We the People or What is a Progressive

(This article was originally published on realprogressivesusa.com)

The Preamble to the Constitution of the United States of America

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

We all are familiar with the opening three words of the US Constitution, “We the People”.  It is from the preamble, written to introduce the purpose of the Constitution. The body of the Constitution describes the structure of the government.  These are two discrete functions and all too often, the Supreme Court neglects to examine if a law that qualifies as Constitutional when it adheres to the structural description also satisfies the purpose.  In fact, the preamble has never been applied by the Supreme Court in any ruling, and has been mentioned very infrequently.  Reading it, the intention of the preamble is pretty clear, it is America’s mission statement.  It stands separate from the details of the Constitution and establishes a set of standards for the United States.  For example, the Patriot Act passed after 9/11 obviously provides for the common defense (sic), but it does not secure Liberty.  Is that direct violation of the preamble instructions enough to declare the law unconstitutional?

There is a majority on the Supreme Court who claim to be Originalists.  Their guideline for determining if a law is Constitutional is grounded in establishing what the framers meant when they wrote whatever clause or clauses gave Congress the authority to pass the law.  The preamble makes it apparent that the founders were well aware that conditions would change over time. It is rather unlikely they believed why they wrote each clause would determine future Supreme Court decisions.  The very words they chose to place immediately after “We the people”nullifies the idea that the document is intended to remain static, and closed to interpretation to fit the times.

“In Order to form a more perfect Union”. Go, ahead, back up your eyes and read it again.  Prior to the US Constitution, the 13 colonies formed a Confederation in 1777, under a document called The Articles of Confederation.  After the Revolution, there was unrest across the country due to shortcomings in the Article’s design.  The central government was extremely weak, with the power to mint coins, but not to tax.  US currency effectively remained worthless and all business transactions used local currencies issued by the states and banks.  In the North there were local militias taking up arms against the individual states and the central government.  In the South, slaves were escaping in the desire to reach a state that had little or no slavery.  James Madison called for a convention in order to revise the Articles.  They met in 1787 in Philadelphia. Instead of fixing what was broken, they created the present Constitution.  The only reference to the document they intended to make better and ended up replacing was referenced as a “perfect union”.  The wording was used to sell the Constitution.  Even though the Articles were “perfect”, the new Constitution would be “more perfect”.  A deliberate choice of an impossible phrase, but heavy with meaning.

Under the Articles of Confederation, the self-declared independent colonies fought a war against the most powerful military in the world; they also made a treaty with France to improve their chances of victory. And, they won the war under the Articles and signed a peace treaty with England.  There was justification in saying The Articles operated perfectly.  But as a peacetime independent nation, it’s weaknesses became evident.  Unpaid debts or debt paid in worthless money, escaped slaves, the Whiskey Rebellion and finally just prior to the convention Shay’s Rebellion, made it evident that the country was in chaos. More perfection was the necessary cure.

The framers who met in Convention faced the reality that what was perfect only 10 years prior was no longer perfect.  With that realization, not only did they recognize that over time circumstances change, but they also made certain to embed change into the new Constitution.  They wrote in three ways to amend the Constitution. That fact alone is a recognition that meanings and usefulness change over time.  Further proof of this recognition is that in the first 20 years after the first 10 amendments were passed – itself a recognition that the more perfect document itself, could be made more perfect – there were multiple changes made to Presidential elections and how Senators are chosen.  On the difficult issue of slavery, the framers inserted an end to the slave trade into the Constitution.  An indication that they recognized that slavery was not going to remain forever.

The people that sat and sweated during the summer of 1787 recognized that circumstances would change.  The Originalists on our current Supreme Court do not recognize the lesson, pointed out by the framers themselves in the preamble, that as circumstances change so does the purpose of individual clauses in the Constitution.  To account for change they created the preamble as the standard by which laws are made and judged.  Instead of attempting to divine what the framers meant back when the US was predominately an agricultural nation. Or before communications even indicated the possibility of happening instantaneously worldwide, before medicine had fully elevated itself from the belief that all disease was carried in the blood and sickness could be cured by bloodletting, and before anyone dreamed that a single weapon could wipe out dozens of lives in a mere moment.  If Originalists follow the declared intentions of the framers provided in the preamble, they would recognize that their responsibility is to continually make the union more perfect. They would make certain that there is justice for all, and people should expect to have a comfortable life with little to fear.  America should strive to be a nation safe from any enemies but also provide that the welfare of all be assured. Lastly, the US should do nothing that would jeopardize Liberty in the United States for Posterity.  So, when anyone asks “what is a Progressive”? – Tell them it is the preamble to the US Constitution.


Keep Political Parties Away from our Elections

The evidence proves that Political Parties running elections is bad for Democracy.

Ideas for election reform have been flowing across my facebook screens nearly daily for the last month. Many of the ideas individually have a lot of merit, but there are some that are downright dangerous. The most common ideas are ranked choice voting, eliminating gerrymandering, open primaries, making election day a holiday, even more early voting, vote by mail, automatic voter registration, and mandating paper ballots. I am sure there are others that I missed listing and others that I have not heard about.

Why is election reform such a hot topic all of a sudden? A major driver was the recent election for president that did not turn out in any way how the experts all expected it would.  Their malfeasance has turned into a state of shock all across America. So the next question is, what went wrong that never went wrong before. As far as I can tell, nothing went wrong that hasn’t gone wrong before. That means that the problems that need fixing haven’t changed. Why all the fuss now? My thesis is that nobody wants to admit that anything was going wrong before. Especially the pundit class, that group of people who sit around tables that are near TV cameras and pontificate just as I am doing now, except my laptop camera is turned off and I don’t get paid. Also the pundit class keeps getting to talk into cameras and say stuff and two weeks later when they are all wrong, the same group gets brought back in front of the cameras and are asked to pontificate some more. Instead of looking back and asking what are we missing, they pretend that the real problems with our entire election are not consequential, and as the cognitive dissonance distance between what is broken and what the pundit class bases their predictions increases, the less reliable the predictions are, and the less the public believes them.

A reliable election process is where the best candidates are selected and those candidates should represent as much of the spectrum of ideas as possible. It also depends on all the votes being counted, and anytime the count is in doubt, a recount should be expected as a matter of course. Enforcement of election procedures along with the same level of audits used to validate that a bank is responsibly and honestly counting all the money individuals have handed to them for safe keeping is the minimum we should expect if protecting democracy is a true government objective. Are any of those standards happening in our election system? I don’t think so at all. In fact until we implement procedures to assure we have a process that brings forth candidates that advocate a broad spectrum of ideas, and elections whose results are trusted by the electorate, then any changes that do not directly address those problems will remain small band-aid patches on a deep wound. And if that is all we implement, then the band-aid will fall off and the wound will open even wider.

In order to bring forth multiple candidates with differing philosophies the two-party system has to be relegated to back of the line. It was obvious to the Founding Fathers that as odious as political parties are, they will form nonetheless. That should be accepted but in no way be legislated as a requirement for candidacy nor should parties be outlawed. People will do what they always do and form cliques, it is government’s role to make sure that parties do not make the rules.  Right now, our election system is so locked down as Democrat vs. Republican that around 98% of all elected officials in the US are members of one of those parties. That only two candidates are considered viable in at least 98% of our elections means that other ideas are literally stifled. Actual discussion is diminished and the voter finds nobody that truly represents their personal point of view, resulting in lower voter turnout. Counting ballots must take place on paper, but technology should not be eliminated. While scanner software is easy to manipulate, there is no reason that programming the machines cannot be done using open software, data entered (such as candidates names and their related printed information that appears on the ballot) should be in plain language. The program code should be written in an interpretative language so that any literate individual can read and understand how the program tabulates the votes .  Audits of at least 10% of the polling places must be mandatory and the audits must be a hand count of the scanned paper ballots.

There are two more critical issues that must be addressed since their impact on elections is profound. First, a law must be passed overturning the Supreme Court decision to release certain states and other jurisdictions from Justice Department oversight of changes to their election laws. It became obvious within days that the court had made a mistake since one state after another passed voter restriction laws as soon as the oversight was removed. Along with that, the law should provide tools for any polling places that are insufficiently supplied with voting machines or ballots to have those ballots printed at any nearby printing facility via a temporary eminent domain authority.

The second critical point is to remove any political party restrictions for Primary elections. This has become a frequent point made by many, but most do not go far enough since they only require that anyone can pick which party’s ballot they want. But consistent with my earlier point that parties must be relegated to the back of the line, each person showing up to vote in a Primary gets only 1 ballot with all the candidates on it. This becomes more critical when there is more than one office on the ballot. A person can then vote for the person they want in the primary no matter what parties their choice of candidates aligns with.

If Money Equals Speech, Does Speech Equal Money?

Salem Harbor




(NOTE:  The following post is adapted dramatically from a comment and a reply to another comment regarding a letter that appeared in the Salem News. The letter was written by a member of MA Move to Amend, a mission I wholeheartedly endorse.  Some of the reply comment appeared separately as a Facebook post and has not been altered very much.)

The Supreme Court’s recent McCutcheon ruling allows individuals to donate up to the current limit an amount of money to an unlimited number of candidates. This erases the limit set on the number of candidates one could finance . Of course this creates some new problems in our electoral process. Many we can anticipate, and probably just as many we can’t. It is possible that some aspects of the ruling may even create some positive effects, but for one reason alone, the negatives absolutely outweigh the positives. The overwhelming amount of expenditures being made in electoral campaigns cannot be seen as anything but a negative trend. I make this point not only on moral grounds, but also on sound economic principles.

The law was put in place to prevent wealthy individuals from affecting not only the outcome of the election, but also the results of a federal election. The outcome being the winning candidate, and the result the winning candidate’s votes in Congress. Historically, the PACs frequently have funded candidates of both establishment parties. Why? Because no matter who wins, they get access to the candidates. By allowing unlimited access, because that is what a campaign donation is, a request for access; wealthy individuals can and will fund both candidates.

And the reason for overturning the maximum number of funded candidates? Free speech. The logic somehow is that the money provided to a candidate so that the candidate can get their message out is free speech, The very same free speech as protected in the US Constitution. (I know my choice of  language is somewhat a subliminal negative message about the ruling, if it offends you; get over it.) Really? So I can go into Macy’s, go up to the clerk at the register with a cart full of clothes and then proceed  to pay for the clothes with a 2 hour speech, or perhaps if I use a lot of big, gotta look that one up in the dictionary words, I only have to speak for 15 minutes! I know, just because money equals speech does not mean that speech equals money. But, if I silently gave money to a cop after he (hypothetically, of course) pulled me over speeding isn’t that a closer example to this SCOTUS ruling?  Or am I trying to influence the cop into not handing me a very expensive speeding ticket?

No, money provided to a candidate can be used for the candidate to exercise her right to speak freely, but it has nothing to do with the donor’s right to speak freely. In fact, just the opposite. When I speak (or write) in favor of a candidate, then the words of endorsement are mine. I am responsible for the content, not the candidate. When I fund a candidate, the opposite occurs. I get to speak to the candidate to influence her. And the speech is mostly private, not public. The more funding, the more private. Are you cynical yet, because thee is one last point. Even though there are dollar limits on the amount you can spend on any one candidate, that doesn’t stop the average influence seeker from finding party organizations to buy influence from. The amount of direct, legal influence a seeker can use to gather access is essentially unlimited.

Gaining influence over our political leaders is effectively described in the Constitution.  The right to assemble is an allowed form of influence.  And so isn’t the right to speak and write freely. But, nowhere does the Constitution equate speech or press to money or wealth. In fact, The Court has ruled that the right to vote cannot be associated with any sort of poll tax.  Money as speech is an artificial construct of the Supreme Court and the Court has taken that construct beyond any reasonablele limit. We can speak freely, but not all the time. Falsely shouting fire in a crowded area is prohibited speech that endangers others. Making false accusations in print may make one subject to a libel suit. Assembling to commit violence or even assembling without permits are not allowed. Our freedoms have limits and we depend on the Congress to define them, and the Court to name them. The McCutcheon case does the exact opposite, Congress had defined the limits to the concept of money is speech, a concept defined by the Court. 

What are the limits to money is speech? I would say that Congress determined that limit is 18 candidates. Perhaps that limit is too high, but the question can also be asked at what decibel level is it OK to speak the word ‘fire’ in a crowd?

That is the type of analysis the court is supposed to make. At what limit does the campaign empowerment and ‘gratitude’ that comes from an unlimited amount of money effectively become a bribe? How about the donor that gives both sides the maximum amount? Isn’t it obvious that the donor is expecting one of the two major party candidates to return the favor? Very rarely does large sums of money go to one major party and also a small one. Isn’t that using one’s wealth to squeeze out points of view not held by either party an obvious and negative influence on our elections? Doesn’t allowing by multiple rulings virtually unlimited money into electing people divert from our economy more productive uses of that money.

There is much more that is wrong with this decision, as well Citizen’s United and the Voting Right’s act. In my mind, these 5 Justices need to answer in a public hearing. There is only one kind of hearing that will force the 5 Right Wing  justices to prove to Congress that they overturned standing law on sound Constitutional grounds. That would be an impeachment hearing. These 5 need to be impeached and if they cannot explain themselves sufficiently, they lose their jobs and their rulings are nullified.


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