Electing a Ticket / the 12th Amendment

The epic battle that led to Thomas Jefferson being elected as our third President with Aaron Burr as his first Vice President is the reason we have the 12th Amendment, and the reason we elect a “ticket” with a President and a Vice President.

Before the 1800 election, Burr agreed to be Jefferson’s VP. At the time, Electors were chosen by state legislatures. The person with the most votes became President and the one with the second most votes became Vice President. Per the Constitution, a tie automatically sent the vote to the House of Representatives to be voted on and resolved. They voted 36 (thirty six) times before Jefferson was finally elected. Burr then became his VP because he had the second most votes. To put it mildly, Jefferson was not pleased with Burr. Nonetheless, he was stuck with him for his first term.

This process had led to less than ideal results in the previous election as well. In 1796, John Adams (Federalist party) received the most votes and became President. Thomas Jefferson (Democratic-Republican party) received the second most votes (three less than Adams) and became his Vice President. They represented different parties and held different beliefs regarding how the government should operate and how much power the federal government should have. As you can imagine, they did not work well together.

It was clear that our young nation needed to modify our election method. This led to passage of the 12th Amendment. I’m not going into details on the entire 12th Amendment, but the biggest change it made was that we elect a “ticket” of two people with separate voting for the President and the Vice President.  Without this, most elections would probably result in one party winning the Presidency and another party winning the Vice Presidency. This could have a positive effect if the two parties worked together to reach a middle ground that both parties could agree on. There are exactly two examples of a President and Vice President from different parties – Adams / Jefferson and Republican Abraham Lincoln / Democrat Andrew Johnson. (Technically, they were both in the same “National Union” party, but that party was created to help Lincoln get support from pro-war Democrats.) In both cases, there really wasn’t much “working together”.

The next time someone brings up political tickets, what will you bring to the conversation?


The Middle Ground

Today, many Americans are again choosing to segregate themselves from those who are “different” from them. This is not based on race but on political party. It can be very uncomfortable to talk to someone who holds strong political beliefs that are different from your own. Politics and religion are two subjects people feel strongly about, and their opinions are frequently very personal in nature. It is easy to offend someone deeply, but that isn’t a reason to not talk at all. It is a reason to be very polite and civil in conversation.

When you start talking and listening to actual real people that you know with different political beliefs than you, you will probably find that there are a lot of things you agree on – many of which may surprise you. Everyone I know, on both sides of the aisle, wants to see health insurance reformed so that, among other things, medical decisions are made by patients and doctors, not by bean counters at a health insurance company. No one I know, even the most extreme right-wingers, actually objects to giving gay couples legal rights, such as hospital visitation and medical decision making for their partners. I know liberals who are pro-gun and conservatives who favor legalizing marijuana. These are all points of agreement for people on different sides.

This doesn’t mean there aren’t issues – and huge ones – but it does mean that there is a middle ground. Compromise is different from middle ground. In compromise, both sides give up in something. The middle ground is things both parties already agree on.

Where There is NO Middle Ground

In both the media and with politicians, there is no middle ground that people can agree on. They focus on opposition to or support of Obamacare. They dwell on church marriage as the only way to give gay couples the legal rights they don’t have, ignoring the possibility of reforming Civil Unions to fill this need. (People feel strongly about religion, and many marriage ceremonies are also religious ceremonies.) Both the media and politicians stake out positions that divide us rather than bringing us closer together. The middle ground is where solutions can be found.

The middle ground is where things get accomplished. Once we find the middle ground, the problem becomes smaller and we either have a solution or a starting point. If we don’t have a solution, we move on to compromise, but the compromises should be smaller since the problem is smaller. This makes it easier to find and implement solutions.

The Middle Ground Can Be Hard

Finding the middle ground can achieve a lot, but it is not flashy. It is not where we get great sound bites that will last centuries, like Patrick Henry’s famous quote “Give me liberty or give me death!” That leaves little room for compromise, but we all remember his name. Roger Sherman’s name is largely forgotten, but he had a profound impact on our nation. He was the primary author of The Great Compromise. The Constitutional Convention was unable to make any progress because large states wanted the number of representatives in the legislature to be based on the size of a state (bigger = more representatives) and the smaller states wanted everyone to have the same number of representatives. His solution was to have two houses, one representing the smaller states’ preference and the other representing the larger states’ preference. He found the middle ground. Without this contribution, our country would be very different indeed, if it had even managed to survive.

Who does this polarization help? Does it help you, as a citizen, when our government won’t compromise? Does it help our government function better? Does it help newspapers to sell and websites to get visitors?

When the Capitol Building was built, the Chambers were built with an aisle down the center. The two major political parties have traditionally set themselves on opposite sides of that aisle. That is the origin of references to the two parties beings on opposite sides of an aisle.

The next time someone brings up partisan politics, what question will you bring to the conversation?


Health Insurance? Or Health Care?

In the debate over national health care, people do not seem to differentiate between health insurance and health care. They are not the same thing.

There are certain things that all humans, indeed all living creatures, need. Food, shelter, clean drinking water, and health care are all necessary to live a happy and long life. This has always been true. Health insurance, on the other hand, did not exist until some time in the last century. As with most things, it’s original form was different from what we know as health insurance today. At what point it changed from one to another is as debatable as the point at which dough turns into bread, and as irrelevant.

The current debate is virtually always framed as a debate on health care when, in fact it is primarily a debate on health insurance. Having insurance does NOT guarantee medical care. If you have health insurance, think about the process you have to go through to get testing or an appointment with a specialist. It’s not easy, and it is definitely NOT guaranteed. Even if your doctor is adamant that you need the test or appointment and goes to bat for you with the insurance company, the insurance company may still deny coverage. Even if they allow it, you’ll still have to pay some portion of it out of pocket.

You can receive health care without health insurance. Our grandparents and great-grandparents and all those who came before them went to their doctor directly for care. They generally paid him, or her, directly. In some cases, the doctor worked pro bono, or without payment, because they knew the person couldn’t afford to pay. The payment might have been cash. It could also have been barter – goods or services the doctor could use, such as fresh eggs or piano lessons for their child. The patient or their family could have done work for them, such as rebuilding a fence. Whatever form it took, they paid directly to the doctor. Since they didn’t have to wait for payment or go back and forth with insurance companies about it, the doctor didn’t need as much office staff, which kept costs lower. Doctors still happily accept cash payments, which is why rich people may opt to not buy health insurance – they can simply pay cash for their care, if they need it.

Clearly, times have changed. It is rare to pay cash for health care. Today, one common benefit of having a job is getting health insurance that your company pays for. One website I read said that health insurance became popular when wages were frozen during World War II. It was a way to increase compensation without increasing base pay.  Think about the time of year when you have to decide on your health insurance plans for the next year. Once you choose, you’re committed to that plan for the entire year, unless you change jobs.

How much time does choosing a plan take? How certain are you that you made the right choice? Do you ever wish you could change before the year is up? If companies did not pay for health insurance, what other ways could that $400 (this is a random number) or more per month of company contributions be used to pay for health care? Could it go into a healthcare reimbursement account? If it did, do you think you would spend all that money in one year? Would the healthcare accounts need changed so money could stay in them long, maybe even indefinitely? If so, do you think you would spend it eventually? What do you think employers would think of putting a set amount of money into an account instead of having to choose plans to offer their employees, provide advice and information to help their employees enroll, collect information from their employees, actually enroll their employees, etc.? (The process isn’t short or easy for either employers or employees.)

The question we need to be asking is not how do we get health insurance for everyone, but rather how do we get health care for everyone. Health insurance may be the means to that end, but it may not be. At this point, continuing to ask the same question – how do we get everyone covered by health insurance, whether they want it or not – is not helping us reach a solution. If we want a solution, and I think everyone really does, then we need to change the conversation, and the first step is by changing the question we start the conversation with.

The next time someone brings up health care reform, what question will you bring to the conversation?


Supreme Court Justices

We all like to believe that justice is blind, meaning it it not influenced by anything but the facts presented to it, and that judges are wise and impartial. Above all, we hope for this from our Supreme Court. Yet, we also know that the Justices are human, and they are chosen and confirmed by politicians. Politicians are not impartial. They choose people they believe will uphold the same things they believe are important.

Do you think politicians look for judges who will be as impartial as possible, or do you think they favor someone who will favor their views? How do you think the personal beliefs of the Justices impact their decisions?

Supreme Court Justices do not have term limits, nor do they have a mandatory retirement age. Most do not retire if the current President holds beliefs that are very different from their own because they know he will nominate someone with a set of beliefs similar to his own. And that person will be there for decades. Instead, they remain in office until a President who shares their views is elected.

Do you think it’s good for the country that their are no term limits or mandatory retirement for Justices? How is it good, and how might the system be improved? What would be required to change it?  Can Congress pass a law to change terms or retirement for Justices, or is a Constitutional Amendment required? If you believe Congress can pass a law, what do you think will happen if that law is brought before the Supreme Court? Will they be likely to uphold it or to find it unconstitutional?

Under Article 2, Section 2 of the US Constitution, the President “shall have Power, by and with the Advice and Consent of the Senate, to…appoint …Judges of the supreme Court.” Both the Executive and Legislative Branches must agree on appointments for the third branch, the Judicial.  Once the President chooses his nominee, he must submit them to the Senate for approval. If the Senate is dominated by people with similar beliefs to the President (generally meaning by his own party), then he can choose a more partisan nominee and still have a good chance of getting them approved. Since 1868, the Senate Judiciary Committee has reviewed all nominees before sending them to the full Senate for full vote.

Why do you think the other two branches are both involved in selecting Justices? How is this helpful, or how does it hurt, the process? Why do you think it is the Senate, not the House or both houses, that must approve nominees?

The next time people are talking about judges and politics, what question will you bring to the conversation?


What is an Executive Order?

What is an Executive Order? President Obama just signed one to allow young illegal immigrants to remain in the country, but do you really know what one is?

They are much like a law written by Congress but do not, of course, require Congressional approval.  This means that the President, one person, can do things that Congress will not or cannot do. Many, if not most, Executive Orders deal with bureaucratic details such as transferring the administration (governing) of American Samoa from the Secretary of the Navy to the Secretary of the Interior. (Yes, they really are that dull.) These bureaucracies or departments within the government report up to a Secretary who in turn reports to the President as part of his Cabinet. They do not report directly to the Congress. They are administered by the Executive Branch, which the President is the head of.


Not all are that boring or limited in scope. In 1942, FDR signed Executive Order 9066. It led directly to thousands of  Japanese Americans, many citizens but all here legally, being interned for years during World War II. They lost their rights. They lost their property and their businesses. They lost their freedom. They lost their dignity. And it was all done by Executive Order. The limited media coverage at the time made it seem very different from the stark reality these Americans were forced to endure by their own government. Despite these actions not being authorized by Congress, they still had the force of law behind them.

What do you think of Executive Orders? Do you think they allow the President to make law without the Congress and against the structure established by the Constitution, or do you think it’s a way to address smaller or urgent problems quickly and efficiently? Or is it both? If it’s both, how can that be? Or is it even more simple – they allow the President to manage all the Departments in the Executive Branch?

In addition, unlike laws passed by Congress, Executive Orders can simply be revoked. A new President, or even the same one if they change their mind, can rescind it. A law cannot be taken back so quickly or easily, or by just one person.

The biggest change ever made in our country by Executive Order was ending slavery – or so I thought until recently. The Emancipation Proclamation President Lincoln issued was actually US Navy Order No. 4, not an Executive Order. An Executive Order would  have applied to all the states including the ones still in the Union and supporting the Northern War Effort. By issuing a Navy Order as Commander in Chief instead, Lincoln guaranteed that it only applied to the states in rebellion. This also meant that slavery wasn’t truly ended by it because it was still legal in some states. Because the Emancipation Proclamation wasn’t a law, as mentioned above, it could also have theoretically been rescinded by a future President. Clearly, that would have been easier said than done for slavery, but that doesn’t mean it couldn’t have been tried.

Why do you think President Lincoln chose to use a Naval Order rather than having Congress pass a law to end slavery? Do you think Congress could or would have passed Emancipation for the entire nation during the Civil War?

Article 1 Section 8 of the US Constitution states one of the rights and responsibilities of the Congress is “to establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States.” This is why setting rules (laws) for Immigration and Custom Enforcement (ICE) is the responsibility of Congress.

Given that the Constitution specifically states that Congress is to establish the rules for Naturalization (citizenship), under what conditions do you think it is appropriate for a President to issue Executive Orders about citizenship? Would it have been appropriate for President Lincoln to issue an order that gave freed slaves and other blacks citizenship, even though the Supreme Court’s Dred Scott Decision said otherwise?  Do you think it would it have been legal, given the Dred Scott Decision? (A Constitutional Amendment is required to over-rule a Supreme Court decision.) Why do you think he choose to write an Executive Order dealing with immigration when it is clearly reserved for Congress?

The National Archives have a listing of all the Executive Orders from FDR to the present so you can read them for yourself.

The next time our President signs an Executive Order, what question will you bring to the conversation?


Why am I doing this?

why am I doing thisWhy am I doing this? I believe passionately that we all need to understand our government and how it works. That means more than just remembering that our high school civics class said something about separation of powers, or reading what Wikipedia says about the Constitution. However, it doesn’t mean taking law school  level courses dissecting every word and punctuation mark and their possible meanings.

We all need to form our own opinions and do more than just regurgitate party lines. We need to move beyond what politicians and the media tell us. The best way to ensure our representatives REPRESENT us is to understand what they are supposed to be doing, and make sure they do it. The best way to do that is to read and learn about the Constitution. That doesn’t mean you need to study it like you’re going for your bar exam to be a lawyer, just that you need to understand basically what it is saying.

I am writing this blog to support my book, “The Constitution: It’s the OS for the US”, but I will be addressing current events in this, which I do not do in my book. Like my book, I will include question sets to encourage my readers to think about our government and form their own opinions.

My goal in both is to get readers to think through issues related to our government, not to just regurgitate what someone else says or writes. In order to do that, we all need to understand how our government is supposed to work, and that means understanding our Constitution. We also need to stop asking the same questions. Many questions have been asked so many times, in exactly the same form, that people usually give an automatic response without actually thinking about the subject. If we want to make progress, we need to change the conversation. This belief is why most posts end by asking the reader what question they will ask the next time that subject is brought up in conversation.

I sincerely hope this blog and my book help you understand our Constitution better and to think about other viewpoints.