David Brooks has a column in today’s NYTimes entitled “One Reform to Save America.” Briefly, he calls for the adoption of the (uncited) FairVote proposal to larn rid of single-member congressional districts inward favor of multi-member districts elected with proportional representation, addition adoption of the alternative vote to assure that winners inward First Past the Post systems volition inward fact create got a plausible claim to create got garnered bulk back upwards (and, therefore, an incentive to endeavor to attract to a greater extent than or less centrist support). From 1 perspective, neither raises any basic constitutional issues. States tomorrow could, as Maine has of late done, adopt the alternative transferable vote, too Congress could tomorrow but vote to repeal the 1842 legislation, reaffirmed inward the 1960s, that requires single-member congressional districts.
So 2 thank yous for Brooks, who is clearly right virtually the consequences of our dreadful electoral system. But Brooks likewise demonstrates the obtuseness of the punditry past times utterly failing to appear upwards the fact that at that spot is non a snowball’s endangerment inward hell of Congress (i.e., the House of Representatives) genuinely repealing the 1842 act, which past times Definition would live on a monumental disruption of the condition quo too become a long means to challenging, if non eliminating, the acquaint two-party duopoly. Indeed, the Republicans who command the Maine legislature are patently resolutely doing what they tin to avoid complying with the wishes of the people of Maine to reform their electoral arrangement (just as, incidentally, they turn down to choose the people's verdict, inward a referendum, to bring together Medicaid). I create got quoted many times what I believe to live on the belatedly John Roche's useful addendum to Lord Acton's famous comment virtually powerfulness too corruption. According to Roche, "Power corrupts, too the prospect of losing powerfulness corrupts absolutely." Nothing demonstrates this to a greater extent than than the unwillingness to those who produce goodness from a condition quo to choose the possibility that the political structures that reinforce their powerfulness involve to live on radically transformed.
If nosotros were, say, California or a number of other largely western states, too then “We the People” could endeavor to arrive at Brooksian reform past times first too referendum, too I suspect at that spot would live on a skillful probability of success. That is how California adopted the so-called "jungle primary" system, where everyone competes for selection inward the elevation two, who too then grapple it out inward the full general election. There is much panic, peculiarly inward California, that fragmentation with Democrats volition Pb to 2 Republicans existence at the elevation of the heap inward several otherwise easily contestable congressional districts. Does this demonstrate the problems with the jungle main or, instead, with egoistic candidates unwilling to forego their minute inward the sun? After all, at that spot is no serious possibility that Donald Trump, who failed to gain a bulk of the Republican vote inward the overall Republican primaries, would create got been nominated had the egos on parade throughout the movement flavour e'er been able to concord on who with them should live on chosen to halt the Trumpian menace. Or if the Republican primaries had adopted unmarried transferrable votes, too then 1 suspects Trump mightiness create got been headed off. But, of course, none of this was possible. Among other things, the demonstrates the importance of formal structures.
But, alas, as I create got repeatedly noted, our Framers had entirely contempt for the actuality of pop sovereignty too created a national constitution designed to eliminate the real possibility of dominion past times the people instead of elite representatives. So if 1 agrees with Brooks that electoral reform is necessary to “save America,” too then it is basically logically entailed that 1 likewise back upwards a novel constitutional convention inasmuch as that is literally the entirely means to convey virtually the presumptively necessary reform inward the absence of a Tinker Bell-like belief that the House would e'er agree, inward consummate contradiction of Roche's dictum, to repeal of the electrical current legislation too the "creative destruction" of the political arrangement that allowed them to larn to the House inward the commencement house too and then to assume positions of leadership. Brooks, like, say, Bernie Sanders, offers an altogether accurate diagnoses of the pathologies of our political system, but both create got a quite stunning incapacity or unwillingness to connect the dots past times suggesting that nosotros create got to address basic constitutional realities, including the possibility of a novel constitutional convention.
I am good aware that almost all of my friends, family—the mass that my married adult woman too I co-authored, Fault Lines inward the Constitution, concludes with a fence betwixt the 2 of us on the desirability of a novel constitutional convention—and professional person colleagues are appalled past times the real thought of a constitutional convention, too most are as appalled past times whatever proffer of straight democracy. (This reflects, I believe, a primal loss of organized faith inward republic itself, inasmuch as it requires to a greater extent than or less score of genuine regard for the powerfulness of one’s swain citizens to engage inward Publian “reflection too choice” virtually primal issues facing the polity. The Trump phenomenon, of course, does nada to heighten organized faith inward republic on the business office of the left.)
So instead nosotros (especially those of us inward the legal academy) pass all of our fourth dimension making “Herculean” arguments on how judges, correctly coached, could cure our ills. For to a greater extent than or less this involves expansion of the welfare state; for others, similar devotees of Richard Epstein too Randy Barnett, it could Pb to the invalidation of the New Deal, but both the Federalist Society too the American Constitution Society seemingly concord that the focus of our attending should live on on the judiciary too on reinforcing the take in that the Constitution is precisely terrific too needs entirely right interpretation past times honorable judges. I am outraged past times the theft of the spot that should create got gone to Merrick Garland past times the GOP, but it is but light-headed to tell that a to a greater extent than progressive Supreme Court would live on the cure for our national ills. But to choose the limitations of the judiciary, whether 1 is a liberal or a conservative, requires accepting the possibility that the Constitution itself needs pregnant non-judicially-imposed amendment, which entirely promotes feelings of despair too hopelessness given the truthful awfulness of Article V.
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