Gun Violence in Perspective

Following the school shooting in Newtown, we were told repeatedly that this time our response would be different. There’s something about mass shootings that capture our attention more than the same number of people being killed in separate encounters. That the victims were children makes the situation impossible to ignore.

Over the last month we have encountered claims that the interpretation of the 2nd Amendment has changed throughout American history; that the 2nd Amendment was a mistake; that the Black Panthers influenced our current interpretation of the 2nd Amendment; that the citizen’s right to possess military style assault rifles was exactly what the founding fathers had in mind. We’ve even seen epic tirades (please watch the whole thing – I’ve never seen anything like this on “normal” TV).

Did you catch that? Over 11,000 gun murders last year in the United States. That’s over 30 murders every single day. That’s more than Newtown – every single day! But is the number accurate?

It turns out 2009 is the last year we have good data for and the numbers are consistent for that year at least.

In my efforts to find reliable and recent data on gun related deaths, I came upon a fascinating project to crowdsource the number of gun related deaths in the country on a rolling basis. Since 14 December 2012, there have been nearly 700 such deaths in the country – on track to be more than 10,000 yet again.

For the sake of comparison, Canada has averaged fewer than 200 gun homicides per year over the past decade (1/7th the US rate). In England and Wales, the figure is just over 50 (1/36th the US rate). In the US, almost as many people are gunned down in a single day as in a year in England.

And for all the military hawks out there, the total number of military fatalities in Iraq and Afghanistan for all coalition troops since 2003 and 2001 respectively is 8,058. The number of people killed by al-Qaeda terrorists on September 11, 2001 was 2,977.

This is more than a mental health issue of lone gunmen. This is an epidemic.

Why I Am not Voting

As a New Yorker, I know that my state is a lock, so I’m going to maximize my vote by not using it.

I support Barack Obama for the Presidency, but hope he loses the popular vote. As much as I want the President to complete a second term in office, any loss in legitimacy would be offset by the prospects of replacing the Electoral College (EC) with a national popular vote.

Until now, the EC has disproportionately benefited smaller and more rural states, which tend to be Republican. Only if the American right feels cheated by the electoral system, can we begin to have a meaningful discussion about reforming it.

Americans across the political spectrum are in favor of replacing the EC with a popular vote, but this sentiment does not carry over to our elected leaders. Whereas Democratic officials have publicly expressed support for selecting the President through the popular vote, Republican lawmakers have been fully aware that this would eliminate the disproportionate power given by the EC to their states.

If President Obama were to capture at least 270 electoral votes, but lose the popular vote, all that could change. It would send the American right into such a tizzy that instead of focusing on voter suppression, birth certificates and secret religious convictions, they may turn their ire at the electoral system that elevated the man they so dislike, once again, to the highest office in the land.

This will undoubtedly decrease Barack Obama’s legitimacy as President, should he win, but this is the man that since day one of his Presidency has been deemed illegitimate as their leader and as an American by significant portions of the American right. No electoral mandate will be enough to win these people over. Should conservatives feel that they have lost something as a result of the EC, then, and only then can we begin to reform our electoral process to achieve a popular vote.

I’ve already gone into detail about how and why we should effectively dismantle the current Electoral College system (it doesn’t even require altering the Constitution). Had my vote been from Ohio, I’d be out on the streets, banging my drum. Unfortunately, my vote is from NY – it will not matter – and that is a shame. This is about convincing all (enough) Americans that the popular vote is a good idea.

I know promoting this sort of behavior is risky. It assumes that Obama will win the EC. It assumes he will take Ohio and other key swing states. It assumes that the loss in legitimacy would not make Obama a 4-year lame duck. If, in the end, Romney gets the minimum 270 electoral votes and also wins the popular vote by one vote, I will punch myself in the face and stop blogging.

How to Get Rid of the Electoral College Without Abolishing it

The Electoral College (EC) is a lot like the weather in that, as Charles Dudley Warner said, everybody complains about it, but nobody does anything about it. For once, it seems that people are doing something, but not in the conventional manner.

In national surveys, Republicans, Democrats and independents have expressed overwhelming support for getting rid of the EC. The conversation typically ends when people consider how difficult it would be to pass a Constitutional Amendment to abolish the EC. As I have recently discovered, however, no such Amendment is required and the EC can still exist under a system that adheres to the popular vote.

Article 2, Section 1, Claus 2 of the US Constitution gives states the power to decide how to apportion their EC votes. This clause contains the seeds for the EC’s demise – and it would be achieved through an interstate compact. Jigga what?

An interstate compact is essentially an arrangement made between two or more states to work together on a particular issue. The best example of this is the Port Authority of New York and New Jersey, which operates most of the NYC metropolitan area’s airports and seaports, and important transportation infrastructure and real estate (like the World Trade Center site).

Starting in 2007, states began using their Constitutional rights to subvert the EC by ratifying what has come to be known as the National Popular Vote Interstate Compact (NPVIC). States that implement the NPVIC agree to give all of their electoral votes to the candidate who wins the national popular vote, regardless of the winner in their own state.

This means that as soon as the NPVIC has as many states as is required to achieve an EC majority (currently 270 votes), the rest of states do not matter. You do not need to convince every state sign on to the NPVIC – only enough to get a majority in the EC. The EC can continue to exist, but it would only function as a formality in the electoral process.

The NPVIC is already law in eight states and Washington D.C. – that’s 132 electoral votes, or 49% of the target of 270. The NPVIC would only come into full effect once this target is achieved – until then, the winner take all system will persist.

Considering that the NPVIC started only six years ago, it’s not unreasonable to think that eventually (much sooner than a Constitutional Amendment at least), enough states would sign on to support the winner of the national popular vote.

The states that have signed on to the NPVIC are overwhelmingly blue. But I don’t rule out the possibility of red state support in the future. The best bet for that would be if Romney wins the popular vote, but Obama wins the Electoral College. If the polls from the last few weeks are any indication, such an outcome is very likely.

The Electoral College: Affirmative Action for Smaller States

In a previous post, I argued that the Electoral College is unrepresentative, unfair and inaccurate. In another recent post, I argued that affirmative action has come a long way over the past forty years and has outlived its utility.

Today I highlight some common themes expressed in these posts by equating the Electoral College as a form of affirmative action for small states. Our country’s framers were tasked with convincing 13 disparate colonies to form a union. The main hurdle to the Federalist agenda was ensuring small states (eg: Delaware and Rhode Island) that they would not be overpowered by the larger states (eg: Virginia and Massachusetts).

The clearest way in which smaller states were given guarantees of their own limited sovereignty was in the equal representation among states in the US Senate. Although membership to the House of Representatives was agreed to be allocated by population, each state, whether small or large, gets two Senators. This means that today, Wyoming’s 570,000 people have the same Senate representation as California’s 38 million.

Giving small states more power may make sense in Congress, but not in quadrennial national elections.

This overrepresentation makes some sense in the Congress where laws are created. In the complicated mess that is the legislative process, state interests can be clearly defined and it can be difficult for smaller states to fight for their interests – yes, some forms of affirmative action are OK.

The election of the President, however, Continue reading “The Electoral College: Affirmative Action for Smaller States”

How the Electoral College Works (or Doesn’t)

President Obama and Mitt Romney will meet in Denver tonight for the first of three debates that are to be held over the next two weeks. They will not be speaking to the entire country. They will not be speaking to the 47%. They will not be speaking to the 53%. More than likely, they will be addressing the concerns of people living in a handful of states, particularly Ohio, Florida, Virginia, Colorado, North Carolina, Nevada and Iowa.

These are the so called “swing states” in which neither candidate has a commanding lead. He who picks up the most votes in these states will almost certainly be the next President of the United States. Considering that my vote would be from New York, I may as well not vote. Here’s why.

The framers of the US Constitution were big fans of democratic governance in so far as it was not monarchical. The kings of Europe were bad. The American yeoman farmer was good, but not good enough to be trusted with a direct vote for the highest office in the land. And so they created the electoral college.

How it works

The Electoral College is made up of representatives whose only job is to vote for the President. The membership is basically equal to the total number of representatives in Congress. There are currently 538 electors: 100 (number of members in the Senate) + 435 (number of Representatives in the House) + 3 from Washington D.C., which has no Congressional representation.

The partisan colors reflect the current Congress only in which the Democrats control the Senate and GOP the House. DC is not winner takes all.

Whichever party/candidate garners the most votes in each state, typically gets all the electors from that state. This system is not a federal mandate as Maine and Nebraska award electors based on the most popular candidate per Congressional district. The federal government empowers states to decide how to allocate electors. In our country’s early history, it was no uncommon for state legislatures to decide how to allocate electors – this is a Republic after all! For the most part, we have a winner take all system based on state-wide popular votes.

Why it was created Continue reading “How the Electoral College Works (or Doesn’t)”

The Individual Mandate and the Constitution

While the pundits thrive on turning the Supreme Court into a sporting venue, a couple of law scholars point out the obvious constitutionality of Obamacare’s individual mandate.

It’s difficult to imagine what the founding father and framers of the constitution had in mind when they set into motion the creation of the country and the republic more than 200 years ago, but we often seek their guidance in some sort of hindsight game of guessing their intentions. What would the framers think about abortion? Gay marriage? Government mandated healthcare? It’s not an entirely ridiculous practice – the US Constitution is the oldest living document of its kind in the world. This is no small feat for a country that is often regarded as a relatively young one. There are costs and benefits in basing our laws on the values and intentions of men who lived in the late 18th Century, but in the most recent instance of invoking the framer’s intentions, critics are barking up the wrong tree.

After a moment of reflection, it’s remarkable that the debate over the constitutionality of the individual mandate within the Affordable Care Act (ACA, aka Obamacare) has come this far. Yesterday, two remarkable articles were published in the New Republic.

In one, conservative constitutional law professor (Columbia) Henry Paul Monaghan argues that the mandate is obviously constitutional. In a nutshell, Congress has the right to regulate interstate commerce; since most people will, at some point in their lives, require medical care in the form of a service for a fee, it qualifies as a form of commerce that applies to the greater population; Congress has a right to regulate health insurance under the purview of interstate commerce. There may be outliers who live “off the grid” and would be forced to purchase something they may not need, but there is also a decent chance that they too will, at some point, need medical coverage. And besides, we often make sweeping legislation for the greater good at the cost of certain outliers – they ought not be an excuse to hold back society as a whole. The most telling sentence in Monaghan’s article was the last two sentences:

I recognize that many persons believe the health mandate is very bad legislative policy. But the appropriate judicial response to such a complaint has long been clear. The Court was admirably forthright about the point in its ruling in Munn v. Illinois in 1876: “For protection against abuses by the Legislature, the people must resort to the polls, not the courts.”

In the other article, another professor of law (Harvard), Einer Elhauge, gives examples of government mandated health coverage enacted by the founding fathers. They very first Congress, which met in 1790, passed a law mandating all ship owners to purchase medical insurance for their seamen. The bill was signed into law by a man named George Washington. Eight years later, an issue arose over the fact that this law covered drugs and physicians services, but not hospital stays. Congress responded by…wait for it…passing a law requiring all seamen to purchase hospital insurance for themselves.

I’m not a fan of trying to discern the exact intention of the Constitution’s framers. Even if we do pursue their intentions, we must make the right decision even if it conflicts with the framers’ intent. In this hullabaloo over the ACA’s constitutionality, there have been too many critics crying foul that we are violating the principals of the framers. It turns out even the framers were pretty clear in their support of individually mandated health coverage.

sidenote: there have been other, weirder individual mandates too. In 1792, Congress passed a law requiring all “able-bodied men” to buy fire arms. That’s right – not only a right to bear arms, but a law requiring that you must. Perhaps it’s a good thing that we don’t follow everything our framers set down to ink.