Tag Archives: Constitution

Number One

The Supreme Court has certainly received a lot of attention lately: hearings, pending decisions, leaked drafts and partisan splits.  We tend to focus a lot on partisan splits, but 9-0 unanimous decisions occur more often than 5-4 and 6-3.  And those are just announced decisions.  I suspect they are also quite common on procedural things, like which cases to hear.

Shertoff proposed flag

Last week the Court announced a 9-0 decision on an interesting case, Shertleff v Boston.  Quickly: Shertoff was a free speech case in which a citizen (Shertleff) was denied flying a Christian flag (red cross on blue patch with white background) on one of three masts at the Boston city hall.  The city had never denied such a one-day request before.  But the court considers such facts not so much as the law. [1]

Regarding the law, the court has always bent over backward to protect free speech.  And the right to have that free speech heard – or, in this case, seen.  It’s not the first time Boston and the area has been so severely spanked by SCOTUS on speech.

In 1993 the Irish Gay, Lesbian, Bisexual Group of Boston (GLIB) wanted to participate in the St Patrick’s Day parade.  They were denied (although not by the city, rather by an independent organization running the parade).  GLIB sued and Hurley v Irish-GLIB, Inc went to the highest court.  These things usually take a while to wend through the court system.  The court decided again, in 1995 and unanimously 9-0, that free speech gets pole position.  Gays et al must be allowed to march in public parades.

Another unusual 9-0 decision came in 2014 in McCullen v Coakley.  A Massachusetts law was passed in 2007 mandating an anti-protest “buffer zone” around entrances to abortion clinics – even if that buffer extended to public areas like sidewalks. Protestors sued. Free speech won unanimously, again.  The whole law was stricken.

In every case above the most progressively liberal and conservative justices united to rule in favor of the most liberal interpretations of free speech, even if it went against their personal social principles in the specific cases.

This even applies to burning the flag, see Johnson v Texas, decided in 1989.  Although narrowly decided at 5-4, it’s interesting that conservative-leaning Kennedy and most-conservative Scalia voted with the majority to permit flag burning.  [Kind off odd, as the specific flag burning incident was a protest against Ronald Reagan, done just outside the Republican convention of 1984 — and by 1989, when the case was finally decided, Reagan had recently appointed Justice Anthony Kennedy].

Not long after Johnson, above, the court heard a very similar case.  In response to Johnson Congress quickly passed the Flag Protection Act, which prohibited flag desecration and mistreatment.  They basically dared the courts to take up the issue again.

This got to SCOTUS quickly, dying a 5-4 death in 1990, in United States v. Eichman.  Again, with conservatives Scalia and Kennedy concurring: flag burning is speech.  Speech is protected.

Antonin Scalia, SCOTUS Judge 1986-2016

Years later Judge Antonin Scalia stood by his votes.  “If I were king, I would not allow people to go around burning the American flag.  However, we have a First Amendment, which says that the right of free speech shall not be abridged…”

Scalia’s reference to the First Amendment to the Constitution gives us a good chance to review this very important part of the US Constitution.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

One thing that’s interesting right from the start is that this Amendment, as written, is directed at “Congress” — not to the states, or to the state legislatures, or to city governments.  Yet the Supreme Court, and lower courts by precedence, have determined for a long time that these rights (religion, speech, press, assembly) are so very important that they apply to all branches of government.

These rights are indeed important.  Let’s consider Freedom of the Press.  This points to just one reason why I personally did not really react much to the great fear-stoking regarding the tenures of, let’s say, our last two presidents: Obama and Trump.  What’s that you say?  Because they were pummeled and attacked by the press, and cartoonists, daily.  None of those publications or voices were silenced, arrested, or “disappeared” by a government response.  We can extend this to the many anti-this and pro-that demonstrations that happened during each presidency.  Free press and free speech all.  [Presidential claims of “fake news” and a bible walk to St John’s notwithstanding].

Freedom of the press is so important it should cause us to consider how contemporary events would have played out if such a valuable and cherished freedom truly existed in, say, China and Russia.

Would there be an atrocity-filled war in Ukraine right now if Russia had such a court-protected freedom?  How might the Covid pandemic have played out if China had freedom of the press?  Reporters Without Borders (RSF) rates China 175th and Russia 155th (out of 180) in the world in Press Freedom.

By way of comparison, the US gets an overall top-grade score of “Good”, and “Satisfactory”, but still comes in at only 42nd, per RSF.  Saying the “US is better than most” is not anything like saying “Russia and China are better than North Korea” (dead last). They are so very low because of authoritarian government interference and censoring. Although we (the US and much of Western Europe) can do better, we are in pretty good standing regarding press freedom.

In absolute freedom of speech, the US does rank #1 in the world (World Economic Forum rankings). [2]

“I disapprove of what you have to say, but I defend your right to say it” has long been a maxim of US law and principals. [3] Recent Rasmussen polls regularly show over 80% of Americans believe free speech is more important than offending someone, and prefer it to giving government control of speech content. [Caveat, among younger Americans this number is dwindling.]

In reviewing the RSF’s Free Press evaluation criteria the US seems to lose ground for a variety of non-government reasons:  there are far fewer jobs for investigative journalism than there used to be; many writers self-censor; much media fails to fairly present alternative views. [4] It’s all related and these conditions continue to morph.  All-in-all, these topics are very large kebabs to skewer. As is Free Speech, in the context of, say, Twitter and Elon Musk. I’ll leave those for others to tackle.

Here’s to #1.  The First Amendment, that is.

Peace,

Joe Girard © 2022

Thanks for reading. As always, you can add yourself to the notification list for newly published material by clicking here . Or emailing joe@girardmeister.com

Footnotes below.  Acknowledgements to recent articles by Jeff Jacoby (Boston Globe) and The Economist for stimulating the thoughts that led to this essay.

[1] More on recent Shetleff Case: https://www.scotusblog.com/2022/05/boston-violated-first-amendment-when-it-rejected-christian-flag-court-unanimously-rules/

[2] This is supported by a 2015 Pew Research poll, here.  By 2021, the US has dropped into a virtual tie with Norway and Denmark for #1 [link], which apparently has more to do with Americans’ perception of free speech than actual government or private censoring.

[3] This quote is often attributed to Voltaire, 18th century French philosopher and strong proponent of civil liberties.  It’s actually probably best attributed Evelyn Beatrice Hall, an early 20th century biographer of Voltaire, trying to capture Voltaire’s philosophy.

[4] Figure and scoring, ref: Reporters without Borders site:
Reporters Without Borders site

Reporters without Borders 2021 World Map, hard to believe Russia is red, not black.  But this was before Ukraine.

White (score 0-15) relates to a Good Situation.
Yellow (score 15-25) reflects a Satisfactory Situation.
Orange (score 25-35) represents a Problematic Situation.
Red (score 35-55) represents a Difficult Situation
Black (score 55-100) represents a Very Serious Situation

 

 

On State Sizes and Power

Anyone who has glanced at a map of the United States has had this thought: Look at all those big states with straight lines, something like Tetris assembly blocks.  Perhaps you’ve expressed it out loud: What’s that all about? — All those straight lines?

All US States have at least part of their borders made up of “straight lines”

Perhaps none draws your attention more than my home state of Colorado, and not just because it is somewhat large; in fact the 7th largest of all states south of 49 degrees.  It’s because its boundaries are four perfectly “straight” lines (as is Wyoming): two east-to-west, spaced exactly 4 degrees of latitude apart; and two north-to-south, spaced exactly 7 degrees of longitude apart.  [Since the world is curved, the east-west lines are, of course, not perfectly straight].

Tetras Blocks

Now why is all of that?

The history of state shapes — and straight line boundaries — long precedes the incorporation of western states into the union.  It’s a fact that the shapes of each of the original 13 states also had straight line boundaries, mostly along lines of latitude. And each of those, in turn, got their straight lines from charters issued by the Monarchs of England, in the 17th and 18th centuries.

All of the original 13 colonies that made up the original US had straight lines in their colonial borders

Those original colonial charters, issued well before the Declaration of Independence, laid down much of the DNA for the political conflict we suffer today, now well into the 21st century.

Hearkening back to those original charters, with boundaries following straight lines as well as hill crests and river channels, led to colonies of vastly different size and population.  When the colonies’ representatives assembled in the Continental Congress – eventually to seek independence from England – the smaller colonies (think Delaware, Rhode Island, and 9 more) were wary of the potential political power from larger, more populous and economically more brawny, muscular colonies, especially Virginia and New York.

Once independence was attained – de facto after victory and Yorktown in 1781 and officially by the Treaty of Paris 1783 – the 13 independent states hammered out their differences by many compromises to became a single nation, which we generally respect today as the Constitution of the United States; it became the federal rule book on March 4, 1789.

When the Paris Treaty was signed the new government immediately had some very important questions regarding states’ relative powers to address.  How to administer all the new land west of the Appalachians, and what are the details of how new states are to be transformed from territories to state stauts?

A top criterion for this evolution was that no state should have excessive power over the others.  This was a lesson learned through the tribulations of the Continental Congress. Sadly, this is largely unwritten and not in any legislation that I know of or could find.  Nonetheless, upon entering the Union, a state would necessarily be comparatively weak, since only 60,000 residents were required to apply – most original states had many times that.  But, by allocating a fairly consistent amount of land area to new states, their power could be constrained to reasonable limits as their populations grew. Expecting that it would take many generations to populate “the west”, and believing that the climate was consistent with reports of “the vast American desert”, most of the western states were allocated larger areas.

In short, new states were allocated area commensurate with the expected ability to grow a population that would make them all roughly equal in political power.

There were a few errors made here, including: 1) the westward emigration occurred much more rapidly than expected; and 2) without a full understanding of various western climates, they could not accurately forecast what the full and final population of these new states would be. Spend much time in the vast lands between the Pacific coast and the Appalachians and you can attest that they are much more varied than anyone in 19th century DC could expect.

To address these needs of expansion, new states and balancing state powers:  there was first the Land Ordinance of 1785 followed by its sister legislation the Northwest Ordinance of 1787, which allocated five states in the new Northwest Territory (north of the Ohio River and east of the Mississippi River). These eventually became, in order: Ohio, Indiana, Illinois, Michigan and Wisconsin.  Removing the quirk of Michigan’s Upper Peninsula we can compare their landmasses and today’s Electoral Vote power as shown in the table here.  I’ve also included the first two “western states”, Tennessee and Kentucky, which joined the Union before Ohio, under the same general guidelines.

Land Area and EC votes of first 7 States admitted after independence (but not Vermont: a freak of history)

Although there is certainly some variation, it is not nearly as wide as the original 13. Among those, Virginia had area of 67,000 sq miles* to Rhode Island’s 1,500sq mi.  And an Electoral College weight of ten to R.I.’s three votes.  In fact, Rhode Island was so put off and fearful that they did not ratify the Constitution until 1790, and hence their Electoral Votes, although it mattered little, were not counted in George Washington’s first election. [* – This is not the exact area of the original Virginia; I have stripped off most of the lands west of the Appalachians that was removed as part of the 1st Bank of America compromise; this also happened to other original states, especially North Carolina and Georgia. These sizes can be seen in the second map, above].

The allocation of most subsequent new states was intended to keep a balance between the states more or less in order.  Using lines of latitude and longitude, a long and established practice dating back to the monarchs, was continued with each and every new state (with the exceptions of Hawai’i and Alaska: the latter’s eastern border was established by treaty) as this was a convenience in the drawing of territory and state lines.  Although this approach had very little regard to geography (for example, the towering Rocky Mountains run right through the middle of Colorado) it was easy to assign areas in this way.

[A coincidental oddity: the border between Colorado and New Mexico, along the 37th parallel, passes within a few feet of the peak of Raton Pass]

There were certainly some anomalies, and in some regard, they curse us today.  Of course, Hawai’I and Alaska, admitted in 1959, were freaks of history.  But, they are quite small with regard to population and will forever remain that way.  But there were others.  “Free” West Virginia was split off from Virginia during the Civil War.  Virginia’s area was further reduced to 42,700 sq miles and West Virginia comes in at a relatively puny 24,200 sq mi.

Before the bloodletting of the Civil War, two other states were admitted under relatively “unplanned” circumstances.  States that bore no resemblance to the unofficial rule of keeping states’ powers relatively balanced.  Those two were Texas and California.  And the circumstances were directly related to haste — and in trying to cement the United State’s ownership of these lands during and after the Mexican-American War.  The California Gold Rush (“In a cavern, in a canyon, excavating for mine; dwelt a miner, 49er and his daughter Clementine … “) added to the urgency of speeding California into the union, in 1850. The government played up the urgency of admitting them rather quickly without regard to (and without understanding) how large their populations could grow.

These two, Texas and California, came in massively at 268,600 and 163,700 square miles.  Wow. So much for planning and vision. Their populations have since swelled so (California far more than Texas) that they carry much more sway on national politics than was ever envisioned in our country’s long history.

At the time those states (CA and TX) could conceivably have been split into 3, 4 or even 5 territories, each slated to become a state at some point.  However, that would have disrupted the delicate balance between the number of slave and free states.

So we carry these historical relics and artifacts with us today in our national politics.  The impacts on things like the Electoral College and political clashes is huge.  Most people have a complaint about how it is working out.  Many workarounds have been suggested.

As of today, eleven states, plus DC (Colorado is now on track to become the next) have passed legislation to join a Compact wherein they are committed to giving all their Electoral Votes to whoever wins the national popular vote.

As during the Constitutional Convention, most small population states will remain wary of the larger states, especially California — especially as the size of the Compact grows — and as the Compact threatens to drown out their their Whoville voices. At some point, perhaps only Horton will hear them. As of now, the 18th century constitutional compromise that protects smaller states from the massive vote generating capability of the larger states still protects them … at least for now.

Anyway, that’s the short story on all the straight lines, how we got them and how it affects us today. Thanks for reading — and there’s a final note below with plots showing that, overall and excepting CA, TX, HI, AK and the original 13, the allocation of state sizes and shapes was actually done pretty well.

Peace

Joe Girard © 2019

To contact Joe just email him at joe@girardmeister.com

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Final Thoughts.

  1. I must acknowledge a fun little book by Mark Stein that gave me some factoids and insights, called “How the States got their Shapes”, Smithsonian Books, (c) 2008
  2. For completeness and visualization: Below I have plotted the states’ area vs their number of electoral votes.  In the first plot, all 50 states are included.  The visually obvious Electoral outliers with extraordinary power according to the founders, are (in order) California, Texas, Florida and New York.  California and Texas — and to a certain extent Florida — are freaks of historical circumstance.  New York is of course one of the original states.  (California currently gets 55 votes; New York and Florida 29, and Texas 38).

In the second plot, the original 13 have been removed (as have West Virginia and Maine, since they were spin offs of original states) and the historical freaks.   Florida is retained.  The 2nd plot is on the same scale as the first, so that one can see that these remaining states make a nice little cluster and one can deduce that, odd historical circumstances aside, the federal gov’t did a pretty good job of controlling and normalizing states’ relative power.  A few states have very low Electoral Votes (e.g. the Dakotas, Wyoming, Montana), and that’s understandable, as the government did not really understand how these areas could not support much population.

Scatter of State sizes and Electoral Vote Compared: 2nd Plot does not include original 13, TX, AK, CA.

I contend the Electoral College method of choosing presidents and Veeps would be nearly bullet proof with a few changes; and the first change would be to make the total cluster plot of states population and power look like the second plot, and not the first. It can reduce the likelihood of winners losing (and losers winning), and respect the choices of smaller states without completely doing away with the Electoral College, which is effectively what the States Compact does.