A few days in southern Utah . . .

. . . where a piece of the Trump administration’s environmental agenda is playing out, and where hordes of Americans (and foreigners) can’t get enough of the West. Fiery Furnace is a mind game

Posted in environment, National Park Service, Uncategorized | Tagged , | 1 Comment

Thoughts on visionaries

Linked from my other site: Ruminations on Rambling: Glimpes of genius in the Permian Basin

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Traveling the U.S.A.

I am traveling the country for two months, but politics is never far from my mind. See my other site, generally devoted to thoughts about bicycling, but in this case travels without Charlie: Temporary border in the Big Ben



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Virginia’s high court silently joins gerrymandering conversation

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Maps derived from Virginia Public Access Project

Gerrymandering has broken through the din of partisan grenade-throwing to become a top-tier issue of voter concern across the political spectrum. If we cannot fix this party- and incumbent-protection racket, We the People are coming to understand, we will cease to be a representative democracy in which one person/one vote has any meaning.

This term the U.S. Supreme Court is hearing political gerrymandering cases from Wisconsin, Maryland and North Carolina, and one involving Texas’ indefatigable effort to suppress the franchise. This week it received a second appeal from Pennsylvania Republicans of their state’s supreme court rejection of one of the most distorted U.S. House maps in the nation.

Meanwhile, the Virginia Supreme Court is about to decide a narrower question: whether the 2011 maps for the House of Delegates (drawn by Republicans) and Senate (drawn by Democrats) were so gerrymandered as to fail the state constitution’s requirement that districts be compact.

The court heard 40 minutes of oral argument in Vesilind v. Virginia State Board of Elections on March 1, nearly a year after a state district court in Richmond decided against the plaintiffs in 11 districts – five House, six Senate – and for the defendants, who in the case of the House plan had been joined by the House of Delegates and its speaker as intervenors.

“When a statute’s constitutionality depends on fact, the legislature’s factual determination will be set aside if it is clearly erroneous, arbitrary or wholly unwarranted,” wrote Circuit Judge W. Reilly Marchant. Relying on 1992 and 2002 Supreme Court precedents, he wrote that “if the evidence offered in support of those facts would lead reasonable, objective persons to reach different conclusions, then the legislative determination is ‘fairly debatable’ and must be upheld.” Marchant found the constitutional validity of the 2011 maps “fairly debatable.”

On appeal before the Supreme Court, the Vesilind plaintiffs contended that the trial court had erred by failing to shift to the legislature the burden to produce evidence of reasonableness. In fact, wrote A.E. Dick Howard, a University of Virginia law professor who was principal drafter of the current state constitution, the General Assembly submitted no evidence at all. (Judge Marchant had found the Senate in civil contempt for its failure to provide documents in discovery, a finding the Supreme Court vacated on grounds of legislative privilege.)

Howard, who with three other law professors submitted an amicus brief, wrote: “[T]he circuit court did not require the Legislature to identify any standard guiding line-drawing decisions to ensure compliance with the constitutional compactness command before declaring the issue to be ‘fairly debatable.’ The circuit court’s failure to do so permits the Legislature to claim that it satisfied the constitutional requirements without having to demonstrate that it made any bona fide attempt to do so.” [Italics in original.]

In the appellants’ brief, Wyatt B. Durrette, Jr., wrote: “The evidence before the trial court established that the Legislature subordinated the required criterion of compactness to discretionary criteria in violation of the Virginia Constitution. Without correction, the trial court’s erroneous decision allows the Legislature to continue undermining representative democracy and the Virginia Constitution.”

To the layman, the 11 districts, which include the 72nd House (a.k.a. the “toilet bowl”) but not the 73rd, are laughably not compact. The legal question turns on: how compact is compact enough?

For that legislatures and courts (as may be required) turn to Ph.D.s in legislative map-making, who have devised formulas to express deviations from a mathematically pure ideal: the circle. And courts, for their part, grow uncomfortable at the prospect of overturning legislative prerogative.

In the Vesilind trial, both sides presented learned map analysts to walk the court through mathematical tests that go by the names Reock, Polsby-Popper and Schwartzberg, all of which are used to arrive at a deviation from perfection. Said Vesilind, the 2011 maps fail the tests. Said the legislature, no they don’t. Said Judge Marchant, it’s debatable.

Said Chief Justice Donald W. Lemons at the Supreme Court, “Thank you.” There were no questions from the seven justices.

After the argument, Durrette held a briefing before plaintiffs, amicus lawyers and other supporters of OneVirginia2021, the Richmond nonprofit that is leading the state’s grassroots-based, nonpartisan charge against political gerrymandering (and my favorite charity).

Durrette, an eminent figure in the Virginia bar who served three House terms and ran unsuccessfully for attorney general and governor as a Republican, suggested that the high court’s decision will turn on whether to accept the math of the plaintiff’s expert witness, Michael McDonald, whose testimony the defense tried and failed to exclude at trial. McDonald had testified that the “degradation of compactness from ideal” could not be attributed to “required” criteria – the supreme mandates of federal law (equal population and Voting Rights Act compliance) or the state constitution’s “contiguous and compact.” Rather, the maps elevated certain “discretionary” criteria – such as economic, social, cultural, geographic, governmental jurisdictions, and – bingo – political beliefs, voting trends and incumbency.

Alternatively, Durrette said, the court could accept the legislature’s argument: it met the standards of compactness the Supreme Court upheld in Jamerson v. Womack and Wilkins v. West, which grew out of the legislature’s 1991 and 2001 maps. Even so, Durrette said during oral argument, those precedents do not apply in Vesilind. The earlier cases involved compactness standards in the context of Voting Rights Act requirements, which in the Vesilind districts are not applicable.

The Voting Rights Act is at the heart of a separate case involving 11 other House of Delegates districts. In Bethune-Hill v. Virginia State Board of Elections, the plaintiffs unsuccessfully argued before a federal district court in Richmond that the House had unconstitutionally “packed” minority voters into those districts by using a “floor” of 55-percent BVAP (black voting age population), thus diluting their representation across a wider number of districts. But on appeal, the U.S. Supreme Court ruled that the three-judge panel had used the wrong standard. (It reduced the districts at issue from the original 12 to 11.) On remand, the parties completed post-trial briefs in December, and the district court’s decision is pending.

In both cases, plaintiffs have asked the courts to toss the maps and call elections. At stake are not only the districts under review but of course those that are contiguous – that other word in the constitution’s map-drawing mandate.



Posted in gerrymandering, Supreme Court, U.S. Constitution, Virginia legislature, Voting, Voting Rights Act | Tagged , , , , | 1 Comment

That fantasy about the Second Amendment

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Government troops fire on Shays’ Rebellion (cite unknown)

I keep seeing these fairy tales about the origins of the Second Amendment — that its purpose was to guard against the tyranny of the government by enshrining an individual’s right to own a gun.

The Constitution was ratified in reaction to the weakness of the Articles of Confederation. A bunch of ragtag former colonies had somehow managed to wear down the British over five years under a skeletal cooperation agreement, during which the Continental Congress spent much of its time pleading for money from the 13 former colonies.

Then critics managed to convince the states to appoint delegates to a constitutional convention separate from the state legislatures, which were jealous of their sovereignty. They met in secret and came up with a plan that barely achieved ratification. Thus the United States was born.

Virginia and New York were the last of the 11 states that with varying reservations put the Constitution into effect (it required nine but practically could not have succeeded without those two), and Rhode Island and North Carolina were still recalcitrant. So during the First Congress, while Hamilton was constructing the executive branch and Madison was pushing legislation through the House to create a government from scratch, Madison also convinced Congress to take up the Bill of Rights (originally 12 amendments but finally 10).

The First and Fourth through Eighth are a logical piece of poetry about the rights of individuals. The Ninth and Tenth are about the relationship between the states and the federal government. The Second and Third dealt with problems that had confronted the colonies/states.

The Third, which we never talk about anymore, prevented the government from housing soldiers in your home — a cause of the revolution. It’s the forgotten amendment.

The Second was forgotten for more than 150 years. Its purpose was to ensure that the federal government, which barely functioned and was in debt (to Americans, British merchants, the French, etc.), had access to a standing army to confront enemies foreign and domestic. And there were both.

The British, still pissed about their humiliating defeat, continued to foment trouble on the western frontier. Domestically, throughout the post-war period, the states and their people were angry about paying taxes (some things never change).

In 1786-87, Daniel Shays led a band of rebels against the government of Massachusetts over taxes. Shays’ Rebellion drove General Washington out of retirement. The Constitutional Convention followed shortly.

So the Second, in a period while Congress hadn’t even gotten to the argument about whether to have an army, was intended to create an alternative: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The idea was that the states could be called upon to support the feds. It was not so that people would have the right to prosecute an insurrection against the government that THESE LEADERS HAD JUST CREATED.

After The Federalists were dispatched in 1800, Jefferson came to see that a standing army and navy was a good idea, handy for fighting on the shores of Tripoli. His successors found them useful for battling Britain and soon enough Indians. State militias were the backbone of the Civil War.

We went along that way, thinking no more of the Second than of the Third until the 1970s when, after an internal battle at the NRA that coincided with a period of domestic unrest and the truncated reign of a “law and order” president with paranoid tendencies, an argument was conceived that the amendment was about protecting your right to own a gun. That hadn’t been an issue for 350 years in a country whose expansion was forged at the barrel of a gun, individually and collectively.

And now we have a Gun Manufacturers Association whose purpose is to sell guns by stoking fear of your fellow countrymen. Next up: arm teachers. Because the only way to stop a bad man with a gun is to have a good man with a gun.

Tell that to Ronald Reagan’s Secret Service detail.

Posted in Bill of Rights, James Madison, U.S. Constitution, Uncategorized | Tagged , , | 1 Comment

Anniversary of a call to citizenship

jfkFifty-five years ago this week, I woke up in Arlington for the first time, a four-year-old transplanted from Texas. Upon finishing law school in Austin, my dad had answered Kennedy’s call, “Ask what you can do for your country,” and gone to work for his senator, Ralph Yarborough.

Dad became an expert in his area — the postal service, one of the enumerated powers of Congress, its purpose to knit together a far-flung republic.

The centrifugal forces that have often confronted this union seem especially strong. I know my dad would not have been inspired by this president, whose only consistency seems to be in appealing to the emotions that divide us, as his administration goes about piling comforts on the comfortable and afflictions on the afflicted. Dad, on the other hand, was proudest of the legislative projects that made things a little easier for constituents of neither means nor power.

Kennedy’s inaugural rejoinder was: “My fellow citizens of the world: ask not what America will do for you, but what together we can do for the freedom of man.” I do not hear in Kennedy’s current successor any thought of those under other flags, except as foils he uses to inflame us.

I remain depressed after the carnage in Las Vegas. As FBI agents search for a rationale, I feel certain they will not find one. Nor will they issue a statement that puts mass murder in context: This is a manifestation of a country that says, I need protection from Other. But there is no protection, nor is there Other. There is only Us, and we’re too afraid to see that.

I’d be wrong to assume Dad would no longer recognize this country, as he was a student of American history. He’s probably wearing that sardonic smile, mulling the folly of man, and optimistic that things will, some day, get better. Which is why we get up in the morning and work for it in our own ways, large and small.

Posted in Citizenship, Congress, U.S. Constitution, Uncategorized | Tagged

Denouement of ‘repeal and replace’

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John McCain’s thumb-down; Mitch McConnell’s crossed arms

As societies become more complex, the government (the instrument of our social compact) is called on to do more to arrange commerce – the exchange of goods and services. Market regulation is a necessary component of development, to ensure some transparency for all participants in an otherwise free market.

We regulate commerce to mitigate risk. The FDA weighs the safety and effectiveness of a pharmaceutical against the risk of not taking it. The Department of Transportation regulates every vehicle – cars, trucks, airplanes, trains – to protect the public from the market power of sellers and operators. The EPA regulates the quality of air and water, balancing the risk to people against private activity.

Insurance – a mechanism for the mitigation of risk – is available in nearly every sector of society, all policies in essence reducing personal liability. And every insurer is regulated, to ensure that the issuer can actually pay a claim.

Yet for decades America has been fighting over the provision of insurance for our most vital and personal concerns – having our health problems addressed without going bankrupt – and somehow this market gets caught up in ideology over “free markets.” There are no free markets (except the black market). Health insurance and medical care exist in a regulated free market. Only the VA has government-managed health care.

In the debate over the Affordable Care Act, at stake is whether all citizens can participate in the health insurance market at a price they can afford. The question invokes John Rawls’s “veil of ignorance”: What sort of system would you create if you had no idea where you would fit in it – whether you had money or not, whether you had health or not? Rational people choose a system that allows everyone to participate (rather than adding risk to being born poor and unhealthy). We recognize our self-interest and our moral (or perhaps ultimately selfish) interest in not having to watch people die on the street.

Suppose you are in charge of a hospital’s admissions. A little boy shows up in the ER bleeding from a severed arm. He has no insurance and no money. He’s not even an American citizen. He will die if you don’t admit him. What do you do? As a society we’ve decided: admit him.

Then the question is, who pays for it? The answer, consistent with our social compact and the financing principles of Medicare and Medicaid, is that the healthy and the economically better-off pay more. The ACA, like intermediate programs enacted over the past 30 years (coverage for poor children, the prescription drug benefit), is an attempt to include more people in a risk-sharing market.

For decades the Republican Party has opposed any system that would allocate health care by any means other than one’s personal ability to pay. The GOP opposed Medicare (the most effective poverty-reduction program ever), though 40 years later, in 2003, it sponsored the prescription-drug benefit. For seven years, it has fought to destroy Obamacare by every means available.

Today the party’s effort apparently came to a humiliating end by a single vote on the Senate floor, at 1:30 a.m. After failed attempts to repeal taxes on the wealthiest 5 percent of households by slashing Medicaid, Majority Leader Mitch McConnell’s final proposal was a bill to pull the legs out of the system, by ending the requirement that employers offer insurance and employees have it. That would have led to the collapse of the individual market, which before Obamacare functioned arbitrarily to suit the need of insurance companies seeking to mitigate their own risks.

With passage, millions of Americans might have risen up against the party, which in all its time in opposition never considered either a replacement or addressed comprehensively the critical question: Who pays for the care for the little boy who arrives at the ER?

It will turn out to be a blessing, provided the party inquires into what ails and acts to fix our dysfunctional health care system, which costs twice as much with less benefit than that of any other industrialized country. Candidate Trump promised better insurance at lower cost. Whether his party will take up that promise remains to be seen.


Posted in Congress, Obamacare, Uncategorized | Tagged , ,