What Is To Be Done? part deux
“The First Vote” (Harper’s Weekly, November 16, 1867, image credit: Library of Congress)
Well, reading over last week’s screed, I realized there were a bunch of things I neglected to mention or follow up on. So the meditation on a post-revolutionary America will get a little longer treatment while I continue to read Osita Nwanevu’s The Right of the People ahead of a planned review.
The first thing that occurred to me was that we are going to need a more extended discussion of the right to vote. In the image at the top of this essay, we see a brief moment I mentioned this last week in a proposed rewrite of Article II section 1 of the US Constitution, where I said we should add that “no citizen of the US, having attained the age of majority, may be denied the right to vote” for president and vice-president. Actually, we need to extend that to all offices at whatever level to and further restructure the political process to ensure that political power in this country is actually wielded by the people and not by a limited professional political/managerial class. I have several recommendations in that regard:
First, our political institutions need to be open to everyone. This means national initiative and referendum; right now, many states have provisions for direct democracy in their constitutions, often misused by reactionaries but still holding the promise of giving the people a voice in their government. This system needs to be made universal, with restrictions to prevent the political process from being hijacked by moneyed interests. In Oregon, we have initiatives all the time, for a while we were having a dozen or more every election. Well-financed political operations would hire paid petitioners to go collect signatures in public places, and it used to be that people would sign pretty much anything. Laws and changes in people’s willingness to put their names on petitions for strange ideas in recent years have limited the ability of special interest groups to put crazy stuff on the ballot but we still get some odd proposals from time to time. I’m happy to report that most of them get voted down; democracy can be a little messy but the wisdom of crowds is a real thing.
Another thing, the current system of voter registration, with the right of candidates to challenge voters is profoundly undemocratic – it treats voting as a privilege that you have to apply for rather than a natural right of citizenship. One thing that we need in this country, that also would resolve a lot of concerns that people have about illegal immigration, is a national ID card, something that plenty of countries with impeccable democratic credentials have. It would of course be free and issued to every person automatically as soon as they were born or naturalized or entered as a legal immigrant, and would designate their status, official residence, and authorization to vote/work/study/etc. You shouldn’t be required to do anything extra to qualify to vote and nobody would have the right to question your status at the polls. Voting authorities would have everyone’s identity already in their system and the mechanisms set up to ensure that the person presenting their ballot is actually the person on the current registration rolls appear to work just fine; an extended registration roll of all citizens living in the district wouldn’t be any different. I’d personally go beyond this and say that voting is a responsibility of citizenship, and if you don’t live up to your responsibility then you should pay some sort of a penalty. In Australia, if a citizen doesn’t vote in a national election without some sort of excuse they get charged a fee: $50 for the first offense and $75 for subsequent violations. The government can escalate if a citizen doesn’t pay, taking away their driver’s license according to the Western Australia website, but generally we’re talking about a minor bit of conscription. I’d add some sort of a bonus for voting beyond a sticker; maybe a tax credit for the $50. But at a minimum, we must recognize that every American citizen has the right to vote. The whole business with felon disenfranchisement in the South is a legacy of Jim Crow – one of the ways that the White supremacists in the South overcame the votes of those guys we see in the first image was by passing laws in the 1880s and thereafter that “felons” couldn’t vote, even after they completed their sentences, and then making sure that as many Black people as they could got defined as “felons”. Well, someone who has committed a crime is still an American and in fact probably has a very good idea of how government policies hurt people sometimes. And, of course, as I pointed out last week, the criminal justice system is as stacked against poor people as the political system is, so there is not a strong correlation between being a “felon” and having actually done something that harmed someone.
Moreover, voting should be easy, especially if we’re going to make it required. Election Day should be a holiday, particularly if in-person voting is the rule as it is in most states in the US. There need to be other days available to vote, since some people will still have to work on Election Day even if it is a holiday. I live in one of the states that has mail-in voting. I was opposed to this idea when it was first proposed, voted against it when it came up as a referendum, but I have since changed my opinion from seeing it in practice. We have a very high turnout rate in Oregon, one of the highest in the country, and we are also very highly rated for election security. I have a relative who works in the county elections office and he has given me clear personal experience evidence of how carefully Oregon protects the security of the vote. In my opinion, opposition to vote by mail is driven by opposition to the idea that as many people as possible should participate in elections; Republican candidates have said as much and this is what is behind President Trump’s efforts to end the practice, but in fact vote by mail has no effect on partisan outcomes of elections according to a pretty careful study in Science magazine. If we aren’t going to have national vote by mail at a minimum we shouldn’t be limiting it in those states that like it.
Voting also needs to be meaningful. Gerrymandering has been reduced to a science these days. I mentioned Callais v. Landry, the upcoming SCOTUS case where the Supremes look like they are going to overrule the 15th Amendment. This is a redistricting case; the state created a set of district maps that had a dual purpose: they wanted to protect the districts of two key members of the House of Representatives and at the same time give Black Louisianans the opportunity to elect two representatives of their choice (out of six) in view of the fact that they constitute about 1/3 of the population of the state. Black and White Louisianans are very polarized by partisan affiliation, as Whites vote overwhelmingly for Republicans and Blacks for Democrats. This is, of course, a legacy of Republican opposition to the Civil Rights measures of the 1960-1970s and the southern strategy of the Republican standard-bearers of that era, especially Richard Nixon and Ronald Reagan. If we had six districts in Louisiana with proportional numbers of Black and White voters, there would be six White Republicans in Congress from Louisiana and Black Democrats would have no representation in Washington. The Voting Rights Act of 1965, the one that Martin Luther King and Congressman John Lewis got beaten up for and James Chaney, Andrew Goodman, and Michael Schwerner were murdered for, is about to be ruled an unconstitutional form of racial discrimination. I proposed increasing the number of representatives by ratifying the proposed 12th Amendment from the Bill of Rights; with the addition of multi-member districts with election by proportional representation you could have districts drawn without regard to racial lines and still allow people to have representatives of their choice. There is an argument for single member districts, though, (they potentially limit the ability of real extremists to get elected, though somehow the right wing in America has managed it anyway) and some states may want to keep them, so we will still have to be careful of gerrymandering. This is a huge issue right now as the Republicans, in Texas over the last couple of weeks and now in Missouri, are moving to protect their narrow House majority in 2026 by redistricting in an even more gerrymandered way. California has threatened to respond with its own Democratic gerrymander. However, they will have to get this by the California citizenry since that state, along with many others with Democratic majorities, outlawed gerrymandering in their constitution a few years ago. This was, in retrospect, an act of unilateral disarmament. We need national laws against partisan gerrymandering that require truly impartial district lines drawn according to some approved set of principles. \
DC license plate (image credit: DC Department of Motor Vehicles)
I mentioned an important democratic principle last time that I’d like to reiterate. No area under the jurisdiction of the United States should be deprived of congressional representation and the right to elect national officials. This is really an application of the 14th Amendment’s Privileges and Immunities clause; a central privilege of American citizenship is the right to elect federal officials, the Supremes even (sort of) recognized this in the case where they otherwise made the Privileges and Immunities clause a dead letter, the Slaughterhouse Cases. If you live in DC, you pay federal taxes but your elected representatives to Congress don’t get to vote on those taxes (or anything else). If you live in Puerto Rico, Guam, the Northern Marianas, Samoa, or the USVI, you generally pay no federal tax but also are subject to US laws and have no say in the making of those laws. This is entirely undemocratic, and we fought a big war about this very question in 1775-1783.
I talked about the powers of the presidency last time, and the need to reiterate that the president doesn’t have many independent powers. He is the chief executive, by which the framers of the Constitution meant that he is in charge of executing the laws, not making them. He can only execute laws that Congress makes, with his participation in that process being signing or vetoing them. Of course, Congress can’t resolve every detail or determine how every situation will be handled. That’s what executive orders are for; not for changing, ignoring, or expanding laws at the president’s whim. I tell the story to my students of how, as a United States Consul in Togo, I determined how the 1965 Immigration and Naturalization Act (as amended) was to be applied in the cases of individuals living in that country who wanted to travel to the United States. I had a set of big fat 3-ring binders, I think about 8, on the shelf next to my desk, called the Foreign Affairs Manual (actually the 9th chapter thereof, called 9FAM). The first third or so of the first binder was the law itself, a pretty detailed description of how Congress intended that the US immigration system was going to function after they abolished the racist National Origins Act of 1924. The rest of the eight volumes were State Department regulations, issued by the Secretary of State (actually, the Office of Consular Affairs and Legal Counsel but acting under the authority of the Secretary, who in turn was exercising authority delegated to them by the president) telling us how to apply those rules. Every now and then, with the diplomatic pouch, we would get a new set of pages from the consular bureau in Washington, which we would duly insert into the binders. We never got anything from Congress as far as I remember. So the laws that I applied to those folks who wanted visas were mostly written by the executive branch. But they couldn’t, for example, tell me that I had to refuse visas to Muslims – as the Trump administration tried back in the salad days of 2017. Even the Supremes slapped that down. Current presidential executive orders purport to revoke the 14th Amendment’s birthright citizenship clause, among other unconstitutional provisions. Rescinding federal funds approved by Congress in an appropriations bill by executive order, which the administration has done repeatedly, violates a federal law (the Anti-Impoundment Act of 1974) and the specific law that Congress passed and a president signed that appropriated those funds. People have gone to court, but the courts act slowly and show partisan bias. Justice Jackson, in a recent dissent from a shadow docket decision permitting one of these illegal executive orders to continue in effect while the case works its way up the appeals chain, accused the court majority of playing Calvinball, but with one additional rule: this administration always wins. There needs to be a more rapid and impartial system for review of ill-advised executive orders, as the Trump administration has demonstrated repeatedly in the last six months. Maybe, after we toss all those useless mouths on the Supreme Court and Circuit courts back into the District court pool, and hopefully add a few hundred more federal judges, we could detail a special panel – again, members selected at random and replaced regularly, with a bunch of clerks – to review all those new pages that come out and preemptively make sure they don’t conflict with or change the meaning of federal laws actually passed by Congress and signed by a president.
“President Andrew Johnson Pardoning Rebels at the White House” (Harper’s Weekly, 14 October 1865, image credit: Wikimedia Commons)
Another presidential power that I mentioned last time but I’d like to expand on further is the granting of pardons. President Andrew Johnson arguably threw away the fruits of victory in the Civil War by pardoning almost all Confederate officials. President Trump ratified the attempted coup of 1/6/2021 by pardoning all the participants, and followed that up by approving a settlement of $5M to the family of the one demonstrator killed by police during an attempt to break into an area where members of Congress were sheltering from a mob baying for their blood. Unlike most of their other powers, the presidential pardon power has no limitations and isn’t reliant on laws passed by Congress. It isn’t clear that Congress could constitutionally pass a law limiting it. We need a constitutional amendment saying that the presidential power of pardon is exercised through a pardon commission or some similar entity (as is the case in many states for their governors’ pardon power) that prevents the president from, as Trump did in 2025 and before the end of his first term in 2021, pardoning officials in his government who may have been his co-conspirators in a criminal attempt to overthrow the government.
One way the presidential pardon power was limited in the BT (Before Trump) days was by a norm, an unwritten rule, that pardons were only handed down after the pardon attorney at the Department of Justice passed on them. DoJ was, although a department in the executive branch of government, functionally quasi-independent of the president. There were laws passed after Watergate that formalized this independence as well as strong political habits that prevented the president from directly interfering in DoJ’s law enforcement or pardon work. Trump has completely thrown that out, and also revoked the independence of other federal agencies with independent governing bodies created by law, like the Federal Reserve Bank system, Public Broadcasting System, Institute of Peace, National Labor Relations Board, and Social Security Commission. There was a long-standing SCOTUS precedent, Humphrey’s Executor, that said that it was legal for Congress to make the boards of federal agencies independent of the president as far as their tenure in office. Before this, back in the Andrew Johnson years, Congress passed a law, the Tenure in Office Act, that said that all federal employees who were appointed by the president with the advice and consent of the Senate could not be fired without Senate approval. SCOTUS suggested that they thought this was unconstitutional in Myers v. United States in 1927, with the exception of multi-member boards as they held in Humphrey’s. However, today’s court is in the process of dismantling that rule and giving Trump unrestricted control over all parts of the federal government, in the name of a “unitary executive” idea that comes from the current wording of Article II section 1. We need to roll this idea back. The phrasing I suggested for an amendment to Article II section 1 would achieve this by giving Congress the right to define the relationship between the president and executive branch officials. This would also ensure that the president wouldn’t have the right to arbitrarily fire lower-level government officials protected by Civil Service or military personnel rules, another thing Trump has been doing willy-nilly in the name of the “unitary executive”. And the first thing I would do with this power is make the Department of Justice an independent agency with the Attorney General appointed by the president, with the advice and consent of the Senate, to a fixed term, unremovable except by presidential order with the consent of the Senate.
Finally, there’s been a lot of talk recently about “soft secession”. A lot of these are the ideas I talked about in my article a couple of weeks ago on political means of resistance. There is now an idea about how the states can manage the financial aspects of resistance, though: through a combination of flooding the zone with unconstitutional state laws that have to be individually challenged by the federal government in court and sabotage of financial systems that transfer money to the feds. New York state government, for example, regulates much of the physical infrastructure underlying financial transfers throughout the country, and the SWIFT interbank mechanism is headquartered there. The governor of the state would have the ability to cut off pretty much anybody’s finances if she was able to summon the moxie. The author of the second Substack article points to the example of Southern states fighting desegregation, as I did. Critically, I think these things will only work in the context of collapsing federal authority, during an ongoing insurgency. But it’s good to be prepared, to have the laws in place, even if you can’t enforce them right away, so that they would serve as a focus of localist loyalties by your citizens and a goal to recruit around.