Defending and Expanding Popular Sovereignty (Church Talk)

By Zachary C. Myers

[BURR]

The constitution’s a mess

[HAMILTON]

So it needs amendments

[BURR]

It’s full of contradictions

[HAMILTON]

So is independence

…

We have to start somewhere

We won the war

What was it all for?

Do you support this constitution?

[BURR]

Of course

[HAMILTON]

Then defend it

[BURR]

And what if you’re backing the wrong horse?

[HAMILTON]

Burr, we studied and we fought and we killed

For the notion of a nation we now get to build

For once in your life, take a stand with pride

I don’t understand how you stand to the side

--Lin Manuel Miranda, Hamilton

I’ve been asked to talk today about President Dallin H. Oaks talk, Defending Our Divinely Inspired Constitution

I would like to take you on a journey through Three Stages of Constitutional History:

1.     First, we’ll go back in time to the Revolutionary Era to see the birth of the Constitution;

2.     Second, we’ll travel forward in time to the Reconstruction Era when the Constitution was saved and by Lincoln and the Republicans;

3.     Third, we’ll continue traveling forward to the modern day and discuss how we can continue defending and improving our Constitutional system.

 

I.               The Revolutionary Era

First, let’s hop in this time machine and travel back to the Revolutionary Era. Zip!

During the Revolutionary Era, the Constitution was a bold experiment in popular sovereignty.

Popular sovereignty is the idea that the right to rule is derived from the consent of the governed.

The question that popular sovereignty answered, was what makes a government legitimate? Traditionally, in European monarchies, legitimacy was based on the divine rule of kings. “I’m King cuz God said so. So you have to do what I say.”

In America, the colonies had rejected the idea that King George had a divine right to rule. They declared: Independence!

The Declaration of Independence States:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --….”

King George famously responded, “And when push comes to shove, I will send a fully armed battalion to remind you of my love!” JK. That’s from the Hamilton Musical.

At the time, popular sovereignty was a pretty radical notion. The Church of England likely would have called the Founders radical heretics.

During the Revolution, the U.S. government was nothing more than a loose confederation of States. George Washington’s Continental Army was hobbled by lack of resources. States contributed to the Army on a purely voluntary basis. Washington was short on men, munitions, and basic supplies—such as shoes and food. Sickness and disease killed more men than British bullets. Fortunately, Washington held the Army together and the colonies were able to win using guerilla tactics.

After the Revolution, the national government continued to struggle. The Continental Congress had no authority to enforce its requests to the states for money or troops. U.S. monetary policy was a disaster—Continental currency that was issued during the war had become essentially worthless. There was no unifying economic policy. States would make rules discouraging trade with other States—in some cases it was cheaper to trade with foreign countries than with a neighboring State.

To address these problems, in 1787, A convention was convened to discuss possible amendments to the Articles of Confederation. The attendees included George Washington, James Madison, and Benjamin Franklin. James Madison was the principal author of the Constitution.

The Constitution gave Congress the power to levy taxes directly—meaning the National government was no longer dependent on State governments for funds. Congress also had the power to enact uniform national monetary and economic policy. This created a much stronger and more vital national government.

The supporters of the new Constitution, wanted to create a strong nation founded on principles of popular sovereignty. As a result, the referendum on ratification was the most open election in American history up until that point. The Constitutional election was open to every free man. Most state elections, by contrast, were only open to wealthy land-owners.

In this way, the Constitution was a bold experiment in democracy. The Founders took the concept of a social contract literally. They actually wrote a contract and then went to the electorate and obtained their express consent for a new form of government.

Hence, the preamble to the Constitution states, “We the People of the United States … do ordain and establish this Constitution ...” As Lincoln stated, the government was established “of the people, by the people, and for the people.”

This empowerment of the common man—and I do mean man, because women were still left out for many years—created a new birth of freedom that was copied in popular revolutions throughout Europe and eventually throughout the World.

Dallin H. Oaks states, “A constitution is the foundation of government. It provides structure and limits for the exercise of government powers. The United States Constitution is the oldest written constitution still in force today. Though originally adopted by only a small number of colonies, it soon became a model worldwide.”

Of course, the Constitution did not perfectly embody the soaring rhetoric of its Revolutionary Ideals.

As I mentioned, women did not participate in the ratification of the Constitution. Likewise, black Americans were not permitted to vote and lived in dehumanizing conditions of servitude and bondage. Ironically, “We the People” did not actually include most of the people living in the country at that time.

The Constitution, as originally drafted, actually solidified the institution of slavery:

1.     The Constitution stated that no law banning the international slave trade could be passed by Congress for 21 years.

2.     The infamous three-fifths compromise boosted the number of representatives in Congress for the slave states, guaranteeing political protection for slavery.

3.     The Fugitive Slave Clause, guaranteed the right of slave owners to pursue and reclaim their slaves anywhere.

4.     The electoral college and the Senate gave disproportionate power to rural Southern states.

Dallin H. Oaks acknowledges that the U.S. Constitution was not perfect, stating

Our belief that the United States Constitution was divinely inspired does not mean that divine revelation dictated every word and phrase, such as the provisions allocating the number of representatives from each state [i.e. the three-fifths compromise]. The Constitution was not “a fully grown document,” said President J. Reuben Clark. “On the contrary,” he explained, “we believe it must grow and develop to meet the changing needs of an advancing world.”

Slavery—the original stain on this Nation bled into the Constitution itself.

II.            The Civil War and Reconstruction

To see what happened next, let’s set the dial of the time machine to travel forward to the Civil War and Reconstruction Era. Zip!

People tend to forget that for all the genius of the Constitution, there was a period of time where it failed. A large portion of the nation rejected the outcome of the Election of President Abraham Lincoln and instituted a violent insurrection against the government.

Fortunately, Lincoln, won the war and preserved the Union. After stitching the Country back together, Lincoln and his allies set to work fixing the Constitution.

Part of the genius of the U.S. Constitution is that it provided a means for changing the social contract—an amendment process.  Dallin H. Oaks states, “inspired amendments abolished slavery and gave women the right to vote.”

Lincoln had faith in Constitutional principles, even though he recognized the document was imperfect and in need of amendment.

During the Reconstruction era, after the Civil War, we saw the passage of the Thirteenth Amendment—abolishing slavery—and the Fourteenth Amendement—stating that States could not violate citizens’ rights of due process and equal protection of the law. Both of these ammendments—like the original Constitutional convention—expanded the power and reach of the Federal Government—giving it a more active role in policing the States and securing individual liberty. Unfortunately, successive governments often ignored these Federal powers. Black codes and Jim Crow laws were able to take hold. However, the Reconstruction Amendments played an important role in the black liberation movement of the 1960s. Martin Luther King, Jr. often quoted Lincoln during his quest for freedom. The Civil Rights Acts of 1964 and 1967 and the Voting Rights Act of 1965 all derived authority from the Reconstruction Amendments.

I believe these amendments—which helped expand popular participation in democracy—were inspired by God. Therefore, Abraham Lincoln, and his Republican allies should be added to the list of Authors of the Constitution. Likewise, the suffragettes, like Ida B. Wells, who lobbied for the Nineteenth Amendment—guaranteeing women the right to vote—deserve a place in the pantheon of Founders. The Revolutionary Generation is not the only generation who should have a say in what the Constitution means to us today.

III.          The Modern Era

Let’s get back in our time-macine, and travel forward to the modern day. Zap!

On January 6 of this year a mob stormed the U.S. Capital building in an attempt to overthrow the results of a Constitutional election.

Dallin H. Oaks states, “Sovereign power in the people does not mean that mobs or other groups of people can intervene to intimidate or force government action. The Constitution established a constitutional democratic republic, where the people exercise their power through their elected representatives.”

I worry that we sometimes take democracy for granted. Democracy is messy. Persuasion is hard. As a result, many of us have become jaded and are no longer interested in defending democratic institutions—like Congress. Some believe our institutions are corrupt and cannot be saved through non-violent means. Some of us have even started to believe ridiculous conspiracies that our political opponents are a cabal of Satanist child snatchers.

In regard to our individual participation in democracy, President Oaks states the following:

We must pray for the Lord to guide and bless all nations and their leaders. This is part of our article of faith. Being subject to presidents or rulers of course poses no obstacle to our opposing individual laws or policies. It does require that we exercise our influence civilly and peacefully within the framework of our constitutions and applicable laws. On contested issues, we should seek to moderate and unify.

There are other duties that are part of upholding the inspired Constitution. We should learn and advocate the inspired principles of the Constitution. We should seek out and support wise and good persons who will support those principles in their public actions. We should be knowledgeable citizens who are active in making our influence felt in civic affairs.

Popular participation in government is good for at least two reasons:

1.     Popular participation increases the legitimacy of government and decreases feelings of disaffection, disempowerment, and sedition; and

2.     Increased participation translates into better government, because our diverse perspectives are better represented.

I don’t want another Civil War. I don’t want our democracy to fall apart. I believe that we need to respect the results of Constitutional elections, even as we lobby for changes that move us toward a more perfect union.

Speaking of lobbying for changes: How can the structure of our government better reflect the principles of popular sovereignty underlying the Constitution? Let me offer a couple suggestions.

Dallin H. Oaks says, “It is wrong for citizens to have no voice in the selection of their rulers or the making of their laws.”

There are regions in the United States that currently have nothing more than symbolic representation in our national legislature. The Revolutionary generation shouted, “No taxation without representation.” 200 years later, the license plates in Washington, D.C. state, “taxation without representation.” Apparently, nothing has changed. Perhaps an amendment granting representation to those in territories like D.C. would better reflect our democratic values.

Likewise, anachronistic institutions that were created to increase the power of Slave States, like the electoral college and the Senate, distort the popular vote and give disproportionate influence to States with lower populations. This is contrary to the egalitarian principle of “one person, one vote.” It’s just not fair.

I offer these as two areas of possible change for your consideration.

I bear testimony that that the Authors of the Constitution were divinely inspired. It is important to defend the Constitutional principles of popular sovereignty, unalienable rights, and separation of powers.

I say these things in the name of Jesus Christ, Amen.   

 

That time I Almost Got My Black Friend Fired (Or I Can Be Racist Too)

I had a black lunch buddy when I was working at a law firm in DC. I was a law clerk; He worked in IT. He was a Jamaican immigrant. First college grad in his family. He was tall with long thick dreadlocks gathered in the back. We liked to talk politics sitting at a shady park bench next to the Whitehouse facing the famous equestrian statue of Andrew Jackson. 

*

One day, my boss wanted a progress report on a project. I had some IT problems so I sort of unthinkingly, offhandedly blamed IT problems for my slow progress. My friend was the entire IT Department. Without even consciously thinking about it, I had thrown my friend under the bus! (I didn't mention my friend by name, I just blamed IT problems.)

My friend got in trouble, someone yelled at him, and then he came and told me how upset he was. I understood why he was upset and I immediately apologized--it was really lame of me to deflect blame to him. I should take responsibility for my own work problems and when necessary find IT work-arounds. I emailed my boss and told him that my friend did nothing wrong and I apologized for throwing him under the bus.

The incident sticks in my memory, largely because of how well my buddy handled it. I appreciate my friends professionalism (coming to me directly to address it rather than retaliate to my boss). After I apologized, he forgave me. He never bad-mouthed me or pursued any sort of vendetta. We went back to eating lunch together. The incident was never mentioned again. 

At the time, I didn't realize how white privilege and unconscious black bias infected this workplace incident. Only today, when ruminating about the 'black lives matter' movement did it occur to me how upsetting it must have been for my friend. As a white man I was blaming a black man for a work failure. He of course was scared because black men aren't always treated with leniency in the workplace. (There are studies.) For my part, I just take for granted the way I'm generally given the benefit of the doubt. Black people can't always count on that--as this situation proved.

I had only been at this job a few months.  My friend had been working there for about a decade. Yet my little off-handed comment almost got him fired. (And, by the way, he did fix my IT problem in a timely manner. He was a good employee.)

It's scary the way unconscious bias works in the workforce, on the street, everywhere. I know that I've unthinkingly participated in it. 

We all can do better. It's not enough to avoid overt hateful acts. We need to consciously counteract unconscious biases that infect our interactions with black people and other people of color.

*Lafayette Square is where Trump recently cleared protesters in order to take a photo in front of a Church. 

Children in Detention

I am a former Submissions Editor of the Georgetown Immigration Law Journal.

I've heard it said that parents who cross the border illegally deserve to be separated from their children, because they committed a crime. The logic is, if a U.S. Citizen commits a crime and is sent to prison she is separated from her children. Why should these "illegal" immigrants be treated any differently? Commit the crime, do the time. Right?

Wrong.

First, this is analogy is stupid because, if a U.S. citizen commits a crime, her children are not put in a detention center. They stay at home with other family or, worst case scenario, get put in a foster home. They have caring guardians, continue to go to school, and sleep in beds rather than on concrete floors.

Second, unauthorized entry (border crossing) is a misdemeanor crime. It's like a traffic violation. The penalty is generally a fine. I've never heard of anyone being separated from their children for speeding. And if they were, that would be very wrong. So the analogy makes no sense. The "punishment" of putting children in traumatizing conditions without their parents is not proportionate to the so-called "crime."

Third, this analogy makes no sense because, in the vast majority of immigration detention cases there is NO CRIME.

Subpart a: If you show up at the border seeking asylum, you are entitled to a hearing. You will be "paroled" into the country pending your hearing and may be held in detention. If this is your situation--and it is for a large number of the immigrants who were separated from their parents--then there has been no unauthorized entry and there is NO CRIME. To separate these law-abiding asylum seekers from their children is irredeemably cruel and abhorrent.

Subpart b: Immigrant detention is NOT a CRIMINAL punishment. It is temporary holding pending a CIVIL hearing. Removal proceedings are civil, not criminal hearings. In the vast majority of deportations, there are no criminal charges. So, even if it were a fitting punishment to separate children from parents, it would violate due process, because there is no criminal trial (with all of the attendant procedural rights, including right to a paid attorney and right to a jury). Under the U.S. Constitution, you cannot punish someone without giving them a full and fair trial. Punishing people without charging them with a crime or giving them a trial is what tyrants and dictators do. Here, in 99% of the cases, there is no criminal trial. There is only a civil hearing before an immigration judge. Most people do not understand this distinction, which seems to be intentional on the part of Trump and his allies who conflate removal proceedings with criminal proceedings and try to paint all immigrants as criminals.

Under Obama, children were only separated from parents pending a hearing if the parent was deemed to be a danger to the child (basically only if there was an abusive parent or the parent had a dangerous communicable disease). The child's welfare was always the priority. Even when children were separated from parents, they weren't held indefinitely in squalid, traumatizing detention centers. They were placed in a home--either with family members in the U.S. or a foster home.

Trump's policy was to separate all children from all parents. Then, rather than put them in homes, they were put into detention centers. The stated objective was "deterrence," i.e. cruelty to families was the whole point. The objective was to make it so painful that asylum seekers and other would-be migrants would not even attempt to go through the system. This is barbaric and wrong. I honestly believe Trump and his allies (Sessions) are going to Hell for their treatment of these little ones.

I'm disgusted with this administration and those who support unnecessary cruelty as a so-called "deterrent." (BTW, there is basically zero evidence that these policies produce any deterrent effect, so there is a good chance that the U.S. is straight-up torturing children for absolutely no reason.)

Landlord Tenant Bill HB 0376

I just wanted to weigh in on HB 0376.

I think this bill is bad for Utah.

The bill would make it difficult for tenants to defend themselves in complex eviction cases involving allegations of "nuisance" or "breach of contract." These are not straight-forward non-payment of rent cases. The bills changes the law so that tenants will only have ten days to prepare for an eviction hearing. Ten days might be enough time in a more straight-forward non-payment of rent case (which generally is just a question of accounting), but cases involving allegations of "nuisance" or "breach of contract" are often factually complex and require time for investigation before a hearing is held on the merits. Ten days is not enough time to prepare a defense for these type of cases. I think the change proposed by this bill is a bad idea.

The bill would also subject commercial tenants to expedited process. This is bad for business. I have seen fledgling businesses ruined because a landlord wrongfully evicted them. Again, there should not be an eviction hearing within ten days when the case involves complex contractual relations between a landlord and a commercial tenant. Having a hearing on occupancy within ten days is a huge disruption to businesses. Because it is anti-business, I recommend rejecting the bill. Commercial tenants should have the same procedural rights as parties in other contractual disputes (21 days to respond, trial after 120 days, etc.) The business community should reject this change. It has potentially large ramifications on Utah businesses, many of which are tenants.

Finally, a seemingly minor change in the law changes the word "answer" to "answer or response." This change seems minor, but it has far-reaching implications. The change would mandate an eviction hearing after a tenant files a "response" in the form of a motion to dismiss based on lack of jurisdiction. This change in language would create a situation where the Court would be required to have an eviction hearing before the court has even determined whether it has jurisdiction over the case. This is likely unconstitutional. The Court cannot evict someone without first determining whether it has jurisdiction over the case. Therefore, this seemingly minor change has huge legal and constitutional implications and will create problems for the Court's trying to implement the change.

I think HB 0376 is an unnecessary and problematic change to a system that is already extremely expedited compared to most civil litigation.

Please call your state Senator and Representative and tell them that you oppose House Bill 0376. If you can, please pass this message along. Thank you!

Direct Democracy

I believe in direct democracy.

Currently in the United States we have a system of representative democracy. We vote for representatives who in turn make the laws. 

I believe the American people should make the laws directly, rather than relying on representatives. It is only fair that we should be able to vote directly on the policies that will effect their lives. 

Every citizen should vote on every law.

In the past this would have been impractical, because it would take massive time and resources to bring together an entire nations worth of votes on every tiny legislative question. However, now, thanks to advances in technology, it is possible for every citizen to weigh in on every policy choice.

There are still practical challenges to direct democracy. 'Information costs' are the cost of getting information necessary to making efficient decisions. Our government and economy are incredibly complex. The average voter simply does not have the time or resources necessary to learn everything she needs to know to make informed decisions about every proposed piece of legislation. 

Here is what I propose.

My system of direct democracy would deal with information costs through proxy voting. 

Proxy voting is a device currently used in corporate governance. Basically, individual stockholders can appoint a proxy to vote on their behalf. Most of these proxies are large investment advising organizations that are able to do the hard work of analyzing corporate plans and voting in the stockholders best interest. 

Under my proposed system of direct democracy proxy voting would be an option: you can vote on each issue yourself, abstain, or you can appoint a proxy to vote on your behalf. These proxies would be professional, non-profit, organizations devoted to policy analysis and policy writing. I envision that under such a system there would be a proliferation of such organizations all vying for the privilege of voting on your behalf. 

Citizens would give their vote to the proxy that best represents their policy preferences. Citizens would always have the right to pull their vote back and appoint a different proxy. Citizens would also have the option to vote directly on issues that they are particularly passionate about, while leaving most of their voting to their proxy. 

To fund the proxies I would give Citizens a tax credit each year (maybe $100) to compensate them for the cost of hiring a proxy.

Because citizens can change proxies at any time, proxies will have a strong incentive to make their clients happy by enacting policies that closely match their preferences. Proxies will be allowed to charge uniform fees, but will not be able to accept additional money from wealthy citizens or corporations. 

My system of direct democracy would replace the Congress. The executive and judicial branches would essentially remain unchanged. The bill of rights will not change--there will be limits on what the populace can do with their votes. Therefore, there will still be checks and balances against excesses of democracy.

My system would be better for the following reasons:

1. Popular sovereignty, legitimacy, and lawfulness--My system best reflects the value of popular sovereignty. The citizens will directly choose the laws that govern them. My system will enhance the legitimacy of government, because the laws will be a direct reflection of the popular will. This would likely have positive effects on law enforcement, because the laws they are enforcing will have greater legitimacy.

3. Complexity--My system would better handle complexity, because professional proxy organizations would be in charge of policy writing and analysis. (Senators and representatives are good at winning popularity contests, not necessarily good at writing policy). Proxy organizations will have a strong incentive to do a good job, because their pay will be directly related to job performance. Market forces and competition will quickly discipline poor performance. 

4. Diversity--My system will eliminate binary voting. Rather than having only two parties to choose from, voters will be able to more accurately express their policy preferences among hundreds or thousands of proxies. For example, a social conservative that is fiscally liberal will be able to appoint a socially-conservative, fiscally-liberal proxy to vote on her behalf. Under our current system, socially-conservative, fiscally-liberal citizens don't have a party that represents their policy preference. 

5. Partisanship and identity politics--My system will help unite the country by eliminating partisanship and reducing identity politics. Two parties will be replaced by a whole bunch of proxies. This will help focus the populace on policy choices rather than personalities and identity politics.

6. Reduced gridlock--My system would permit interesting coalitions to develop. Because each issue is voted for directly, social conservatives and fiscal liberals could unite to pass welfare legislation or fiscal conservatives and social libertarians could unite to pass criminal justice reform, etc. Again, the law will much better reflect the popular will free from partisan distortion.

7. Flexibility and responsiveness--My system would be more flexible and responsive. Voters can change proxies at any time. The system will be able to quickly adapt to changes in global affairs, technology, etc.

8. Elimination of money and corruption in politics--Under my system, there is no potential for bribery--you would need to bribe the entire nation (or at least a majority). Not only would this be extremely impractical, it would also be extremely obvious and easy to prosecute. There would be no large campaign donors to corrupt our politicians, because there are no campaigns and there are no politicians. There is only us, voting on the laws that we think will best serve the country. 

We should institute a system of direct democracy. Every citizen should have an equal voice on the laws that govern us. 

Persecuting Mormons Doesn't Bother Scalia

Just came across this gem and I thought I would share it. It is Justice Scalia comparing discrimination against homosexuals in our age to discrimination against polygamist Mormons in the 19th century. He concludes that there was nothing wrong (at least constitutionally) with discriminating against Mormons, and so there is nothing wrong with discriminating against gay people. This favorable endorsement of religious/sexual intolerance in American history is fairly shocking.

This is also the text where Scalia predicts that if the Courts protect the rights of homosexuals, then they will also have to protect polygamists against discrimination. (Oh No! Can't be extending Constitutional protection to the Brown family!)

We, as Mormons, should be the biggest advocates for gay rights. Mormons were the gays of the 1800s. (Of course gays were also the gays of the 1800s.)

Anyways, here it is:

"But there is a much closer analogy, one that involves precisely the effort by the majority of citizens to preserve its view of sexual morality statewide, against the efforts of a geographically concentrated and politically powerful minority to undermine it. The constitutions of the States of Arizona, Idaho, New Mexico, Oklahoma, and Utah to this day contain provisions stating that polygamy is ‘forever prohibited.’ …  The Court's disposition today suggests that these provisions are unconstitutional, and that polygamy must be permitted in these States on a state-legislated, or perhaps even local option, basis—unless, of course, polygamists for some reason have fewer constitutional rights than homosexuals."

--Justice Antonin Scalia, dissenting opinion in Romer v. Evans.

Moles (A Poem)

Holes are for moles.
They break through the surface
of the brown Earth with
their pink snouts.
It is obscene.