Monday, October 29, 2018

The Constitutional Time Bomb

The United States Constitution rightfully has a venerated place in the history of democracy. Unfortunately, it also has a structural problem that will make it unworkable -- possibly in the very near future.

The Population Data:

Statista has a projection of U.S. population by state in the year 2040.  I have serious doubts that any projection will be accurate as major weather events (like the one that displaced a huge number of people in Puerto Rico), drought, and other symptoms of climate change will likely cause unpredicted and substantial shifts. However, we go with the data we have, not the data we wish we had.

The data shows that the projected total population of the states of the United States is 381,975,542 (quite specific for a projection, I know). This excludes territories and the District of Columbia (which is projected to have a population greater than the six smallest states).

The eight largest states, California (12.64% of the total U.S. population), Texas (10.65%), Florida (7.39%), New York (5.60%), Pennsylvania (3.40%), Georgia (3.35%), Illinois (3.32%) and North Carolina (3.28%) will together represent approximately half (49.64%) of the total U.S. population.  The smallest 26 states (i.e. a majority of states) will have 18.26% of the total U.S. population.  The smallest 34 states (i.e. a two-thirds majority of states) will have 30.56% of the total U.S. population.  The smallest state by population, Vermont, will represent 0.16% of the total U.S. population.

This is a change -- though not a huge change -- from how it is today.  Current state population statistics show that the largest twelve states, California (10.35%), Texas (7.41%), Florida (5.49%), New York (5.20%), Pennsylvania (3.35%), Illinois (3.35%), Ohio (3.05%), Georgia (2.73%), North Carolina (2.69%), Michigan (2.61%), New Jersey (2.36%), and Virginia (2.22%) represent approximately half (50.81%) of the total US population.  The smallest 26 states (i.e. a majority of states) have 16.26% of the total population.  The smallest 34 states (i.e. a two-thirds majority of the states) have 26.95% of the total population. The smallest state by population, Wyoming, represents 0.15% of the total U.S. population.

The Problem: Senate Version

The United States Senate is comprised of 100 senators, two from each state.  While senators are directly elected pursuant to the 17th Amendment, they are elected at a flat rate of two senators per state, regardless of population.

The Senate was established in Article I, Section 3 of the U.S. Constitution.  No legislation can become law without a majority of the U.S. Senate (or with a tie, broken by 'yes' vote by the Vice President).  The Senate has every power the House has, except the power to impeach and the power to originate spending bills.  However, the Senate also holds a huge amount of power that the House does not, including:

The power to approve or disapprove of treaties by a two-thirds vote;

The power to approve ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States by a simple majority vote; and

The power to remove an impeached President or other officers of the United States from office by a two-thirds vote following an impeachment in the House (without such a vote in the Senate, an impeachment does not cause any removal from office).

The upshot of this, in light of the current and projected population, is bad.  Currently, senators representing only 16.26% of the total population control a majority of the Senate. Put another way, legislation or judges supported by 83% of the U.S. population can be rejected if the senators from the 26 smallest states vote to reject them.  Legislation punishing large states (as the 2017 tax reform bill did by capping the state income tax deduction) can be passed by senators representing less than 17% of the U.S. population.  Impeachment trials, treaties, and veto overrides can be passed by senators representing less than 27% of the U.S. population.

Oddly, this gets slightly better with the projected 2040 numbers, when the smallest 26 states will represent a total of less than 19% of the total U.S. population yet control a majority in the Senate.  By 2040, treaties, impeachment trials, and veto override requiring two-thirds of the Senate will be controlled by senators representing less than 31% of the U.S. population.

Looking from the perspective of the biggest states, however, things get much worse over time.  Currently, the 50% of the U.S. population living in the biggest states get a small 22% of the voting power in the Senate.  However, by 2040, the 50% of the U.S. population living in the biggest states will get only 16% of the voting power in the Senate.  While 22% and 16% seem to both be quite small, the drop to 16% represents a loss of more than a quarter of the power held by the half of the population living in the largest states.

When legislation and judges supported by 83% of the population now (or 81% of the population in 2040) can be blocked by senators representing only 17% of the population now (or 19% of the population in 2040), you no longer have a functioning democracy.  When half of the population gets only 22% of the voting power now (and only 16% of the voting power in 2040), you no longer have a functioning democracy.

Revolutions have happened over such badly skewed representation, and if the trends continue, the risk of revolution in the U.S. -- particularly given the ease by which military grade weapons can be obtained -- is unacceptably high.

The Problem: Electoral College Version

The President of the United States is not elected by popular vote. Instead, the electoral college (the one created by the 12th Amendment to replace the version in the Constitution -- adopted instead of a national popular vote at least in part to preserve slavery) provides that (with the exception of Washington D.C., which gets the same number of electors as the smallest state by population, per the 23rd Amendment) each state gets one vote for every member of Congress, and of course no state is permitted to have less than one member of the House.  That means that the minimum number of electoral votes each state gets is 3 -- or that 153 electoral votes (3 per state and 3 for D.C.) are assigned without regard to population.  Since the electoral college has a total of 538 votes, this means that 28.4% of electoral votes are distributed without regard to population, and the remaining 71.6% are distributed based on population.

As the largest states grow larger and the smaller states represent a smaller percentage of the population, two competing risks grow.  The first risk is that a small number of states can control the entire electoral college.  Imagine, for example, an interstate compact between the twelve largest states: Virginia, New Jersey, North Carolina, Georgia, Michigan, Ohio, Illinois, Pennsylvania, Florida, New York, Texas, and California, which together represent 270 electoral votes.  The compact states simply: "The winner of the majority vote aggregated among the twelve parties to this compact shall be given all of the electors in every state that is a party to this compact."

Boom.  Now only twelve states are relevant to the presidential election.  No matter what happens in the other thirty-eight states, the winner of the popular vote in twelve states becomes President.  That is a very undemocratic outcome.  I long harbored doubts about whether such a compact would work, as the Constitution gives state legislatures more or less plenary powers to determine how electors are chosen, and there is no reason to believe that a state unhappy with the outcome would not withdraw from the compact between the day the popular vote is held and the day the electoral vote is held.  Nonetheless, a compact in this form poses a rather serious risk to democracy.

The second risk requires no interstate compact and will come to pass unless the Constitution is amended.  In fact, the risk has already been realized -- although Republicans have held the White House for three of the five Presidential terms in this century, they won the popular vote only once in this century.  It may already be the new normal that the winner of the popular vote loses the election most of the time -- but if it is not the new normal, it soon may be.

Currently, there are seven states with only three electoral votes -- Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont, and Wyoming.  Those seven states represent 1.46% of the current U.S. population, but hold 3.9% of the electoral college voting power.  If we include states with five or fewer electoral votes, we find fifteen states representing 4.8% of the population but 8.4% of the electoral college voting power.  The difference between 4.8% of the population and 8.4% of the electoral college voting power means that voters in the fifteen smallest states get an extra 19 electoral votes not supported by their population size.  This does not sound like a lot of voting power, but consider that many elections come down to just a few electoral votes.  Both of George W. Bush's elections were closer than 19 electoral votes.  When you consider that this inequality between population and electoral vote power can influence far more than 19 electoral votes (picking 3 or 5 electoral votes as my cutoff was arbitrary, after all), the risk that the popular vote winner will not become President is big -- and becoming bigger.

The Problem: Candidate Version

With the exception of Donald Trump and Dwight Eisenhower, modern Presidents have been drawn from the ranks of governors and senators. However, if half of the population -- and therefore half of the potential Presidents -- live in only eight states, there are only 24 people among half of the U.S. population who meet the traditional resume requirement for President. By contrast, there would be 126 people among the other half of the U.S. population who meet that requirement.  Of course, we can count former senators and governors, but the ratio remains just as dismal.

Because the traditional pathway to the Presidency is now closed for many people in the populous states, we should expect an ever-increasing number of people to run for President with little or no political experience.  This, too, should be a source of concern.  Because of the combination of the high cost of running for office and the paucity of opportunities for people in large states to become senators or governor, we can expect a large number of wealthy people to run.  For the lawyers reading this, don't put away your briefs about the Emoluments Clause just yet.

The Time Bomb:

The world will not end (I sure hope) in 2040, and the demographics will continue to shift.  As global climate change makes much of the Southwest United States an infertile drought zone, and much of the Southeast United States an uninhabitable hot zone, the number of states with tiny populations will grow as the number of states with huge populations will change.  At some point, it will become untenable for a state with a few thousand people to hold the same voting power in the Senate as a state with tens of millions of people (or more).

Solutions will be hard to come by, however: A constitutional amendment requires ratification by three-fourths of the states.

Saturday, March 24, 2018

Proposed Legislation for California on Guns

** Edit **

The concept here is to draw from the text of the second amendment and from an abortion-reduction strategy adopted by numerous legislatures.

Starting with what we learned from the abortion debate, a supermajority of states require some kind of counseling prior to an abortion procedure.  Similarly, a majority of states require people seeking an abortion to obtain counseling and read written materials about the impact of abortion.  See

A similar strategy makes sense in the context of guns. Few gun owners have actually seen what the weapon they fire does to a human adult, much less a human child.  This leads to inaccurately gauging the need for proper training (to avoid hitting bystanders), the need for proper gun storage, and the risk of having the gun taken from the owner during a confrontation.

I propose requiring prospective gun and ammunition acquirers to view the damage that munition can do.

Because an analogous requirement is at the heart of the “red state” approach to limiting abortion, having such a requirement in the context of gun sales would force a choice:  Do conservatives advocate that a requirement that materials be reviewed prior to the exercise of a constitutional right is unconstitutional?  If so, they would functionally choose gun rights over limiting access to abortion.

The second element is embracing the portion of the second amendment that states “A well regulated Militia, being necessary to the security of a free State…”.  The second amendment is the only part of the Bill of Rights that specifically contemplates regulation in the text.

The approach I propose automatically enrolls gun owners in a state militia.  The state militia is “well regulated”, meaning there is a chain of command (starting with the Governor), regular training requirements, and the ability to be called up should the need arise.

A superficial legal analysis will quickly conclude that such a requirement runs contrary to the precedent set in the Heller case (  However, Heller involves the federal government (actually the government of the District of Columbia, but that government is part of the federal government per Article 1, Section 8.17 of the Constitution) and overlooks a crucial piece of history.  What few non-lawyers know is that the rights set out in the federal constitution did not apply to the states until several decades after passage of the Fourteenth Amendment.  In the Railroad Cases (, the Supreme Court held in 1897 that the takings clause applied to the states.  In the 1925 Gitlow v. New York case, the Supreme Court held that ( “we may and do assume that freedom of speech and of the press which are protected by the First Amendment from abridgment by Congress are among the fundamental personal rights and "liberties" protected by the due process clause of the Fourteenth Amendment from impairment by the States.”

Gitlow was an early “incorporation” case, and after that case and others, the Supreme Court eventually held that the fourteenth amendment “incorporates” the bill of rights and other constitutional rights and applies them to the states.  Before Gitlow, states had great latitude to ban guns, restrict speech, and generally do things that modern Americans would view as repugnant to a free and open society.  The remedy would be to move to a state where those rights are protected by the state constitution.  The slip opinion in the Heller case itself discusses this history on page 53 (

Because Heller addressed a gun control statute passed by an entity that is technically part of the federal government, Heller never addresses how the Fourteenth Amendment would interact with the Second Amendment (and even if it did address that issue, it would be “dicta” as the issue was not properly before the Court).

Heller goes through incredible legal gymnastics to find that the Second Amendment creates an individual right to own a gun -- a view that Nixon’s Chief Justice, Warren Burger, describes as a fraud:

The Gun Lobby’s interpretation of the Second Amendment is one of the greatest pieces of fraud, I repeat the word fraud, on the American People by special interest groups that I have ever seen in my lifetime. The real purpose of the Second Amendment was to ensure that state armies – the militia – would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.

Fraudulent or not, Heller is the current interpretation of how the Second Amendment applies to the federal government.  While Heller does not directly address the applicability of the Second Amendment to states via the Fourteenth Amendment, the writing is on the wall:  This court is going to find that the Fourteenth Amendment incorporates an individual right to bear arms.

What I propose below, however, poses a novel constitutional question:  The Second Amendment contemplates a state militia.  As such, is it within the sovereign rights of a state to tie the exercise of the right to bear arms with service to the state as part of a state militia?  Put another way, can a state allow people to bear arms while simultaneously requiring them to make themselves available in the event of an invasion or other emergency?  I believe the answer to that question is “yes”.

This issue poses a second novel constitutional question:  How is the Second Amendment modified by the Fourteenth Amendment?  The Second Amendment arguably creates a right for states as well as for individuals.  Implied in the language of the amendment itself is that concept that the right granted is necessary because of the right of states to form Militias.  Surely the Fourteenth Amendment did not strip that right from the states.  Rather, the right of the state to form a militia is inexorably connected with the right to bear arms, and an extension of the right to bear arms to state regulations does nothing to abrogate the right of a state to create a militia.

The Heller Court held that the phrase “A well regulated Militia, being necessary to the security of a free state” was mere preface, intended to help provide context for the interpretation of the following phrase stating “the right of the people to keep and bear arms shall not be infringed.”  Applying the Heller “preface as interpretation aid” standard, we can understand the right to bear arms as not being infringed by requiring that they be used -- in addition to use for home defense -- as part of a well regulated militia.  

There is a simplistic argument that conditioning the right to bear arms on service in a state militia somehow violates the Thirteenth Amendment's prohibition on slavery.  However, this assumes that the Second Amendment does not expressly contemplate the right to bear arms as crucial to the ability of a state to exercise a militia.  The two cannot be divorced.  Indeed, a refusal to serve the state in a crisis is a strong indicator that the person refusing is likely to use the weapon improperly.  Even if mandatory service by gun owners in a militia is somehow found to violate the Thirteenth Amendment, there is every reason to believe that training to service in a militia, combined with a choice at the time of a call-up as to whether to serve, would eliminate the problem.  Gun training is a well-accepted prerequisite for a concealed carry permit, and this simply extends such training.

The Supreme Court has become a political arm of the government.  With the exception of Justice Kennedy, the party of the President who appoints a justice is nearly dispositive of that justice’s vote on key issues.  While I fear that this Supreme Court would vote -- 5 to 4 -- that patriotic service to the state is an undue burden on the right to bear arms, such a vote would expose the naked political nature of the Supreme Court.  

It is certainly a legitimate argument -- “the first phrase matters and it specifically contemplates that the right to bear arms is created in order to assure the availability of a well regulated militia.”  Some state will have to have the guts to test it.  What better state than California, where the ravages of climate change, the disasters of earthquakes, being within range of North Korean missiles, and other events will surely require the use of a force far larger than the state currently has at its disposal.

With these arguments in mind, I propose the following:

** End Edit **
The text of the Second Amendment:  “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”.

As the Second Amendment contemplates the right of the people to keep and bear Arms within the framework of a well regulated militia, California should consider adopting legislation that establishes such a militia and ties it to weapons ownership.

Such a militia would be a powerful force for good, enabling the government to deploy a force approximately 7 million strong to do everything from protecting against invasion to assisting in natural disaster relief.

Section 1: Findings:  

The People of the State of California find and declare as follows:

1.01 The establishment of a well regulated Militia is necessary to the security of the freedom of California and its citizens.
1.02 More than 20 percent of California residents own a firearm, meaning that well over 7 million California residents own a firearm.
1.03 Draught, global climate change, civil unrest, food insecurity, crime, potential nuclear attack by North Korea or others, and other dangers create a need for a Militia to protect the security of the free State of California and its residents.
1.04 Establishment of a California Well Regulated Militia (“California Militia”) will guarantee the availability of an armed, well trained and well regulated force that may be called up in the event of threats to the security of the free State of California and its residents.

Section 2: Establishment of California Well Regulated Militia:

2.01 A California Militia is hereby established.  
2.02 The commander-in-chief of the California Militia is the Governor of the State of California.  The Governor shall designate such generals, commanders, and other officers of the California MIlitia as the Governor shall deem necessary or desirable.
2.03 Any purchaser, acquirer, owner or person in possession of Militia Weaponry, defined as any one or more of (1) Arms, as that term is used in the Second Amendment of the Constitution of the United States (“Second Amendment Arms”), (2) arms that are more powerful than Second Amendment Arms, or (3) ammunition for the foregoing, is hereby enrolled as a member of the California Militia.
2.04 Persons already in possession of Militia Weaponry on the effective date of this legislation shall have 30 days to inform the Attorney General of the State of California as to (a) their possession of Militia Weaponry making them a member of the California Militia; and (b) disclose to the Governor of California the Militia Weaponry that they possess, as well as Militia Weaponry that the person is trained in.
2.05 Persons entering the State of California with Militia Weaponry shall register as a member of the California Militia prior to possessing Militia Weaponry in the State of California.  The Governor shall establish a registration authority that operates 24 hours a day on every day of the year. Non-residents of California visiting the State of California shall automatically cease to be members of the California Militia upon departure from the State of California.

Section 3: Training, Mandatory Duty, and Leaving the California Militia.
3.01 Members of the California Militia must receive no less than 40 hours of training at least once every six months in safe Militia Weaponry operation, Militia duties, and such other matters as the Governor shall determine.  Legislation may increase, but not decrease, the number of hours of training, expand the subject matter of the training, or expand any other obligations of the California Militia.
3.02 Any member of the California Militia may resign only by surrendering to law enforcement, or otherwise legally and permanently transferring out of his or her possession, all Militia Weaponry.  Any member of the California Militia who leaves the State of California for more than 30 days shall automatically become an inactive member of the California Militia until they reenter the State of California, at which time their membership shall immediately become active again.

Section 4: Criminal Penalties for Dereliction of Duty, Failure to Properly Register:
4.01 It is a felony for a person who is not a registered member in good standing of the California Militia to acquire or possess Militia Weaponry.  The penalty for a violation of this section shall be a fine of not less than $100,000 not more than $1,00,000 and a prison term of not less than 10 years.
4.02 It is a felony for to provide or sell Militia Weaponry to a person who is not a registered member in good standing of the California Militia.  The penalty for a violation of this section shall be a fine of not less than $1,000,000 not more than $10,00,000 and a prison term of not less than 25 years.  The Attorney General of the State of California shall, upon request of a potential purchaser or acquirer of Militia Weaponry, provide a certification of California Militia membership directly to a person designated by the potential purchaser or acquirer.  Such a certification shall be effective for 24 hours after issuance. Good faith reliance on an effective certification shall be an affirmative defense to the crimes described in this paragraph.
4.03 The Governor or his or her designee may call up any one or more California Militia members for active duty.  Failure to timely report for active duty shall be a felony. The penalty for a violation of this section shall be a fine of not less than $100,000 not more than $1,00,000 and a prison term of not less than 10 years.
4.04 The Governor shall issue regulations defining dereliction of duty.  Any modification of such regulations that has the effect of reducing the criteria needed to constitute dereliction of duty may not be made by the Governor, but must instead be instituted as legislation.

Section 5: Mandatory Information and Waiting Period:
5.01 In addition to any other waiting period, testing, or information requirements, any purchaser of Militia Weaponry, including ammunition, shall be required to view an educational video compiled by the Attorney General of the State of California.  Such educational video must show not less than 30 minutes of uncensored crime scene and autopsy photographs of persons killed by the specific Militia Weaponry being acquired by the viewer.
5.02 No Militia Weaponry may be transferred less than 48 hours after completion of viewing such educational video.