There are rational parameters within which discussion may be worthwhile, but they don’t seem to constrain too many otherwise nice folks these days. It was floated that Chief Judge John Roberts, presiding over the impeachment trial in the Senate, could call John Bolton as a witness. The rationale? The Constitution doesn’t say he can’t, and it says he presides, so there.
And some people who want Bolton to testify, which spans a larger group than just those who so desperately want Trump impeached that they’ll believe anything, bought it. Except it’s nonsense talk.
I regret to inform you: This is a delusion, if a pleasant one. The chief justice is not going to arrive on a white steed to save the country from Trump. Indeed, a minimalist approach on Roberts’s part is not only the all-but-certain outcome — it is also the wiser course, better for the court and the country.
More to the point, people will latch onto whatever wild and crazy idea gets released into the wild, no matter how ridiculous and baseless. This is greatly exacerbated by two groups of people, the first having ascribed credibility and the second having attributed credibility. Legal academics and legal pundits. There, in addition, the talking heads with official titles involving the word “former,” as in “former prosecutor,” who validate Rachel Maddow’s smirk, but they come and go so quickly as to be mere shadows.
And we, meaning the groundlings of the law and law-adjacent, spend time and the occasional brain cell trying to make sense of this craziness. But in the scheme of whatabout, few have murdered more brain cells than Ian Millhiser (with Slate’s Mark Joseph Stern* a close second), who wrote for ultra-progressive Thinkprogress before it went under, and was then picked up by the merely uber-progressive Vox.
A few days ago, a student note in Harvard Law Review raised some chuckles as an exercise in wild ideas that the Constitution wouldn’t preclude.
To create a system where every vote counts equally, the Constitution must be amended. To do this, Congress should pass legislation reducing the size of Washington, D.C., to an area encompassing only a few core federal buildings and then admit the rest of the District’s 127 neighborhoods as states. These states — which could be added with a simple congressional majority — would add enough votes in Congress to ratify four amendments: (1) a transfer of the Senate’s power to a body that represents citizens equally; (2) an expansion of the House so that all citizens are represented in equal-sized districts; (3) a replacement of the Electoral College with a popular vote; and (4) a modification of the Constitution’s amendment process that would ensure future amendments are ratified by states representing most Americans.
It is, to be sure, an interesting law school level exercise, and putting the ideological issues of the person who wrote it aside, it reflects some decent effort in finding ways to accomplish outcomes that would seem technically difficult, even if they weren’t politically impossible. The Great State of Georgetown? The Commonwealth of G Street, NE? It’s impressive work for a law student, as off-the-wall as it may be.
Yet, Ian Millhiser didn’t find it cute enough for a chuckle, but worthy of a post at Vox.
American democracy is broken.
We have a president who lost the popular vote, a Senate where the “majority” represents about 15 million fewer people than the “minority,” and a Supreme Court where two justices were nominated by that president and confirmed by that unrepresentative Senate.
An unsigned note, entitled “Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation” and published in the Harvard Law Review, offers an entirely constitutional way out of this dilemma: Add new states — a lot of new states — then use this bloc of states to rewrite the Constitution so that the United States has an election system “where every vote counts equally.”
Ian hasn’t gotten over the fact that Trump won the presidency, which proves the system has failed because otherwise Ian would be either Attorney General or on the Supreme Court sitting next to Merrick Garland. It’s not that Ian actually thinks this idea is doable. Not even Ian is that delusional.
So let’s be frank. The Harvard note’s proposal is ridiculous, but it is no more ridiculous than a system where the nearly 40 million people in California have no more Senate representation than the 578,759 people in Wyoming. As the Harvard note says of its own pitch, “radical as this proposal may sound, it is no more radical than a nominally democratic system of government that gives citizens widely disproportionate voting power depending on where they live.”
But the fact that this is proffered, given air at all, as a far-out idea of how to fix a broken democracy, is where the crazy trains crashed into one another. We’re indulging in delusion upon delusion, begging the question of whether democracy is broken because one side didn’t get its way, the fault for which is Russia, Comey, Hillary’s gender, everything but the possibility that Americans don’t want their nation to be reinvented into a socialist and social justice Utopia.
This is where young smart voices would have responded, “OK Boomer” if the meme’s 8 second lifespan hadn’t elapsed. Why don’t we open our minds to change, to a kinder, gentler future? Why are we stuck doing things the way they’ve always been done, rather than re-center the world around their intersectional ideology?
As fun as it may be to ridicule crazy ideas, even that wears thin after a while. As Ruth Marcus said about C.J. Roberts, “this is a delusion, if a pleasant one.” Whether you find it pleasant or not, debating delusions isn’t a very good use of time and energy. Yet, this is where we are these days, mired in delusions. It’s time to get off the crazy train. If you want to continue to ride, then you can take a seat next to Ian.
*I learned the other day that Stern blocked me on twitter. I have no clue when this happened or why, as I rarely have cause to see something he twitted. But apparently, he either can’t bear to see my twits or can’t bear to have me see his. Either way, a curious thing for a legal pundit to block a lawyer. Maybe it was something I said?