliminated. The process continues until only two candidates are left and the won with the highest vote total is declared the winner.

The numbers represent the preference of the voter with 1 being the most preferred.
There are a number of benefits to an Instant Runoff. There is no longer a need to worry about a spoiler candidate. In the above example from NJ, a Tea Party supporter would have no concern over voting for his preferred candidate. He would simply rank DeStefano as his first choice and Runyan as is second. If DeStefano didn't have enough votes to win, then he would functionally be able to shift his support to Runyan. There would also no longer be an incentive to vote strategically. Voters would be free to rank their choices according to whom they really want without fear of handing victory to an unacceptable candidate. There is also a logistical benefit in that states who currently run primaries elections would no longer bear that expense. If a political party wants to limit who can carry the party's official endorsement, they can run the primary or determine how they would like to determine that endorsement. Each state would merely have to set criteria for candidates to be placed on the general election ballot, whether through signature collection or another means.

Overall it would most likely be an improvement over the current process and allow voters to cast their votes for their preferred candidate without worrying about the impact of the system. It would probably also help to reduce candidate “drift”, where a politician moves to the edges for a primary to win support of the base, and then slides back to the center for the general election. Only one election day would mean that the candidate must choose whom he wants to appeal to most without being able to change stances for the next round. In any case, there is little chance of implementation as it might change the current party structure. That would certainly upset the establishment. Although that might make an even more compelling argument to consider it.

~ Another Guy

*These two states have a Non-partisan Blanket Primary in which all prospective candidates are placed on one primary ballot and only the top two vote getters are placed on the general election ballot.