Archive | March, 2012

Not All Bad Laws are Unconstitutional

29 Mar

Matt Yglesias and several of his commentators observe that nothing in constitutional law demands a limiting principle to the commerce clause or, in fact, to any enumerated power. Perhaps the framers didn’t intend Congress to impose its will on any domain of life through taxation and regulation of commerce, but if that was the founders’ intention, they simply fucked up in writing the Constitution. (Who said the Constitution can’t possibly contain mistakes?) The commerce clause allows regulation of international and interstate commerce; if it’s found that nothing in modern life stands outside of interstate commerce anymore, then nothing stands outside Congress’s enumerated powers. That the founders didn’t foresee this evolution in the 1780′s doesn’t obligate us to invent new limitations.

More broadly, Matt and other commentators note that plenty of bad, liberty-infringing laws are perfectly constitutional. There’s no special obligation to limit the commerce clause to preclude such laws, and very importantly, this is no big deal. The primary protections of liberty afforded by the Constitution are in its explicit prohibitions, such as in the Bill of Rights, and in the political process it guarantees. As the McCulloch v Maryland ruling noted, the general protection against tyranny afforded by the Constitution is the electoral process. You don’t want Congress to force you to eat broccoli? Don’t vote for that Congress.

Reverse Godwin’s Law

2 Mar

Regarding Andrew Breitbart’s death

No, not every bad person is equatable to Hitler, but below (above?) Hitler, there are plenty of gradations of bad that are really, really bad. Hallmark doesn’t make a card that reads, “Congratulations, you’re not a Nazi!”

I found the gloating over bin Laden’s death distasteful, so something would be pretty fucked up with my moral compass if I didn’t feel more reservation over Breitbart’s death. By my own sense, the properly calibrated liberal response is a non-gleeful, sober assessment of Breitbart’s life mission—which won’t be terribly flattering, even sans hyperbole.

Presidential primary system reform is doable

1 Mar

Our presidential primary process is:

  • overly complicated
  • overly long

…which are bad things for all the reasons I laid out here. Fortunately, control of the process lies in the hands of the individual parties rather than the federal constitution or federal or state law, so reform shouldn’t require any grand political bargaining across the aisle. Moreover, each party has a strong interest in optimizing the process to select their most viable candidate. Given these facts, why then has the status quo prevailed? The simplest reason is probably that would-be primary reformers simply haven’t settled upon a viable alternative. The most common proposal is a simple “national primary”, which would have a pretty obvious flaw:

The major flaw in the concept is that it takes the phenomenon of frontloading, which other reform plans seek to alleviate, to its ultimate conclusion. Candidates would need to raise huge sums of money, before the first vote was cast in any state, in order to wage a nation-wide campaign. Neither the Republican National Committee’s 2000 Advisory Commission on the Presidential Nominating Process nor the Democratic National Committee’s 2005 Commission on Presidential Nomination Timing and Scheduling considered a national primary as a reform concept; rather they considered it the consequence of inadequate action to reform the process.

The real fault in the idea is that it simply goes a step too far. Yes, we need a national primary, but one with multiple rounds. Adapting my election ideas from the earlier post, my primary system would involve at least two rounds, the first a national STV vote held about four months before the convention to narrow the field down to ~6 candidates, the second a national IRV vote to select the nominee one month before the convention. You might possibly add another STV round in between, selecting ~20 candidates in the first round, ~6 in the second, and a nominee in the final round. Either way, you’d avoid the inevitable front-runner bias of a single-round national primary and probably make the field actually more open than it is currently rather than less. Best of all, you’d greatly simplify and expedite the process, sparing us from the endless 18+ month slog we know today (including the endless media speculation about brokered conventions and county-by-county voting patterns).

If you want to preserve out-sized influence for the smaller states, simply give them a bonus modifier, e.g. one Wyoming vote counts for Nx one Californian vote.

The only real downside I can see is the added cost of holding multiple voting rounds in every state, but it seems like a pretty small price to pay. If this is really an issue, the parties could hold the earlier rounds as private elections, perhaps online (involving, of course, some kind of registered party member authentication and perhaps supplemented with traditional onsite voting). After all, the nomination process is not really a state function, so the nomination contests needn’t really be conducted under the auspices of the state.

If Democrats and Republicans want to avoid a future primary debacle like the 2012 Republican primary, they should give primary reform serious attention.