Monthly Archives: November 2011

Twelve minutes of popular sovereignty

5:55am: I close the door to my car and pull out onto the street. It’s chilly and dark. I don’t turn on the radio, because it’s only a two-minute drive. I always go to the polls in the early morning. To beat the crowds, I would say. But also because I like going alone. Sure, it’s fun to take kids into a voting booth and all that jazz. But it’s not the same. Ever sit in a pew in an empty church and stare at the stained glass? Or stand on a deserted football field after dark and look up at the posts?

5:56am: I pull up at the one four-way stop on the trip. I don’t know why and I guess it’s kind of awkward to admit this, but I always get mild butterflies in my stomach when I’m on my way to vote. Not like climbing the lift-hill on a roller coaster butterflies or 10 seconds before the whistle blows to start a rugby game butterflies; there’s nothing unknown about to happen. I think it’s more the connection to the process, the idea that I’m about to do something real and consequential. Something that will tie me to the past and tie me to the future.

5:57am: I pull into the parking lot and park the car. I live in the Nottaway precinct of the Providence District of Fairfax County in the state of Virginia in the United States of America.  Impassioned revolutions overthrow monarchs and tyrants, both then and now. But the alternative system, the democratic system, is held together by solving a logistical nightmare. And so this is where I vote: an old house on a couple acres of cleared land in a park. There are about a dozen cars in the parking lot.

5:58am: I walk past the party people. Virginia law does not allow any electioneering within 40 feet of the polling place, but 40 feet is not very far, and both parties are already stationed at their usual spots, at the edge of the parking lot in front of the sidewalk up to the front door of the house. Each side offers me a ballot, pre-marked with the party-endorsed candidates to serve as a guide in the booth. It brings to mind what I’ve read of 19th century elections, prior to the Australian ballot, when you voted with your own ticket and often got it from a party representative outside the polling place. I take one of each.

5:59am: I get in line. This is not like the 19th century. It’s dead quiet. No bands, no liquor, no fights. As Richard Bensel conveys in his majestic survey of voting in the 1800s, it’s safer and less corrupt now, but it’s also a lot less exciting and a lot less fun. There are four people ahead of me. No one says a word. Inside the house, we can see poll workers scrambling with final preparations. This is either the most exciting dullness or the most dull excitement in the world. At any rate, it’s some combination of those two words.

6:00am: A woman opens the doors. “Alright everyone, the polls are open!” And we shuffle into the house. Just past the vestibule I enter a small room, probably once a study, and proceed to the table labled “A – K.” Two older women are sitting at the table, one holding a thick book of names, the other a piece of paper covered in numbers and a stack of green cards. They will repeat their tasks 500 times or more today. But for now it’s fresh and exciting. Both of them are eating donuts and drinking coffee, the universal poll-worker compensation.

6:01am: I tell them my name. They look it up in the thick book, and then verify my address with me verbally. I can see my wife’s name just below mine. With both kids in tow for a mid-day vote, she will not have the same experience as me. The second woman calls out “Voter number 3” and crosses off the three on her piece of paper. Looks up at me and smiles. Then she hands me a green card. It’s says “Fairfax County Voter Card — Do Not Remove From Polling Place.” On the back are some instructions. Unlike most of the signage in the polling place, it is written in English only. By the end of the day it will be worn and wrinkled. But right now it’s pristine.

6:02am: I walk down the hall to the polling room. It’s not like the polling setups of my childhood in upstate New York, with the heavy metal stand-up voting machines and metal levers and huge handle that closes the curtain behind you. It’s both more old and more new than that. The actual voting “booths” are just tall desks, each with a small table-top touch-screen voting machine, almost like the old pictures you see of people dropping slips of paper into actual boxes. Not much privacy. But high-tech to the max. There’s an optical-scan option, but no one is taking it.

6:03am: I hand my green card to a poll worker. She directs me to a touch-screen, follows me over, and puts a keycard in the machine. I look around the polling room and at the three other touch-screen booths set up. At one is an older African-American man, holding a sample ballot from one of the parties and dutifully marking his choices. At another is a younger woman being assisted by a poll worker, her computer evidently malfunctioning. The third is empty, one voter having left and another yet to arrive.

6:04am: I mark each of my votes. The touch-screen is silent. No mechanical click like the lever supstate. No sound of graphite rubbing like the paper ballots. I take my time. Board of Supervisors. State Senate. County Sheriff.  At the end, the final screen includes a large flashing box that says “Click here to cast your VOTE.” I click and I cast. I walk away from the touch-screen. A poll worker hands me a sticker featuring an American flag and the words “I voted.” I put it on.

6:05am: I walk out of the voting room. There’s a door that leads through a screened-porch and out to the front yard. The line of voters has grown longer, but it’s still silent. A small garbage can stands ready to collect party sample ballot. I drop both of mine in.  I walk past the party tables, but they don’t even see me; all their attention is focused on those still-yet to vote.

6:06am: I climb in my car and look back up at the house.It’s still dark outside. All the lights are on in the house, and I can see people through the illuminated windows: reporting their names, being handed green cards, standing in the voting room. I turn the ignition, pull out of the parking lot and turn onto the access road. A long line of headlights streams my way. More voters. More citizens.

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Close enough for government work

The postal-employees union (APWU) is up on the air today with a new political ad. The  second-to-last  line of the narration is:

“Tell your Representative to vote ‘No’ on House Resolution 2309.”

As soon as I heard it, I knew someone had messed up:

1. There’s no way 2309 resolutions have already been introduced this Congress (it turns out only 460 have); and, more importantly,

2. There’s no way the APWU would be spending television ad money to fight a House resolution.

The problem, as I’m sure most Congress-jocks have already noticed, is that the APWU has seemingly confused the concepts of a bill and a resolution.  And indeed, that’s what has happened: the APWU is almost certainly concerned with proposed bill H.R. 2309, the Postal Reform Act.

My guess is that someone involved with the production of the ad thought the “H.R.” in “H.R. 2309” stood for “House Resolution” rather than “House of Representatives.” That’s a minor slip up, but it’s pretty sloppy and it’s pretty  important: a bill and a resolution are completely different things legislatively. Bills change laws. Resolutions do not. It doesn’t matter in the big-picture, but it doesn’t speak particularly well of the APWU’s legislative affairs acumen. (In the APWU defense, they do call it “a bill” in another part of the ad.)

It does, however, give us a good reason to review the different types of measures introduced in Congress:

Bills are proposed measures that will become law if passed in identical form by both chambers and not vetoed by the president (or signed over his veto). They are numbered with either an S. or H.R. prefix, depending on the chamber of origination.

Joint Resolutions, which are designated as H.J.Res. or S.J.Res. depending on chamber of origin, are identical to bills, but are only used for certain specific purposes, including proposing constitutional amendments, declaring war, and temporarily extended appropriations (known as a “continuing resolution” or CR).

Simple Resolutions, which are designated as H.Res. or S.Res. depending on chamber of origin, are not used to make laws. Instead, they tend to deal with internal chamber housekeeping, or non-binding public policy statements. As such, they do not require the concurrence of the other chamber. Examples of the uses of resolutions include: special rules from the Rules Committee in the House, commemorative legislation, creation of special or select committees, funding resolutions for committees, electing chamber officers, treaty ratifications in the Senate, and “sense of the House” or “sense of the Senate” legislation.

Concurrent Resolutions, which are designated as H.Con.Res. or S.Con.Res. depending on chamber of origin, also do not make law. They are otherwise like simple resolutions, except they address matters of the internal affairs of both chambers. Examples include annual budget resolutions and resolutions providing for the adjournment of Congress.

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Monday APD Blogging: Civil War and Western Politcial Development

[condensed from an academic piece I’m working on…]

Historians and political scientists have long viewed the civil war and its aftermath as a formative period of American political development. Across numerous dimensions of political life, the United States was radically altered between the beginning of secession in 1861 and the end of Reconstruction in 1876. Rights of citizenship, the structure and role of the military, the relative power of the presidency, taxation policies, and the structure of the party system were all strongly affected by the war. And decisive answers were obtained for two pressing questions of the first half of the 19th century: what was the future of slavery and does the ultimate authority within the federal system lay with the federal government or the individual states.[1]

There is also a sense  that wars, in general, are likely to have dramatic effects on the development of politics within a nation.[2] Throughout American history, wars have served as distinct moments of political change, as simultaneously the power relations of the federal and state government have shifted to address the necessities of war, while the wars themselves have altered the landscape underneath the feet of citizens and political actors.[3]

Here I discuss the development of the political structure of the western United States – the creation of new states, as well as the territories that would become these new states – during the civil war and Reconstruction. Although the civil war Congresses are best known for their attempts to deal with the secession crisis and their management of the war, the tenures of the 36th-39th Congresses are also marked by the most rapid and consequential alterations to the political structure of the burgeoning proto-states of the American west: the creation of new territories, the geographic alteration of existing territories, and the admission of these territories as states to the union.

When South Carolina left the union on December 20, 1860, the American west consisted of two states (Oregon and California) and 5 large territories, all of whose boundaries would be unrecognizable to a modern observer (see Figure 1). By the close of 1868 – prior to the readmission of most of the southern states – the political geography of the American west had largely been transformed into its modern (and thus final) form: Nevada, Kansas, and Nebraska had been admitted to the union, and the remaining 11 (new) territories would undergo virtually no serious political alterations prior to admission to the union over the next 40 years, save for the division of Dakota territory in 1889. For all intents and purposes, by the time of Grant’s election in 1868, the underlying political structure of the continental United States was complete (see Figure 2).


Figure 1. The United States of America in 1860, by legal land status

Figure 2. The continental United States of America in 1868, by legal land status

Causes

Why did the war affect western political development at all? Fundamentally, the answer lies in the the structure of the statehood process in the Constitution. Among the various plans discussed between 1776 and 1787, the one that appears in the Constitution is by far the most radical — it provides for total congressional control, without any specific mandated guidelines such as population thresholds and square mileage requirements. Virtually every other proposed plan, including 19th century plans to reform the system, included such mandates. As a consequence, the constitutional structure made the process inherently and fully political, subjecting the long-term process of new state creation to the short-term push and pull of day-to-day politics. Issues and events that had a strong impact on the polity necessarily had a strong impact on western state development. The civil war – being perhaps the single most consequential event in American history – is no exception.

The secession of the south from the union in 1860-61, the military conflict from 1861-1865, and the Reconstructive period that took place from 1865-1876 are all examples of the contingent strand of politics that affected the formation and construction of new states in the west. Although it is not possible to conclusively determine the exact effects of secession, war, and reconstruction on the development of the west – we would need to know the contemporary political geography of the west sans civil war – we can identify through the historical record the actions which were made because of the war, and thus were unlikely to happen without the war. This sort of counterfactual thinking requires a certain degree of structure.

We can organize our thinking about these changes by asking a few questions: first, would the institutional change have occurred at all if it were not for the contingent event? A “no” answer to this question would result in the strongest claim that we could make about an institutional changes relationship to the contingent event. A good example from our list of changes made in the 1860’s is the admission of West Virginia to the union. Clearly, without Virginia’s secession from the union, this institutional change would never have occurred.

A second-degree question: would the institutional change have taken place in the identical form if it were not for the contingent event? A “no” answer to this question implies something like this supposition: the New Mexico territory of 1850 was likely to be divided at least once at some point prior to its becoming a state (or states).  However, the decision to divide it with a north-south meridian instead of an east-west parallel was contingent on the civil war. Finally, would the institutional change have taken place at the time it did if it were not for the contingent event? This is the weakest claim, but not a trivial one, since the timing and sequence of these institutional changes are constitutive of the underlying structure of democratic aggregation in the United States, as well as highly consequential for the development of other future states and territories.

Again, although we can never be certain about any of these claims of contingency, one might expect that an event like secession and civil war would be most influential in the third class of effects (timing), somewhat influential in the second class (form), and least influential in the first class (direct consequence). And that appears to be the case with the 12 institutional changes that occurred in the 1860’s. Only West Virginia’s admission to the union can confidently be declared a direct consequence of the war that would not have happened otherwise. One additional change – the creation of Arizona – can confidently be said to be dependent in form on the war. And seven of the changes – the admission of Kansas, Nevada, and Nebraska, as well as the creation of Colorado, Nevada, Arizona, and Dakota territories – would not have happened when they did had it not been for the war. Only the creation of Montana, the redefining of Nevada, and the creation of Wyoming and Idaho seem relatively unrelated to the war.

We can classify the mechanism by which secession and war affected these institutional changes into three general groups: the secession of the south, worries about the secession of the west, and the desire to reinforce electoral victory in 1864 for the Republican party.

Secession

Ideological divisions over slavery had helped structure the politics of admissions to the union since almost the first days of the nation, and during the period from 1848 to 1860, slavery came to increasingly structure the politics of altering the territorial structure of the west.[4] After 1852, the political parties in the United States began to quickly drift toward an increasingly perfect correlation with the sectional division. By the 1857 fight over the Lecompton Constitution in Kansas, the deadlock in Congress over the alteration of the political structure of the west had become severe. Although two states (Minnesota and Oregon) were admitted to the union between 1857 and the beginning of southern secession, both of these institutional changes were aided by very precise political circumstances in the prospective state that led to barely-sustainable compromises to achieve their success. In the 35th and 36th Congresses (1857-1861), bills to organize new western territories were proposed and routinely defeated, both in and out of committee, by southern members of Congress and their (increasingly fewer) allies in the north.

Beginning December 20th, 1860 with the secession of South Carolina, the southern ideological wing of Congress slowly left Washington, D.C. By February 1st, 1861, they had lost a sizeable portion (and the most radical wing) of their voting power in the national government. In terms of policy output, this was the equivalent of an exogenous shock: although none of the existing preferences had changed about the organization of the west, only one side of a two-sided debate remained in the democratic assembly. Without opposition, they were free to act. And act they did. The Republicans in Congress enacted four major alterations to the west as quickly as they possibly could in the 2nd session of the 36th Congress.[5] In just over a month, they admitted Kansas to the union and created the Colorado, Nevada, and Dakota territories. None of these alterations would have been possible without the secession of the south.[6]

Fears of Western Rebellion

The second mechanism by which the war affected the process of institutional change in the west was through the general fear of a western rebellion and secession from the union. Although the exact nature of the relationship between the states and the federal government had been up for debate for almost two generations, the reality of the southern secession in 1860-61 quickly turned all of the theoretical arguments of the past 70 years into questions of immediate and concrete reality, including questions that had not been fully contemplated over the years: if the south was free to leave the union, was the west? If the south (free or not) did leave the union, did they have any claim over the western territories? If the north made peaceful disunion with the south, did that affirm the concept that peaceful separation from the union was both legal and attainable for other states, or for western territories? It is easy to see how these ideas made northern leaders, trying to hold the union together, quite nervous.

Of greatest concern to the union, however, was the competition with the south for the territories. There was no compelling reason to believe that the western territories, particularly political communities in the west that had been denied territorial status over the past decade, would side with the union in the war. The combination of these fears – the rebellion of the west into its own nation and the competition with the south for the allegiance and control of the territories – and the reality of watching their fears realized, spurred Congress into action during the war.

The creation of the Arizona territory is a good example.  After the New Mexico territory was created as part of the compromise of 1850 (the Gadsden Purchase was added in 1853), there was a period of about 5 years where there was very little local or national voice for further division of the territory. Staring in 1856, however, residents of the southwestern portion of the territory living in Tucson began to petition Congress to divide the state along an east-west line. From 1857 until 1859, residents of Tucson annually sent a delegate to Washington from their proposed territory, but Congress refused to seat him. There were sympathetic politicians in Washington, particularly southerners eager to see the creation of new plausibly pro-slavery states, and bills were introduced in both chambers of Congress for the creation of Arizona annually from 1857 to 1860. Northern Republicans had little interest in creating a new southern-leaning territory, however, and correctly pointed out that the 1860 census revealed that Arizona county (the western portion of New Mexico territory) had only 6,482 residents, far too small a population to merit a territorial government. With the northerners firmly in control of the national government after the 1860 election, the prospects for Arizona territory looked slim.

The secession of the south, paradoxically, was just what Arizona needed. With the southern portion of the New Mexico territory largely a pro-confederacy population, territorial secession conventions took place at both Tucson and Mesilla in March of 1861. The conventions seceded the territory from the union, created a provisional territorial government, and sent out a petition to the Confederacy for admission.[7] By January, 1862, the Confederate States of America had passed legislation organizing the territory of Arizona, and had accepted a delegate from the territory to their Congress. Arizona was officially a political institution of governance, only it was now in the Confederacy.

The union did not wait to act. Lincoln dispatched the Army to occupy Tucson, and Congress prepared legislation in March to create the United States territory of Arizona. The decision was made to split the old New Mexico territory along a north-south line, in order to reduce the influence of southern-sympathizers in both the new territory as well as the (new) New Mexico territory, as well as to avoid the appearance of rewarding rebel communities in the west who might seek to organize future territories by seceding from the union. The legislation for the territory stalled for a bit in Congress, and Arizona territory was not officially created until February 24, 1863, long after the Union Army had retaken control of the area.

Manipulating the 1864 Election

The third mechanism that contingently affected western institutional change during the civil war era was the desire of the controlling pro-war Republicans to ensure electoral victory in the 1864 election. This contingency has been well-documented.[8] By the spring of 1864, disillusionment in the North with the progress of the war had emboldened the Democrats to support a platform of peaceful settlement with the south, and they had nominated a candidate, General George McClellan, who was committed to ending the war. The Radical Republicans in control of Congress saw the reelection of Lincoln as absolutely vital to preserving the war effort.

Admitting additional western states to the union prior to the 1864 election could potentially put Lincoln over the top if the election were close. Although any newly admitted state would likely have a low population, the new state would have at least the guaranteed minimum of three electoral votes, and that could make the difference in a close election. The admission of Nevada to the union is relatively well-known as the best example of a short-term electoral incentive shaping a state admission to the union.[9] Nevada’s population in 1864 was a paltry 6,857, far fewer people than any of the other existing western territories save Dakota. Still, Nevada would stand to be the most reliably Republican state of any of the territories if it were admitted to the union prior to the 1864 election. In addition, the Republicans saw other advantages in the admission of Nevada: it might increase their chances of holding onto the Senate, and it also would add another state inclined to vote for passage of the 13th amendment.[10]

Consequences

At the time of the final readmission of the southern states to Congress in 1870, the political structure of the American west looked completely different than it had just 10 years earlier. The rapid pace of western institutional change, combined with the utterly contingent nature of many of the changes, had created a continental political structure whose details could hardly have been fathomed by even the most creative political thinkers of the 1850’s. Even more startling, from the perspective of national politics, was that the entire political role of the territories for the previous 25 years – as the explosive sideshow setting where the factions of the national slave debate could engage each other – had ceased to exist with the military defeat of the Confederacy and the passage of the 13th amendment barring slavery. Whatever the civil war did to change the nation, its final resolution profoundly closed one chapter of American territorial history, without anyone clearly seeing what was to come.

Numerous historians of the American west have noted that the contours and features of the territorial system in the first half of the 19th century were dramatically different than the features of the system after the civil war.[11] The disappearance of the slavery issue, the rise of the west as a section with a distinct political interest, and the hegemony of the Republican Party’s control of the national government all served to radically alter the place of western institutional development within the national political context. For the average citizen, the disappearance of the slavery issue had rendered the importance of the territories near nil. To the national politicians of both parties, the prospect of using new western state admissions to bolster their partisan numbers had to be tempered against the ideological cleavages that pitted westerners against the interests of both the northern Republicans and Southern Democrats. Without the stability of the slavery issue (as discussed in chapter 6), use of the territories as sectional leverage became much more risky; the signal had become noisy. And to the ruling Republican Party of the late 19th century, the western territories seemed more useful as sources of patronage than as prospective states.

One consequence of this that could not have been foreseen during the rapid developments of the 1860’s was the sheer finality of the enterprise. After 1870, there were virtually no adjustments to the boundaries of the existing territories, and no territories were created, save the division of the Dakota territory into North and South just prior to statehood.[12] Over the next 43 years, these territories were admitted to the union as states. But their final boundaries – indeed, the final contours of the American federation – were the ones drawn in the middle of the civil war. The exogenous shock of the war led to a highly contingent development of the western political structure, and the cataclysmic changes that the end of the war brought upon American national politics served to solidify those changes into place.

A second consequence of these rapid and contingent changes made to the western political structure was a certain amount of buyer’s remorse, both locally in the territories and also among national politicians. The Republican Party, prior to the war, had long sought to encourage western migration and the political development of the western territories, as these types of things both naturally fit with their free labor, free soil ideology while simultaneously creating more Republican voters and new Republican states. The push to create the new territories that began and the late 1850’s and succeeded after the secession of the southerners was driven in part by a desire to enlarge a coalition that, by 1870, had in many ways ceased to exist. Without the anti-slavery narrative, it became more obvious that western Republicanism was differentiable from Northern Republicanism on a number of key issues, notably silver.[4]

The emergence of a third economic section of the country presented a new wrinkle to the statehood politics of a two-party system. The addition of a new western state to the union was far less palatable to the existing states when the benefit was reduced from a permanent vote against slavery to a partisan agreement on the speaker, but certain differences on economic policy. Republican enthusiasm in Congress for the admission of new states, even Republican-leaning states, waned in the wake of the civil war. The prospect of further dividing the existing territories, and thus creating even more potential western states, was unpleasant, if not unthinkable. Indeed, bills put forth in Congress in the 1870’s were just as likely to suggest shrinking the number of western territories – through the abolition of one or more and the expansion of the others – as they were to propose the division of territories into new potential states.

In the territories themselves, the buyer’s remorse evidenced itself somewhat differently. Here, the politics was local, and the rush to create territories in the previous 15 years in what had been relatively unpopulated areas led to a somewhat incongruent set of political communities. This was exacerbated by the unwillingness of Congress to alter the territories during the late 19th century. This is not to say that efforts weren’t taking place to alter the structure of western government. To the contrary, the House and Senate committees on Territories were kept busy with a steady stream of petitions arrived at Congress between 1865 and 1880 asking for either the division of a territory, the rearrangement of territorial boundaries, or the admission of territories as states to the union.[13]

Notes


[1] Eric Foner and American Historical Association., Slavery, the Civil War, and Reconstruction ([Washington, D.C.]: American Historical Association, 1997), David Morris Potter and Don Edward Fehrenbacher, The Impending Crisis, 1848-1861, 1st ed., The New American Nation Series (New York: Harper & Row, 1976).

[2]David R. Mayhew, “Wars and American Politics,” Perspectives on Politics 3, no. 4 (2005).

[3] See Bruce A. Ackerman, We the People (Cambridge, Mass.: Belknap Press of Harvard University Press, 1991), Akhil Reed Amar, The Bill of Rights : Creation and Reconstruction (New Haven ; London: Yale University Press, 1998), Louis Fisher, Presidential War Power, 2nd ed. (Lawrence, Kan.: University Press of Kansas, 2004).

[4] See John Ashworth, Slavery, Capitalism, and Politics in the Antebellum Republic (Cambridge [England] ; New York: Cambridge University Press, 1995), Eugene H. Berwanger, The Frontier against Slavery; Western Anti-Negro Prejudice and the Slavery Extension Controversy (Urbana,: University of Illinois Press, 1967), Jesse T. Carpenter, The South as a Conscious Minority, 1789-1861; a Study in Political Thought (Gloucester, Mass.,: P. Smith, 1963), Arthur Charles Cole, The Irrepressible Conflict, 1850-1865 (New York: The Macmillan Company, 1934), Richard Patrick McCormick, The Second American Party System; Party Formation in the Jacksonian Era (Chapel Hill,: University of North Carolina Press, 1966), Roy F. Nichols, The Disruption of American Democracy (New York,: Collier, 1962), Potter and Fehrenbacher, The Impending Crisis, 1848-1861.

[5] The legislation was done quickly for a number of reasons, not the least of which was that the political environment was a great unknown, and it was not out of the question that a settlement of the secession crisis might happen prior to the end of the 36th Congress and the southern members of Congress might return to the chamber, and recommence their obstruction of western political development.

[6] And in one sense, they were a concession toward the south. The territories were all admitted without reference to slavery, a sticking point that had kept the north and south deadlocked for the previous 5 years.

[7] Paul L. Allen and Peter M. Pegnam, Arizona Territory, Baptism in Blood (Tucson, Ariz.: Tucson Citizen Pub. Co., 1990), Arizona. Legislative Assembly. and Anson Peasley Keeler Safford, The Territory of Arizona : A Brief History and Summary of the Territory’s Acquisition, Organization, and Mineral, Agricultural and Grazing Resources : Embracing a Review of Its Indian Tribes, Their Depredations and Subjugation : And Showing in Brief the Present Condition and Prospects of the Territory ([Arizona: The Legislative Assembly], 1874), H. C. Stinson, Arizona : A Comprehensive Review of Its History, Counties, Principal Cities, Resources and Prospects, Together with Notices of the Business Men and Firms Who Have Made the Territory ([Los Angeles: s.n.],, 1891), Microform.

[8] See Lauriston, “Abraham Lincoln and the Statehood of Nevada..”, Pomeroy, The Pacific Slope; a History of California, Oregon, Washington, Idaho, Utah, and Nevada, Charles Stewart and Barry R. Weingast, “Stacking the Senate, Changing the Nation: Republican Rotten Boroughs, Statehood Politics, and American Political Development,” Studies in American Political Development 6 (1992).

[9] Stewart and Weingast, “Stacking the Senate, Changing the Nation: Republican Rotten Boroughs, Statehood Politics, and American Political Development.”

[10] Earl S. Pomeroy, “Lincoln, the 13th Amendment, and the Admission of Nevada,” Pacific Historical Review 112 (1943).

[11] See John Porter Bloom, The American Territorial System; [Papers] (Athens,: Ohio University Press, 1973), Jack Ericson Eblen, The First and Second United States Empires; Governors and Territorial Government, 1784-1912 ([Pittsburgh]: University of Pittsburgh Press, 1968), Edmund Steele Joy, “The Right of the Territories to Become States of the Union” (Thesis Ph. D. –Columbia college., Advertiser printing house,, 1892), Lamar, Dakota Territory, 1861-1889: A Study of Frontier Politics, Gary Lawson and Guy Seidman, The Constitution of Empire : Territorial Expansion and American Legal History (New Haven: Yale University Press, 2004), Earl S. Pomeroy, The Territories and the United States, 1861-1890; Studies in Colonial Administration (Seattle,: University of Washington Press, 1969).

[12] Even state admissions were not common. Referring back to figure 2, one can see that alterations to the political system were few and far between in the late 19th century. Between the 1868 and 1889, only one change was made – the admission of Colorado as a state in 1876. No other 20 year period in American history had seen fewer than 8 changes or fewer than 3 state admissions. Territorial politics continued in the territories, but the collective will in Congress seemed uninterested in any further development.

[13] For an excellent comparison of old and new state Republican views on Silver, See Stewart and Weingast, “Stacking the Senate, Changing the Nation: Republican Rotten Boroughs, Statehood Politics, and American Political Development.”

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Shoe Leather

One of my earliest memories of politics is walking door-to-door with my father when I was about five years old, talking to voters and handing out palm cards with him when he was running for local office. Every night after he got home from work, we’d quickly eat dinner, make sure the trunk of the car was loaded with literature and lawn signs, and head off to some neighborhood in town that we hadn’t been to yet, ringing doorbells until 7:30pm, the universal time in our neck of the woods at which political cold-calls were deemed to be acceptable.

From my point of view as a child, this was the essence of campaigning. We got so many local and state-level candidates knocking on our door that I just assumed this was how you campaigned: you personally talked to as many people as possible, and tried to convince them to vote for you. Of course, this is not how contemporary federal election campaigns work; instead, mass media — and particularly television ads — is the heart of campaign strategies in the modern age. Still, door-to-door campaigning is still the essence of local campaign activity in many places. And in the all the campaigns I’ve worked on in my life, it is always my favorite part.

Four related thoughts about door-to-door campaigns and local elections:

(1) Flying blind and poor. Local elections are really the last place left in electoral politics that public opinion polling is not part of the equation at all. There’s no polling of the issues, and there’s no polling of the horse-race. And if you have some money to spend, it’s never enough to get on the airwaves. The upshot is that local races tend to resemble 19th century campaigns, both descriptively and strategically. Candidates try to spread their name and a very basic message through free media, personal contact, and palm cards. They judge how they are doing on intuition and non-random opinion samples.

As such, the races can be both more exciting and tougher to approach strategically: you never know if your plans are effective, and you really don’t know what is going to happen until the votes are counted. Consequently, pretty much all strategy revolves around some version of pushing your name and face out there on the cheap. Which means hitting the shoe leather. The irony, of course, is that door-to-door campaigning is way more effective than mailers or phone callers or other forms of mass campaigning.

(2) A different shamelessness. Local politics has a different personality screen than national politics. If you want to run for Congress, you usually have to be able and willing to beg total strangers for money, over and over again. If you want to run for a local office, you usually have to be willing to knock on people’s doors, interrupt their dinner, and ask them to vote for you. These are very different personal attributes. Some people, of course, have both. Some have neither. But there are many people like my father, who would never have been able to beg people for money, but was able to at least stomach interrupting dinner and the occasional door slammed in his face.

Sometimes this isn’t the case. A local election can be so locked-down by a party that you don’t even really have to campaign after you get the nomination, and getting the nomination might be more about inside politics among local leaders than any actual campaigning. And some towns are so small that you can know, or at least know of, most of the voters. But those are the exceptions, and unless you have an uncontested race, the lock-down situation is never such a shoe in that you can kick back.

(3) The fieldcraft of shoe-leather campaigning. There are all sorts of theories about what you are best off doing when you go door-to-door. Some people think it’s best to treat it as GOTV activity; just hit the neighborhoods that are solidly in your partisan camp, and encourage them to go to the polls. Other people think you want to go right to the swing districts and hit the independents.  At any rate, the name of the game is approaches per hour and memorable contact, but mostly the former. There are some things you can do to increase approaches per hour without any costs: these include running (literally) from house to house; concentrating on dense population neighborhoods, and working public events. It’s no surprise that town Halloween parades are filled with local candidates; the greet/hour rate is incredible.

But often, approaches/hour is at direct war with memorable contact; if you want to get to more people, you’ve got to spend less time with each of them. Which raises the obvious question: what are you actually trying to accomplish when you ring the doorbell, and what’s the most effective way to do it? There’s virtually no political science literature on this question, but there are generally accepted maxims: first and foremost, you aren’t there to debate policy. There’s a fantasy in many candidates’ heads that they will convince someone about something on a front porch, and that person will not only vote for them but become a cult follower and volunteer extraordinaire. Actually, it’s just a complete waste of time. On the other hand, however, if you can get someone to ask you a question that you have an easy and surefire answer for, you probably just collected a vote. So most candidates use a basic formula: say your name and what office you are running for, tell them one reason you are running, and then offer them a piece of literature and ask if they have any questions.

My dad preferred a more personal/GOTV strategy, which I still think is a good one, and definitely a  more efficient one. He simply gathered the names of the residents, and then calmly introduced himself by using both his and their first name, and tried to shake their hands. “Bill, I’m Dave. I’m running for county judge. [hold out hand] I hope you’ll vote for me, but either way I want to remind you to vote next month. Here’s a pamphlet about me.” If they said anything, great. If not, he added a “We’ll see you at the polls” and left. There’s no way my dad ever read Home Style, but his door-to-door strategy tracked right into Fenno’s Member A anecdote: you will never lose a vote from someone on a first-name basis with you. This strategy, however, only works for the candidate himself; campaign workers going door-to-door have to stick to pretty basic lit-drop scripts.

Besides the approach rate and the contact style, one other key aspect of shoe-leather fieldcraft is how you handle getting the door slammed in your face, both figuratively and literally. One way to deal with this is to find some ways to preempt it; that was certainly one value to having a 5-year old tag along with you while you walked the neighborhoods. People just don;t seem to be as mean if there are children around, either their own or yours. But you are still going to get a high percentage of people who refuse to engage at even the most basic level; this problem leads a lot of door-to-door campaigners to believe that you are almost better off with the people not being home, so you can just lit-drop (always with a personal scribble on it!) and be done with it. I don’t think that’s quite right, but I do think it’s the right impulse; there’s only a very narrow band of people you are trying to reach by door-to-door’ing — people who weren’t going to vote or weren’t going to vote for you, who now will show up and vote for you. The probability of those people being among the percentage who slam the door in your face is so small as to not be worth dealing with. And the golden rule, of course, is don’t create a negative memorable moment. So don’t fight for a contact. Just drop the palm-card and be done with it.

(4) Turning the tables. The flip side of door-to-door is what you do when a candidate knocks on your door. I see so many people completely freeze up when they run into a politician standing outside the grocery store or subway station, like it’s rude or something to talk to them when they approach you. Whenever candidates knock on my door, I always ask them the same question: what got you into politics? It’s a good question for two reasons. First, many local candidates don’t have a stock prepared answer to it. If you ask them why you should vote for them or how they feel about policy X, you’ll get some robotic nonsense.  Second, it tells you a lot about who you are dealing with. Not substantively; I don’t really care why people got into politics. But it’s pretty darn easy to gauge a person’s honestly and sincerity when they have to answer that question on the spot. Some people go into some bullshit about helping people and quickly shift to one of their key policy ideas. Others tell a story about a particular event. And some just stare blankly and then come up with something really lame. But no matter what they say, you can usually see right through it and figure out if it’s the kind of person you want running the town council.

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Voter prep for local elections (plus my VA endorsements!)

On Tuesday, Virginia will hold it’s biennial state and local elections. As I’ve written about before, I don’t think there’s any doubt that the preponderance of important government decisions made by your elected officials each year are concentrated at the local or state level. If you have kids, I’m positive this is true: unless there is a depression or conscription, the school board, local government, and state government decisions over the public schools will be the most important for you and your family.

The problem, of course, is threefold: first, many people either don’t realize how important local government is, or they flat out disagree about its importance. Second, it’s more difficult to be even minimally knowledgeable about local politics than national politics in the run-up to an election, because it’s often not something you can pick up through osmosis in the last few frenzied weeks. Finally, there’s much less social pressure to vote in the local elections, so even people who vote religiously in the federal elections sometimes don’t pay attention to the local campaigns or issues.

All of this results in some people consciously deciding not to vote because “they don’t know anything about the candidates,” or “it’s not that important.” (This is further complicated in Virginia, because we have our state and local elections in the odd-numbered years. That’s theoretically good because the federal elections don’t overshadow the state elections, but it’s bad because turnout goes way down and the social pressure to vote evaporates.) I think it is a mistake to decline to vote for these reasons. And I think a lot of people overestimate how much time they will need to spend in order to cast a meaningful vote in a local election.

So if you weren’t planning to vote because you feel like you don’t know anything about the state or local issues in your area, let me offer you this: by the time you finish reading this first bullet point on this blog post, you’ll be more than ready to go vote, even if you don’t do any further research. And if you’re willing to read the rest of the blog post and then invest another 60 minutes of effort, I promise you’ll feel nearly as comfortable voting in the local elections as you do in the federal elections.

Let’s start with the fundamental tip:

1) It’s perfectly fine to use party affiliation as 100% of your knowledge. A lot of observers and intellectuals deride partisan voting, but if you don’t know much about the politics of an election it is absolutely the best shortcut available. That’s true for the federal elections, and it’s also true for the state and local elections. Yes, not ever person affiliated with a party agrees with the party all the time. And yes, state and local parties don’t perfectly match their national counterparts. But it’s close enough often enough that if you prefer one national party to another, it’s worth voting that way in state and local elections. And if you don’t even know what national party you like, just ask yourself this: would you prefer somewhat more (or somewhat better quality) public services in exchange for slightly higher taxes, or would you prefer somewhat fewer  (or somewhat worse quality) public services in exchange for slightly lower taxes. If it’s the former, vote for Democrats. If it’s the latter, vote for Republicans. That sounds absurdly simple. but it’s a close enough proxy most of the time in a local election to make your vote credible.

You now have no excuse: go to the polling place, pick all the candidates affiliated with your party, skip all the races that are contested non-partisan (more on that in a minute), read the bond issues and decide on the spot, and pat yourself on the back as you leave.

You can stop right now if you want. But here are four (ok, four and a half) more tips that take less than hour to implement and will really improve your confidence about local voting:

2) Understand the basic structure of  your governments. Where I live in Virginia — Fairfax county — we have a county Board of Supervisors that consists of 9 district representatives and a chairman elected by the whole county. The terms are four years and collectively appoint the county chief executive. We also have two elected executives — a commonwealth attorney and a sheriff, both elected county-wide on four-year terms. Finally, we have a school board, which has a representative from each of the same 9 districts, plus three at-large members elected county wide. All terms are four years. This is a pretty standard local structure: you either have a town or county board, plus a town or county executive, plus a school board and a few other elected executive officials.

As with many states, Virginia has a legislature with an assembly on a 2-year term and a Senate on a 4-year term, plus a governor, lieutenant governor, and an attorney general on 4-year terms. I learned all of this in less than 2 minutes by going to my county government website, where you can also learn the responsibilities of each office.

2a) Learn what offices are up for election this year. This information will usually be available on the same website that gives you the structural information about the local government. All you really need is the offices that are up and the list of candidates for each. In my case, the whole school board, the whole board of supervisors, both county elected executives, and the state assembly and senate offices are up this year.

3) If there’s a burning issue in your local community, figure out how you feel about it. If one exists, it will usually be pretty obvious. It might be property tax rates, it might be road conditions, it might be commercial zoning issues. It could really be anything. In northern Virginia, it’s traffic congestion. Once you’ve identified the issue, talk to a few people, think about how you feel about it, and then decide (a) if anything can be done about it; and (b) what that should be. And really pay attention to (a). Everyone from the dogcatcher on up to the governor says they are concerned about traffic in northern Virginia, but only some people can do anything about it. Everyone else is just selling you a bill of goods. Similarly, if there is a bond issue or other referendum on the ballot, read it ahead of time and, if you don’t have a strong opinion, consider looking into it.

4) Check out some party and candidate websites. Once upon a time, it might have been difficult to find out about local candidates. Not anymore. Here are my two candidates for Board of Supervisors: Chris Grisafe and Linda Symth. They have websites similar to candidates for Congress. Same thing for the local political parties in my county. If you want to get into the nitty-gritty of policy positions, that’s great. But when you check out the candidate websites, you might be better off (hold your breath, elitist intellectuals!) looking over their biography pages. There’s a perfectly reasonable case for gyroscopic representation; that is, voting for someone because you think they have a similar background or lifestyle or outlook as you, and not worrying about their specific policy positions, but instead trusting that they will reason the same way you do. It’s also noteworthy that some offices are non-partisan, like school board in Fairfax County. That means you can’t use the party shorthand in the voting booth. So make sure you check out those candidates in particular.

5) Gather some endorsements, preferably from a source you trust — like a friend or a newspaper. This is the final step. Now that you have some intuition about the candidates, run a diagnostic by getting some independent opinion. For instance, I was able to check my intuition  for school board against the Washington Post endorsements. If your friend or the newspaper confirms what you already thought, then you’re done. If they don’t, think through their argument for 10 minutes and see if you change your mind. If so, great. If not, also great. But don’t belabor it.

Once you’ve done all of those steps, run a self-check on where you stand. You may have determined that you prefer one party or the other. Great! Just write down who you like in any non-partisan race and vote for all the partisan candidates in the other races. If you like candidates across the parties, download a sample ballot (again, often available at the county website), mark your choices, and bring it with you to the polling place. It’s also ok to skip races if you really have no opinion. Nothing wrong with that!

It’s that easy. And I can’t help but reiterate: you don’t need to do very much, or really any, research to be a credible voter in local elections. The party cue will usually get you 95% of the way there, and a bit more research will do the rest.

And in case you’re reading in Providence district of Fairfax County in Virginia, here are my specific endorsements for Tuesday (I have only endorsed races where I have a clear preference):

State Senate (district 34) — Chap Peterson (D)

Providence District Rep to Board of Supervisors — Linda Q. Smyth (D)

School Board At-large (pick 3): Theodore Velkoff, Ilyrong Moon, and Lolita Smoak

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Rank’em: Constitutional amendment edition

When I was a kid, my family used to spend a lot of time on our screened porch, mostly playing cards but sometimes playing old-school parlor games. Often, that meant rank’em, which entailed the following: a question that forced you to rank some set of things on some scale, a set of ground rules to guide you, 20 minutes for each person to come up with their answer, and then a discussion among the participants, hopefully heavy on the merits and light on the mocking/fights.

So here we go…rank’em!

Question

If you were forced to repeal an unspecified number of amendments to the U.S. Constitution, in what order would you rank them, #1 being the one you’d jettison first and #27 being the one you’d only give up after all the others were already gone?

Ground rules:

A. The game is played in present-day America.

B. Repealing an amendment does not go back and change history. You are merely setting the terms for a new Constitution that will apply starting today  (i.e. repealing the 13th amendment does not reinstall slavery in Kentucky, it just opens up the possibility of a state adopting slavery; likewise, repealing the 26th amendment does not end the right of 18-year-olds to vote, just ends the prohibition on states having higher voting ages).

C. No future amendments are allowed. Nothing can be re-enacted.

D. No assumptions about SCOTUS decisions are allowed (i.e. you aren’t allowed to repeal the 15th and 19th amendment on the grounds that the modern court would read those voting rights into the 14th amendment); nor are future SCOTUS decisions allowed to impact things.

E. Do not rank the Prohibition amendments (18 and 21); that’s a paradox we don’t need to deal with here.

So go ahead, rank’em.

Here is my annotated answer, 1 to 25. They are grouped in categories for intellectual purposes. To me, the key to this rank’em is trying to imagine what the effect of removing the amendment would be today, while setting aside the importance of the amendment historically. As it turns out, I think, many of the most important amendments historically are more or less functionally inert today, because of changing norms. It’s also important to weigh the impact of an amendment; many of the amendments that are still fully functionally have trivial outcomes for the polity.

Amendments that are more or less trivial

1. The 27th Amendment – Precludes adjustments in the pay of Members of Congress from taking effect prior to the next congressional election. It serves little purpose: Members are loathe to raise their own pay in any case, and the Ethics Reform Act of 1989 sets up an automatic adjustment system which renders the entire prohibition academic. Even if it was fully functional, it’s just not a very big deal. I don’t think there’s any doubt that this is the first one you’d want to jettison, unless you have a specific beef with another amendment.

Amendments rendered mostly trivial in the modern age

2. The 9th Amendment –  Conveys that rights of the people exist beyond those enumerated in the Constitution. This may have been an open question in 1791, but I don’t think it is now. In theory it may convey that certain specific rights exists (such as those found in the Declaration of Independence), but in practice it merely suggests something to keep in mind when interpreting the rest of the Constitution.

3. The 3rd Amendment – Prevents forced quartering of troops in private homes during peacetime.  A concern that has never materialized since the American Revolution. Now, that could be because of the existence of the amendment. But somehow I doubt it.

4. The 13th Amendment – Prohibits slavery. I can’t see any possible way that, absent this amendment, slavery returns. And if such a situation did arise, it would probably be precipitated by crises that had already left most of the Constitution in tatters.

5. The 15th Amendment – Guaranteed suffrage regardless of race. This is a tricky one because while the general principle is very well ingrained in our society and enshrined in state constitutions, there are continual worries about racial discrimination in voting access and such. Still, I can’t see any states enacting measures that fundamentally cross the basic principle of voting equality.

6. The 19th Amendment – Guaranteed suffrage regardless of gender. Like slavery and racial restrictions on voting, shouldn’t be a problem going forward in the absence of the amendment, especially because women form a voting majority or near-majority in every jurisdiction. I rank it below the 13th and 15th, however, because I can imagine some future zany state system in which women and men had different legal voting arrangements (like different age requirements or something). However unlikely that would be, it’s even more unlikely along racial lines.

Minimally Consequential Amendments

7. The 10th Amendment – Powers not delegated to the federal government or prohibited to the States, are reserved to the States or to the people. More or less an implied truism of the Constitution, and described as such by SCOUTS in 1931. Very rarely comes into play, but on occasion the Courts will use it to strike down federal laws forcing state actors to implement federal programs.  And no, I don’t think it will come into play in the health care rulings.

8. The 11th Amendment – guarantees states sovereign immunity from suits brought against it in federal court. I suppose I don’t know enough about the jurisprudence to judge its importance, but my sense is that, while it might trigger a flood of federal lawsuits against states, the substantive outcomes would not have massive ramifications. But I reserve all rights to be dead wrong about this, and I’m open to contrary arguments.

9. The 24th Amendment – Bars poll taxes. Poll taxes were already on their way out in 1964; at the time of adoption, only five states (Virginia, Alabama, Texas, Arkansas, and Mississippi) still had them, whereas all the states of the former Confederacy had them in 1920. This is the first amendment on the lis, however,t that I think might stand a reasonable chance of actually shaping a core democratic function; I could imagine a state implementing a poll tax today if it were repealed.

Consequential but not inherently important

1o. The 12th Amendment – Revamping of the presidential selection system. It’s an improvement on the old system — in which each elector got two votes and the second place finisher became VP — but the old system could have been lived with. The party system was what broke it in the 1790s, but also would have made it work had they stuck it out. The debacle in 1800 was a mistake, and I think parties would have figured out a way to ensure that no future Burr got all the second elector-votes that created the tie with Jefferson.

11. The 26th Amendment – Lowers the voting age. Or more precisely, bars states and the federal government from setting the voting age higher than 18. I’m quite sure that, absent the amendment, at least a few states would have a voting age of 21. Although I disagree with that policy (and mostly agree with Jon Bernstein), I don’t see it as particularly consequential as a substantive matter, and I’d be fine with a federalism approach to voting ages. Most of the benefits of a lower voting age are related to participatory democracy, not substantive policy outcomes.

12. The 22nd Amendment – Term limits for the President. This is the first amendment on the list that I think a sizeable number of people might want to kill. And I can definitely see the argument. But I’m no fan of the presidency, and I don’t like the idea of one person monopolizing it for someone’s entire childhood. Perhaps a three-term limit would have been better, but I’m definitely of the mind that a two-term limit is preferable to no limit.

13. The 23rd Amendment – DC voting rights for President. As far as symbolic amendments go, this is a good one. But without voting rights in the House, it’s a halfway measure that has never had any substantive consequence. Still, we are talking about the right to vote here. So I’d need a strong reason to move it further up the list and jettison it sooner.

14. The 20th Amendment – Adjusting the start date of terms of the Members of Congress and the President. I’ve written an extensive blog post on this, which hopefully will convince you that I haven’t given it too much priority here.

15. The 25th Amendment – Makes provisions for the replacement of the Vice President if he leaves office and provides for the situation of the incapacitation of the President. One of the amendments that’s almost never important, but could be strikingly important. I wrote an offshoot about this a few weeks ago.

16. The 7th Amendment – Trial by jury in civil cases. I do not have a good feel for just how important this is. On the one hand, my sense is that a large percentage of Americans will never be involved in a serious civil case. On the other, it’s probably a pretty strong bulwark against crony capitalism to have juries punishing corporate malpractice. But I honestly don’t have a great feel for how its repeal would condition state law, etc.

Important but not foundational amendments

17. The 8th Amendment – Bars excessive bail and cruel and unusual punishments. I consider this the least important of the criminal defendants’ rights in modern times. Most states have constitutional or statutory defendants’ rights that go beyond the basic federal Constitutional rights, and the range of acceptable punishments in the modern era are certainly narrower than in the late 18th century.

18. The 16th Amendment – Empowers Congress to impose graduated income tax.  Pollock v. Farmers’ Loan & Trust had declared income taxes on non-wage income (such as investment or rent income) to be unconstitutional non-apportioned direct taxes. Whether an income tax on wages could be structured successfully without creating massive tax havens, disproportionately favoring the wealthy, or creating other economic problems, I do not know. But I’m guessing the answer is that it could not be. Therefore, pretty important amendment given the structure of modern revenue-raising in the United States.

19. The 2nd Amendment – Right to bear arms. I don’t own any guns, and I’m not a huge gun-rights guy, especially for a libertarian. For instance, I have no problem with background checks and purchase limits and other non-fundamental restrictions.  But when you watch how state-sponsored thugs in Iran or elsewhere assault private citizens on their own property with total fearlessness and impunity, it makes me 100% in favor of  the Heller decision. I’m sure many people would jettison this much sooner.

20. The 17th Amendment – Direct election of Senators. I’ve written an extensive blog post on this amendment as well, specifically dealing with the idea of repeal. In the modern environment, malapportionment and the filibuster already create tremendous public angst about the Senate; returning to the old selection system would only increase that angst.

Uniquely important, but not foundational

21. The 14th Amendment – Much of the 14th amendment — the implicit setting of the maximum voting age at 21, the barring of former rebels from federal office, the validity of the public debt (ed: well maybe not that one!) — is irrelevant now. But the relevant parts — the citizenship clause, the due process clause, and the equal protection clause — form the basis of the modern constitutional structure and the relationship between the States and the Constitution. It’s very easy to imagine a democratic republic without the 14th amendment. But there’s a decent chance it would be a very different republic.

Foundational Amendments

22. The 5th  Amendment – Right to jury indictment; due process; no double jeopardy; no self-incrimination; no government takings of property.

23. The 6th Amendment – Right to a speedy public trial by jury in criminal cases; right to legal counsel.

These can be grouped together in my mind. Highly important defendants’ rights. I place the 6th amendment as higher priority than the 5th, because of the way the two amendments work in concert. Absent the right to a speedy public trial by jury, the 5th amendment ceases to protect you in a meaningful way. But (I think) the opposite is not quite as true: even without protections against double jeopardy and self-incrimination, a requirement of a speedy public trial by jury assisted by counsel should still afford the defendant a decent situation.

Essential Elements of a Modern Liberal Democratic Society

24. The 4th Amendment – Prohibition on unreasonable search and seizure. I’ve written a blog post on my recent personal experience with this amendment, and another on the Patriot Act. There’s a non-crazy argument, in my mind, that you’d want to get rid of the 1st amendment before this; the norms of the 1st amendment are probably more embedded in society than the norms of the 4th amendment. But in any case, this has to be at least second-to-last. The natural impulse of state power in a democracy is to chip away at this right. Ditching it would open the floodgates to a less free society. And while it’s true that most states have the equivalent amendment in their constitutions, the federal government is of a main concern here, which (I think) is less so in the case of the 5th and 6th amendments.

25. The 1st Amendment – Freedom of speech, press, and religion. Again, I’m not 100% sure this is more important than the 4th amendment on a day-to-day basis in contemporary America. But it’s definitely more important in theory, since it affects the policy outputs of the democratic process so much more directly. It’s true that the basic norms of the amendment are well ingrained in the United States. But it’s also true that the limits of the boundaries on these norms are constantly tested by both state and, to a lesser degree, federal law. So I think it has to be the foundation of any constitution, and therefore it’s the last amendment I’d dump.

Feel free to bicker with me in the comments.

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On figuring out what’s important

Yesterday, Jonathan Bernstein posed a good question:

If my twitter feed is any indication, everyone is still focused on the Joint Select (Super) Committee, which is still unlikely to do anything, which will in turn trigger something that won’t happen for another year, except by then it won’t happen.

Meanwhile, as far as I can tell the real budget news continues to be the likely shutdown showdown over FY 2012 appropriations, coming later this month…

…I’m entirely baffled by the whole thing; it just seems to me that the press has this entirely backwards … As far as I can tell, the JSC just isn’t a very big deal, while the other track — FY2012 appropriations — is a real and serious battle. That’s what I’ve been saying, and I think Stan Collender has been mostly saying the same thing, but everyone else seems to be fixated on the wrong thing. Anyone have a good explanation?

Let me take a crack at this. Five general points:

1. The Joint Committee is potentially a huge deal. First, I should say that I’m with Bernstein in thinking that the JSC, as structured and incentivized, is highly unlikely to lead to much in the way of substantial legislation. As such, I think the action on the FY12 appropriations will probably be more consequential. But the theoretical significance of the JSC process is massive; its capacity for change (again, in theory) is far greater than the likely path of the annual appropriations process. And that means that even if the probability of the JSC process producing anything is tiny, the ramifications of that small chance might make it worth focusing on. Put it this way: if there’s a 2% chance that the JSC process produces (1) major alterations to entitlement spending; (2) sweeping tax reform; and (3) huge cuts to defense spending, then that 49-to-1 bet might be more worth focusing on than an annual appropriations process that is 3-to-1 to crash into a shutdown. And it will be imperatively more worth focusing on if you are singularly concerned about a policy potentially in the JSC crosshairs (i.e. AARP re: Medicare).

2. Even if the JSC process fails, how it fails is of potentially huge political significance. Even if the JSC process does nothing as a matter of policy, it’s going to have a political effect, and a potentially large one. Therefore, political actors have a large incentive to attempt to manage that failure and maximize the benefits (or minimize the damage) from it. Bernstein seems to think it’s unlikely the committee will do anything. I think that’s possible, maybe even likely, but I think it’s also plausible that the failure will come on the chamber floors. If the JSC is to a large degree just a proxy for the four-corners  leadership, and those leaders think either that a deal is actually possible or they all think that they can win the politics of floor failure, then you might see something crash at a later stage. That would be intensely politically consequential. But no matter where this fails, it will need to be managed. Lack of output does not equal lack of winners and losers. And the groundwork for not losing  is making sure that the JSC was a high-focus, high-priority item for each party, lest they be open to the charge of never giving it a chance.

3. Many political actors have incentives to be optimistic about JSC, but not Approps. This follows somewhat from the last point. The BCA was created by Congress to solve a problem; they probably need to believe it can work, or at least not completely crash. There are at least some negative political ramifications if its fails, at least for one party or the other, and maybe for both. Even if they don’t actually believe it can work, the JSC-process is probably a huge lobbying and fundraising winner, so there are reasons to keep up appearances. As Bernstein notes, however, a failure by the JSC process isn’t particularly substantively damning in the short run; it will potentially create political winners and losers, but mostly will set sail a new politics of sequester-avoidance. The clock is ticking, but it’s a long clock.

Appropriations, on the other hand, is structured exactly the opposite: there’s a short clock with concrete ramifications waiting just around the corner, built into a process that neither side specifically created and, in fact, most agree is at least half-broken. This encourages a focus on the doom-and-gloom, for two reasons: first, all the bargaining leverage is in convincing the other side that a shutdown will hurt them more, and hurt them immediately. Second, the external gains from lobbying/fundraising/etc are, unlike the JSC situation, drawn from pretending that the process will fail. So, in the end, you have a world where the political actors overstate the probability of JSC success and understate the possibility of appropriations success.

4. A shutdown might look relatively benign these days, and less likely. Relatively-speaking, that is. After battling out the debt limit earlier this year, and standing in the face of fiscal collapse in Europe, the prospect of the funding gap for a few days in the federal government probably doesn’t seem nearly as high-stakes as it did in, say, 1995. I don’t think that’s true at all; a shutdown is pretty catastrophic. But I can see why it looks more and more like small beer to a lot of people. Plus, the appropriations process is not completely stalled right now. It’s actually moving in the Senate. In and of itself, that doesn’t make it any more likely to not trigger a shutdown. But it helps frame the viewpoint of observers that are used to very few bills moving through the Senate.

5. There are institutional media factors driving JSC-process coverage. The JSC is both easy to cover, and sexy to cover. It’s new, it’s different, and it’s promising a lot. The appropriations process, on the other hand, is complex to cover, old, and anything but sexy. Even if it succeeds, it doesn’t do anything that will light the newsstands on fire. That can’t possibly compete with something dubbed the “supercommitte.”

So where does this leave me in regard to Bernstein’s question — why are people fixated on the supercommitee?

Well, I think the answer is a mix of two things: first, the JSC-process is probably somewhat more  important than he suggests, especially in that it’s failure will be important politics. This is, of course, something a self-fulfilling prophecy; the extended media coverage has helped create the public illusion of greater probable success, which in turn will intensify the politics of failure. Conversely, I think the appropriations process is somewhat less important, mostly because I rate the probability of shutdown somewhat lower than Jonathan. And that’s in part because of the existence of the JSC; it strikes me that a shutdown now would have cross-contamination politically. The loser of the shutdown might very well be blamed for the failure of the JSC. And that raises the brinksmanship, which in turn I think increases the possibility someone caves. So that’s a substantive reason.

Second, I think a lot of observers are largely ignorant of the true probabilities and true consequences of success and failure in both cases. At the voter/observer level, people want to believe in big solutions to big problems and the basic ability of democratic governance to, if not solve all problems, at least avoid all disasters. I know I have to fight that urge constantly.  At the political actor level, there are a myriad of incentives for either a genuine or strategic optimism that feeds this public belief, and in any case there are self-interested incentives to prioritize and promote the special device developed to solve the big problem. I’m not a big fan of traditional arguments about press incentives, but they certainly exist too. Besides all the ones mentioned above, the press can’t ignore, day after day, everything the political actors say. And the political actors are certainly rating the JSC chances much better than Bernstein, Stan, or I do.

So, I guess I’m less baffled about the press/observer focus than Jonathan, but that doesn’t make me any less worried. I still don’t see a lot of hope for the JSC process. The whole thing reminds me of how Potter described Buchanan’s plan to solve the secession crisis in his final annual address in December 1860 — that in proposing a constitutional amendment, he had raised the stakes and elevated the process, but had done nothing to change the underlying dynamics of the situation.

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Nerd(s)

We took Anna (3.5 years old, Minnie Mouse) and Abby (1.5, Bumble Bee) trick-or-treating last night with a rather large group of their neighborhood friends. After we arrived home, we let them each have one piece of self-selected candy (Tootsie Roll Pop for each), and then we put them to bed and got down to the fun stuff: statistical analysis of the haul!

The loot analysis is limited to Anna’s trick-or-treating, since Abigail’s haul has a selection bias due to skipping some houses that had steep steps and/or scary decorations.

Logistical Efficiency

Total homes approached: 51

Total time trick or treating: 70 minutes

Approaches/Hour: 51/70*60 = 43.7

Comments: We live in a townhouse neighborhood, so even with a dozen pre-schoolers and toddlers in our posse, we are able to cover a lot of ground quickly. In addition, our neighborhood uses a pretty standard system of porch lights and glowing pumpkins to indicate whether the door will be answered, so some strategic skipping (after cursory checks for stoop jars of candy) was employed by the older children, with the younger ones following along. We lost some time due to mildly-enforced rules that all children say “thank you.”

Binary Success Rate

Subtotal, doors answered: 29

Subtotal, candy jars on steps: 6

Total, homes delivering candy: 35

Success rate: 35/51 = 68.6%

Comments: Given the housing stock, demographically our neighborhood has a disproportionate number of young families and couples-soon-to-be-families. This depresses the success rate because (a) many of the young families do not leave someone home to hand out candy; and (b) many of the young couples without kids are out attending adult Halloween parties. The jars-on-steps are probably higher than other neighborhoods, because we get virtually no unaccompanied older children who are likely candidates to completely clean you out in one approach.

Loot Gathering Efficiency

Total pieces of candy: 80

Yield/Approach: 80/51 = 1.6 pieces/approach

Yield/Delivery: 80/35 = 2.3 pieces/delivery

Pieces/Hour: 80/70*60 = 68.6

Comments: Yield and rate figures are sub-optimal because we reminded Anna to only take one piece from jars on steps, and attempted to limit multi-piece grabs from bowls, even when offered by distributors. There was some visible shirking of these rules. Counts were made post-bedtime, and reflect one authorized consumption and no observed illegal consumptions.

Descriptive Loot Analysis

Complete list of all pieces of candy (all “fun” size where applicable, unless otherwise noted): seven Kit-Kat, four Skittles, six Laffy Taffy, two pixie stix, one Hot Tamales, four full-size single Reese’s Peanut Butter Cups, one miniature Reese’s Peanut Butter Cup, one Three Musketeers, one Dots, two sour patch kids bags, one apple head, seven Bottle Caps, one sour punch twist, one Scooby Doo fruit snacks pouch, two sweet tarts, four boxes of Nerds, two Smarties, three Tootsie Roll Pops, one Dum Dum Pop, one bag of Gobstoppers, one bag of pretzels, two bags of Peanut M&Ms,  three Twix, three Krackel, two Almond Joy, eight Starburst, one Butterfinger, two Hershey bars, two Cowtails, Two Snickers, and two Crunch bars.

Standard metric of candy value:

10: Reese’s Peanut Butter Cup

9: miniature Reese’ Peanut Butter Cup

8: Excellent chocolate bars (Twix, Kit Kat, Crunch Bar, Krackel, Butterfinger, etc.)

7: Good chocolate bars plus M&Ms (Snickers, 3 Musketeers, Hershey bar, M&Ms, Almond Joy, etc.)

6: Pops and chocolate sweets (Tootsie Rolls, Tootsie Roll Pops, Dum Dum Pop)

5: taffy-life creations plus Skittles (Laffy Taffy, Starburst, Skittles, etc.)

4: All other Wonka-style candy (Nerds, Bottlecaps, Gobstoppers, sweet tarts, smarties, Pixie Stix etc.)

3: psuedo-candy and sour candy (fruit snacks, sour patch kids, etc.)

2: non-candy (pretzels, apples, etc.)

1: trade-value-to-suckers only (Dots, Cowtails, Hot Tamales, apple heads, etc.)

0: non-food items; items that must be chucked for unsafe packaging.

Bonuses: +25 for each full-size candy bar.

Comments: The standard metric is not debateble, except for whether a Hershey’s Kiss comes in unsafe packaging. If not, it’s a 6.

Statistical Loot Analysis

Total Haul Value: 445

Mean Piece Value: 5.56

Standard Deviation: 2.24

Median Piece Value: 5

Number of non-food or unsafe items: 0

Number of full-size candy bars: 0

Comments: I thought this was a pretty mediocre haul. Way, way too much Wonka crap, and it’s not like we’re talking about Wacky Wafers or Runts here, just your pedestrian sweet tarts and  Nerds. The high-end was also very unrepresented. Four regular peanut-butter cups? Yikes. No full-size bars? That’s unlucky. I’m still in search of a repeat of the holy grail of successful deliveries: October 31, 1989, last house on Primrose Drive, Loudonville NY, which featured full-size Crunch Bars and two-pack Reese’s Peanut Butter Cups in a candy jar on the steps!

Outlook for Anna and Abby

Pieces allowed per day: 1

Theoretical last day of Halloween candy: January 17th, 2012.

Estimated adult pilferage rate: 1 piece/day/adult

Estimated “forgot” rate/week: 3

Estimated illegal consumption by children: 0

Realistic last day: December 2nd, 2011.

Comments: My strong working assumption is that 3 year-olds will neither notice missing candy, nor treat themselves to illegal candy. But we’ll find out.

 

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