The United States Constitution

A forum for discussing the meaning of the United States Constitution for our political process.

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Location: Middleton, Massachusetts, United States

I am concerned about the direction of the United States economy and politics, and about our declining influence in the world. I feel we are losing our moral and ethical bearings.

Friday, November 24, 2006

How the Cherokees Were Removed to Oklahoma

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This episode, certainly appropriate for Thanksgiving, describes how the Cherokee Indian Nation, the original inhabitants, for thousands of years, of Georgia, North Carolina, Alabama, and other southeastern states, were ethnically cleansed (the term used at the time was "removed") to Indian Territory, a dry prairie, a totally hostile environment, even though they had lived in peace with their white neighbors.  I described the legal basis, the doctrine of acquisition by conquest created by John Marshall and the Supreme Court, for this in the last episode.

The forced "removal" of the Cherokees, along what is now called the Trail of Tears (in the Cherokee language, it's Nunna daul Isunyi—"the Trail Where We Cried.") began on May 23, 1838, from near what is now Chattanooga, Tennessee.  This is merely one horrible act (and hardly the final one) in a drama filled with lies, deception, broken promises, and (yes) good but misplaced intentions in our Native American policy.   Professor Francis Paul Prucha, SJ, of Marquette University, a distinguished historian of our Native American policy, wrote that there were only four possible solutions to the Indian-white man conflict:  genocide (exterminate the race), integration (Indians live like white people), protect the natives where they lived, or removal.  By 1838, genocide had actually worked, for the most part, in the New England and Middle Atlantic states.  For example, King Philip's War (1675-1676), one of the most bloody and costly in American history.   It resulted in the elimination of The Narragansett, Wampanoag, Podunk, Nipmuck, and several smaller tribes, (about 3000 Indian soldiers in all) while the Mohicans were greatly weakened. Integration was not what the Indians really wanted.  Protecting the natives where they lived was not practical because the white squatters were gobbling up Indian land and the United States did not have enough military might, or will for that matter, to protect the tribes.  So the most humane option, according to Andrew Jackson and the other authors of Indian removal, was for the Indians to "relocate" - sort of the Final Solution of the Indian Question - resettle to a land where the Indians could live according to their tribal ways and the whites could "develop" the lands from which the Indians were emptied.

There was also a security aspect to Indian removal.  Like some of us believe that all Muslims in the United States are a threat to our national security, Indians were regarded as a security threat as well.  This argument had some merit.  It's no accident that the war called the Seven Years War in Europe (1756-1763) was called the French and Indian War in the United States.  Indeed, many of the Indian tribes in the west (the Iroquois, siding with the British, were a significant exception) sided with the French against the British colonists.  Pontiac's Rebellion (1763-1766) was an uprising by Indians around the Great Lakes area, against the harsh treatment of the Indians by Lord Jeffrey Amherst, the namesake of Amherst College in Massachusetts.  The British used Indian spies against the Americans in the Revolutionary War.

After our independence, there was constant tension and a number of wars fought between the white settlers and the Indians.  Fighting Indians was sort of a rite of passage for many political leaders in the first half of the 19th century.  During the War of 1812, Chief Tecumseh attempted to unite the Indians in the west into a coalition to drive the white settlers out.  Tecumseh's army was defeated at the Battle of Tippecanoe, by the Governor of the Indiana Territory, William Henry Harrison,  who became a hero as a result of this victory.  Harrison ran successfully under the slogan "Tippecanoe and Tyler too", to become our 9th President in 1841.  Unfortunately for Harrison, he only served one month because he died of pneumonia because of all the job seekers who beseiged him when he assumed the office of the President.   One of the less publicized parts of Abraham Lincoln's biography is that he was a soldier in the Black Hawk War (1832), which drove the Sac and Fox Indian tribe out of Illinois, as a young man.  Another President, Zachary Taylor, also fought in the Black Hawk War. So you can think of Jackson's Indian policy as being "tough on defense" - a very popular position in the "red state" West.

By 1830, the Cherokee Nation was the largest Indian group east of the Mississippi.  When I call them a nation, I'm only using the term they called themselves.  They had established a functioning government, with its capital at New Echota, Georgia; a written Cherokee language developed by Sequoyah; and even a Cherokee Constitution, modeled after the United States Constitution.  The Constitution was written by principal Chief John Ross and Major Ridge, the speaker of the Cherokee National Council, and adopted on 26 July 1827, declaring the Cherokee Nation to be a sovereign and independent nation. Many Cherokees became Christian.  As I mentioned in my last episode, they petitioned the Supreme Court, in Cherokee Nation vs. Georgia, as a sovereign nation, even though the Marshall Court struck down their petition.  That's not the end of the story - more on that later.  The point is that the Cherokees were not savages.  They adapted to white ways, creating a government far more functional than the current one in Iraq.

Why did many Georgians want Cherokee removal?  After all, the Treaty of Hopewell (1785), signed between the Cherokees and the US government, defined an agreed boundary between the Cherokee and United States nations.  Our government encouraged the Cherokees to develop white ways, and as we have seen, they did.  With the Compact of 1802, the state of Georgia relinquished to the national government its western land claims (which became the states of Alabama and Mississippi). In exchange, the national government promised to eventually conduct treaties to relocate those Indian tribes living within Georgia, thus giving Georgia control of all land within its borders.  In 1823, Creek chief William McIntosh, as an agent of the United States, attempted to bribe prominent Cherokee leaders to make major land cessions to the US. The $12,000 offer was rejected. In 1824, the Legislative Council sent John Ross, Major Ridge and other Cherokee leaders to Washington in an attempt to persuade President James Monroe to negate the Georgia Compact of 1802. The meeting ended in a stalemate, with the Cherokee refusing to cede their lands and Monroe refusing to negate the Georgia Compact.

The land claims issue heated up after gold was found on Cherokee land in north Georgia, sparking the Georgia gold rush - this before the California gold rush.  In 1829, the Georgia legislature requested the US government to enforce the Compact of 1802, to confiscate Cherokee land.  In 1830, at the urging of President Jackson, Congress passed the Indian Removal Act, which authorized Congress to make treaties with the Indian tribes to exchange their ancestral land for land west of the Mississippi.  The Act did not remove any Indians.  It just legalized their resettlement, eventually to Indian Territory, the current state of Oklahoma.

The first removal treaty signed after the Removal Act was the Treaty of Dancing Rabbit Creek on September 27, 1830, in which Choctaws in Mississippi ceded land east of the river in exchange for payment and land in the West.  The overwhelming majority of Cherokees opposed removal.  But Jackson was persistent.  He negotiated a treaty with a tiny, unrepresentative faction of the Cherokees, called the Treaty of New Echota, in 1836.  When the Cherokees found out about this, they sent a petition with 16,000 signatures to Washington to express their opposition to the treaty.  The Treaty was ratified by the Senate, as all treaties must be, by a vote of 31-15, which meant (a 2/3 majority being required to ratify a treaty) that the treaty passed by one vote.  Eventually, most of the principal negotiators of the treaty were assassinated by other Cherokees.  Nevertheless, having an authorized treaty negotiated by a tiny fraction of the Cherokee nation, the United States government proceeded with Cherokee removal.  The actual removal was due to start two years after the Treaty of New Echota, in May, 1838.  By that time, Jackson was out of office.  The removal was done by Martin Van Buren, Jackson's vice-president, who became President in 1837.

There was significant opposition, especially in New England, against the Indian Removal Act.  The famous essayist Ralph Waldo Emerson wrote a letter protesting the Cherokee removal to President Van Buren.  Here's an excerpt:

The newspapers now inform us that, in December, 1835, a treaty contracting for the exchange of all the Cherokee territory was pre-tended to be made by an agent on the part of the United States with some persons appearing on the part of the Cherokees; that the fact afterwards transpired that these deputies did by no means represent the will of the nation; and that, out of eighteen thousand souls composing the nation, fifteen thousand six hundred and sixty-eight have protested against the so-called treaty. It now appears that the government of the United States choose to hold the Cherokees to this sham treaty, and are proceeding to execute the same. Almost the entire Cherokee Nation stand up and say, " This is not our act. Behold us. Here are we. Do not mistake that handful of deserters for us ; " and the American President and the Cabinet, the Senate and the House of Representatives, neither hear these men nor see them, and are contracting to put this active nation into carts and boats, and to drag them over mountains and rivers to a wilderness at a vast distance beyond the Mississippi. And a paper purporting to be an army order fixes a month from this day as the hour for this doleful removal.

Nevertheless, under the command of General Winfield Scott, the removal proceeded.  Initially, the removal was supervised by the army, but later the Cherokees themselves supervised their own removal.  There actually is not one Trail of Tears but instead, a number of trails, as this map shows.  Estimates of the number of Cherokee who made the trek vary, although a number between 15,000 and 17,000 is generally accepted.  Somewhere between 2,000 and 4,000 Cherokees perished along the route.  The winter was especially harsh and frostbite deaths were common.  The Cherokees crossed frozen rivers in the dead of winter wearing light clothes and moccasins.  Food was scarce.  The destination, later becoming Tahlequah, Oklahoma, was harsh and desolate.  The Cherokees had to compete with other Indian tribes for food and water.

Amazingly, the Cherokees reconstituted themselves and even had periods of prosperity.  They are now the largest organized Indian tribe in the United States.  There have been some leadership crises in recent times, so in many respects they have adopted the white man's ways all too well.  They say that history repeats itself, first as tragedy, and second as farce.  Someone added "and third, as tourist trap".  These days, you can hike or drive the Trail of Tears National Historic Trail.   I'm sure that, along the way, you can eat what the Cherokees couldn't eat, stay at the Trail of Tears Sports Resort, and buy an authentic Cherokee squaw doll.  There are also a number of Cherokee bands outside of Oklahoma.  In North Carolina, a number of Cherokees escaped from the Federal manhunt or were located in a remote area outside the dragnet.  Today, you can visit Cherokee, North Carolina, home of the Eastern Band of Cherokees, officially recognized by the US government.  There's great hunting and fishing, demonstrations of native arts and crafts, a museum, gift shops, and more.  It's important that we don't forget this incredibly awful chapter of our history, because it could repeat itself.

Tuesday, November 21, 2006

The Legal Basis for Native American Ethnic Cleansing

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This is the first of two episodes in which I will discuss how we cleared out the native Americans (I'll use the word Indians, in spite of it's political incorrectness, in my discussion because that was the word used at the time), from the lands east of the Mississippi River. It's a sad and embarrassing story which has largely been papered over in our official accounts, such as in high school, and even some college, textbooks; and, as I mentioned in the last episode, in Jackson's official White House biography. Last night, I saw the football game between the New York Giants and the Jacksonville Jaguars, played in Jacksonville, Florida. Jacksonville is named after the central figure of our story, Andrew Jackson, the 7th President of the United States. Jackson is responsible for the US conquest of Florida, our purchase of Florida from Spain in 1819, and he was military governor of Florida in 1821. He cleaned out Florida of the native Seminoles and Creek Indians. So it's not inappropriate that northern Florida's largest city is named after him. He's certainly portrayed as an American hero, he certainly "opened the West" to settlement for American white people, and he acted out of what he thought of as noble intentions. But in the process, the man the Indians called "Sharp Knife" also became the architect of Indian removal, which in its effect was little different from the ethnic cleansing policy of Slobodan Milosevic or the forced removal of the Armenians into the desert by the Turks during World War I. In this episode, I will discuss the legal basis for our Indian ethnic cleansing policy. The featured player here is none other than John Marshall, the original judicial activist who did so much to expand Federal power into areas the Framers never thought of. In the next episode, I will explain how Andrew Jackson used these legal tools, as well as some others that he created, to remove the Indians, in the name of national security, from land that was their home for centuries to the barren, unproductive plains west of the Mississippi, along the Trail of Tears.

The Constitution refers to Indians directly only once, in the Commerce Clause, part of Article I, Section 8, which gives Congress the power:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

With respect to the Indian tribes, this raises more questions than it answers. First, Indian Tribes have a different status from "foreign nations". They are clearly some type of nation because both the Federal government and the states had signed "treaties" with Indian tribes. For example, On November 28, 1785, the Treaty of Hopewell was signed between the US Representative Benjamin Hawkins and the Cherokee Indians. The treaty laid out a Western boundary of settlement for the Colonials. In 1786, the US government also signed treaties with the Choctaws and the Chicasaws. Treaties are normally signed between sovereign nations. What kind of nation did we think the Indian tribes were? If they did not have full sovereignty, what was its scope?

After the French and Indian War ended, in 1763, the British Parliament enacted the Proclamation of 1763. Many of the Indian tribes had allied with the French in the French and Indian War. Parliament, desiring peace with the tribes and expansion of the profitable fur trade in the West, proclaimed a line, called the proclamation line, roughly corresponding with the Appalachian mountains. British colonists could not settle west of that line. In addition, Indian tribes and white settlers could not enter into property contracts because the British government believed that native lands belonged to the Crown. Clearly, the British saw the Indian tribes as enough of a "nation" that they could negotiate treaties with them, although not enough of a nation that it doesn't own the land underneath them.

The colonists felt constrained to the coastal areas by these rules. The restrictions on land purchases were as much of a restriction on American liberty as, say, the Stamp Act. Land speculation in pre Colonial America was something like venture capitalism today - a way to make easy money. Our Founding Fathers were eager participants in these ventures. George Washington, for example, was one of the largest landowners in Virginia, listing his occupation as "surveyor and mapmaker". Washington, as President, chose the site for the District of Columbia. It was probably not an accident that the District was near much property that Washington and his family owned. By happy coincidence the District of Columbia was both a great location for our nation's capital and a profitable venture for the Washington family.

After the Revolution, with the Proclamation of 1763 null and void, there were a number of schemes to purchase western lands, which led to disputes about whether land purchases, say from an Indian tribe to a white settler, were legal. If an Indian tribe is a nation, capable of entering into a binding treaty with the United States, surely the tribe can sell some of its land to whoever it wants to, right?

Well, not exactly. The John Marshall Supreme Court grappled with this, and other Indian related questions, defining the legal status of Indian tribes in a way that made Jackson's Indian ethnic cleansing legal and constitutional. The most important case, Johnson v McIntosh, 1823, (you'll see McIntosh written as M'Intosh) involved two conflicting land claims over a vast area of what is now part of the states of Illinois and Indiana. Here are the facts of the case, from the Wikipedia article:

Thomas Johnson bought land from Piankeshaw Indian tribes in 1773 and 1775. The defendant, William M'Intosh (pronounced "McIntosh"), subsequently obtained a land patent to this same land by the United States government. The plaintiffs, lessees of the son and grandson of Thomas Johnson who had inherited the land in the interim, brought an action for ejectment against Mr. M'Intosh in the Illinois District Court, claiming that it was theirs by virtue of their grandfather's purchases in 1773 and 1775. Plaintiffs contended that their title ran directly from the Native Americans who owned the property and therefore it was superior to defendants’ title. Defendant M’Intosh, on the other hand, maintained that the land belonged to him by virtue of the United States’ land patent. The District Court of Illinois the district court held that defendant M’Intosh’s claim was superior on the grounds that the Piankeshaw were not able to actually convey the land because they never “owned” it in the traditional sense of the word. The Plaintiffs requested review of the decision which granted title to the property in that state to defendant M’Intosh on the basis of the land grant from the United States.

The Supreme Court unanimously ruled that the United States government grant was superior. The "title search", so to speak, by the Court, started in 1609, when the Indians inhabited the entire land and had title to it. The Indians, according to the decision, owned:

the whole of the territory, in the letters patent described, except a small district on James River, where a settlement of Europeans had previously been made, was held, occupied, and possessed, in full sovereignty, by various independent tribes or nations of Indians, who were the sovereigns of their respective portions of the territory, and the absolute owners and proprietors of the soil; and who neither acknowledged nor owed any allegiance or obedience to any European sovereign or state whatever.

So why couldn't they sell their property, like any other owner? Marshall, as in Marbury v Madison, where he created the principle of judicial review where it hadn't existed before, creates the theory of "acquisition by discovery". Marshall wrote:

However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned. So, too, with respect to the concomitant principle, that the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others.

The Indians live on the land "merely as occupants", while they are "in peace". They do not have title to the land. They only can stay on the land at the suffrance of the ultimate owner, the United States of America. In The Cherokee Nation v The State of Georgia (1831), the Court went further. When President Jackson, acting on the basis of the Indian Removal Act of 1830, ordered the Cherokee tribe to move from their ancestral home in Georgia, the Cherokees, acting as a nation, appealed directly to the Supreme Court to stop it. The Marshall Court ruled that the Cherokees were not a sovereign nation but instead a "denominated, domestic, dependent nation", and denied the Cherokees a hearing. Marshall wrote:

They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.

They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the president as their great father. They and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a political connexion with them, would [30 U.S. 1, 18] be considered by all as an invasion of our territory, and an act of hostility.

An excellent, detailed book about the history of the doctrine of discovery and acquisition by conquest is Conquest by Law: How the Discovery of America Dispossessed Indigenous People and their Lands, by Professor Lindsay G. Robertson, Professor of Law at the University of Oklahoma. This "discovery doctrine" has been enshrined not only in our law but in the laws of other countries, such as Canada and Australia, in treating their native population.

Thursday, November 16, 2006

The Election of 1824 - When (Some of) The Candidates Decided the Outcome

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Picture this:  an election where there was only one party, but with four main candidates all from that party.  The people in 3/4 of the states get to vote for Presidential electors who are supposed to vote for the candidate of their choice.  In the other 1/4 of the states, no elections are held for President because the legislature gets to pick the electors.  None of the 4 candidates gets a majority of the vote, which throws the election into the House of Representatives.  In a back room deal, the candidate who received the most popular votes in the states where elections were held for President is frozen out by the other 3 candidates, who choose one of their own as President, with the understanding that he appoint another of them as Secretary of State  That's roughly what happened in the Election of 1824, an election which ranks with the elections of 1800, 1876, and 2000, as examples of why our Presidential election process is, and has always been, seriously flawed. 

In 1824, there was only one national political party, called the Democratic-Republicans, which was the legacy of Jefferson's Republican party.  The other political party, the Federalists, had been discredited by their opposition to the War of 1812.  By 1816, they had disappeared, so that James Monroe, had an easy time becoming our fifth President.  In the Election of 1816, Monroe, President Madison's Secretary of State, received 183 electoral votes to 34 electoral votes for his Federalist opponent, Rufus King.  In the Election of 1820, Monroe received every electoral vote except one.  Monroe's Presidency was called the era of good feelings because of the lack of controversy surrounding his election.

Monroe had opposed the ratification of the Constitution, joining the Virginia anti-Federalists.   He certainly wasn't alone in Virginia.  Thomas Jefferson and Patrick Henry also had opposed ratification, believing that the Constitution gave too much power to the central government.  Yet, like Jefferson, he ended up expanding Federal power as President.  Monroe's contribution was the Monroe Doctrine of 1823, in which he declared that the United States would take action against any European power that attempted to colonize the Americas (including Latin America). Certainly this was a bold step, a young country flexing its muscle.

By 1824, the President and both houses of Congress were all members of the same party.  No matter - the Era of Good Feelings came to an abrupt end as a result of this tumultuous election.  The winner of the popular vote (in those states where a Presidential vote was conducted) was Andrew Jackson, the war hero from Tennessee.  Most of the standard textbooks cite Jackson's rise to national prominence as a result of the Battle of New Orleans, a battle which took place after the Treaty of Ghent, ending the War of 1812, was signed, and so was totally unnecessary.  His record after that is not emphasized so much, or is omitted, as it is in the official White House biography of Jackson.  Most of his military activity during (and after) the War of 1812 was centered around a different enterprise:  fighting the Indian tribes.   Jackson's traditional nickname is Old Hickory.  From the Indian point of view, he has a different nickname - Sharp Knife - because of his viciousness and cruelty during the so-called Indian wars.  During the War of 1812, commanding the Tennessee militia during the Creek War, he took on the Creek Indians and defeated them at the Battle of Horseshoe Bend.  His main accomplishment as an Indian fighter occurred during the First Seminole War, in which he conquered Florida.  Indeed, after the Adams-Onis treaty of 1819, in which Spain ceded Florida to the United States, Jackson became military governor of Florida in 1821, starting a regime which can be described as Indian ethnic cleansing.  It was for these activities, more than the Battle of New Orleans, that gave Jackson his popularity in the Election of 1824.

The other potential candidates were John Quincy Adams of Massachusetts, the Secretary of State; William H. Crawford of Georgia, the Secretary of the Treasury; Congressman Henry Clay of Kentucky, the Speaker of the House; and John C. Calhoun of South Carolina, the Secretary of War.  Crawford received the nomination of the caucus in Washington, but it was sparsely attended and was widely attacked as undemocratic. In 1823, Crawford suffered a stroke. Even though he recovered in 1824, this crippled his bid for the presidency.  Calhoun initially was a serious candidate for the presidency, but he opted instead to seek the Vice Presidency and backed Jackson after seeing the popularity of Crawford in the South. Both Adams' and Jackson's supporters backed Calhoun, giving him an easy majority.  Remember, the 12th Amendment mandated separate voting for President and Vice President, so that made Calhoun a shoo-in for Vice President.

Since no candidate for President received a majority, the 12th Amendment mandated that the election be decided by the House of Representatives among the candidates (Jackson, Adams, and Crawford) receiving top 3 electoral votes.  Clay, who received the 4th highest number of electoral votes, was not among those to be considered.  However, he was Speaker of the House, and so had considerable influence.  Adams' victory shocked Jackson, who expected that, as the winner of a plurality of both the popular and electoral votes, he should have been elected President. When President Adams appointed Clay his Secretary of State, essentially declaring him heir to the Presidency—Adams and his three predecessors had all served as Secretary of State—Jackson and his followers accused Adams and Clay of striking a "corrupt bargain". The Jacksonians would campaign on this claim for the next four years, ultimately leading to Jackson's victory in the Adams-Jackson rematch in 1828.

After John Quincy Adams was defeated (he was so embittered against Jackson that he refused to attend Jackson's inauguration, just as his father, John Adams, refused to attend Jefferson's inauguration in 1801), he ran for Governor of Massachusetts and lost, and then became a representative from Massachusetts from 1831 until his death in 1848.  His character became a cameo role in the Stephen Spielberg movie, Amistad, because he represented the mutineers before the Supreme Court and won their freedom.  Henry Clay, try as he might, never became President but had one of the most distinguished careers in the history of the House of Representatives.  He authored both the Missouri Compromise of 1820 and the Compromise of 1850, attempting to hold North and South together over the question of slavery.  In spite of his efforts, the country was ripped apart by the issue, triggering the Civil War and southern secession after the election of Lincoln in 1860.

Tuesday, November 14, 2006

Roe v Wade - The Inside Story

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Ira Krakow - The United States Constitution - The United States Constitution..

The United States Constitution

Here's a Final Jeopardy Question:  "Who were the only two Supreme Court Justices who were kindergarten classmates?"   The Final Jeopardy Answer:  "Warren Burger and Harry Blackmun".  Both Burger and Blackmun were appointed by President Nixon who, in 1972, campaigned against a woman's right to an abortion.  In Supreme Court history, they were known as the Minnesota Twins, a reference both to the baseball team and the Twin Cities of Minneapolis and St. Paul. Yet, on January 22, 1973, one day after Nixon was inaugurated for his second, and ultimately incomplete, term, the Supreme Court, with Warren Burger as Chief Justice and the majority opinion authored byJustice Harry Blackmun, handed down the historic Roe v. Wade decision, establishing a woman's right to an abortion as a constitutional right.  How did this happen?  The story, many of the details of which were researched by Bob Woodward and Scott Armstrong in their book The Brethren:  Inside the Supreme Court, shows that the 9 justices, far from simply sitting around a table reading law books all day and impartially judging each case based on the Constitution, are, like any 9 colleagues in an office, human beings with varying degrees of ego, intelligence, and jealousy.  The story also brings to light some of the inner workings of the Court - workings that were never thought of by the Constitution's framers but which nevertheless are vital to how the Court arrives at its decisions.

The Supreme Court is a different type of workplace than your typical office.  None of the justices, in theory, get to pick each other.  Instead, according to how the Constitution set the process up, the President nominates each Justice, and he (or she) is confirmed (or not) with the "advice and consent" of the Senate.  The justices who decided Roe v. Wade were nominated by 5 different Presidents - Franklin D. Roosevelt (William O. Douglas), Eisenhower (William Brennan and Potter Stewart), Kennedy (Byron R. White), Johnson (Thurgood Marshall), and Nixon (Burger, Blackmun, Lewis Powell, and William Rehnquist).  Not only were the Presidents different in personality and background, so were there Supreme Court appointees.  The difference, of course, is the the Supreme Court justices are forced to work together, decide on cases which affect all of our lives (sometimes to the point of life and death - a death penalty case in 1972, decided by 5-4, determined whether or not 700 people on death row would live or die), and, on occasion, even show that they act as one harmonious whole.

Sometimes, these petty prejudices and egos become public knowledge.  There is an annual tradition that at the beginning of each term, the justices sit for a photograph.  You've probably seen a few of them - the justices are solemn faced in their black robes, sitting there like high school seniors in a graduation picture.  In 1924, Justice James McReynolds, a racist and anti-semite, refused to sit next to Louis Brandeis, the first Jewish Supreme Court Justice.  By custom, which dictates many of these Supreme Court practices (including things like who gets the coffee), he belonged there on the basis of seniority.  The result:  the 1924 Supreme Court Official Picture shoot was cancelled.  McReynolds also refused to speak to Brandeis for three years following Brandeis's appointment and when Brandeis retired in 1939, did not sign the customary dedicatory letter sent to justices on their retirement.  Yet they still managed to decide critical cases for decades.

The Court that decided Roe v. Wade did not have this type of problem.  However, there was plenty of in-fighting and ego bruising battles.  Nixon appointed Burger in 1969 to succeed Earl Warren, who was perceived as a liberal interventionist, especially in areas like school desegregation and civil rights, as Chief Justice.  Nixon wanted the Court to follow a more conservative, go-slow attitude, especially in civil rights.  This was the era of school busing and integration, real political hot buttons.  Burger was a conservative Minnesota judge.  The Chief Justice, although he has the same one vote as any of the other justices, has a chance to put his (or her, even though there haven't been any woman Chief Justices yet) stamp on the Court.  We tend to think of "the Warren Court", "the Burger Court", "the Rehnquist Court", or "the Roberts Court", even though the composition of the court changes during the Chief's term due to death, retirement, and resignation.

The Chief's influence, however, is greater than any of the other justices.  One example, which is important to our story, is that the Chief gets to select the Justice who writes the majority opinion, if the Chief is in the majority.  However, if the Chief is not in the majority, the senior associate justice (in this case, Justice Douglas),  gets to select the Justice who writes the majority opinion.  The selector can, of course, select himself.  Since the author of the majority opinion gets to shape the law and precedents, this is important.

Appointed in 1969, Burger had only been Chief Justice for a short time.  His kindergarten playmate, Harry Blackmun, was appointed in 1970, a relatively short time compared to, say Justice Douglas who had been on the bench since 1939.  Burger and Blackmun continued their friendship, as they also went to the same elementary school, in Dayton's Bluff, a working class suburb of St. Paul, Minnesota.  Even though they went to different high schools and their law careers sent them their separate ways, they remained in close contact.  Blackmun was best man at Burger's wedding in 1933, for example.  So at the time of Roe v Wade, both Burger and Blackmun still had not placed their stamps on the Court.

How Blackmun came to sit on the Supreme Court is a story inside our story.  Blackmun was hardly Nixon's first choice to replace Justice Abe Fortas, who resigned under a cloud of scandal in 1969.  Fortas, while sitting on the Court, had been receiving a $20,000 a year payment as a consultant for the Wolfson Foundation.  Wolfson had been convicted of securities fraud, serving a year in prison.  When it became public knowledge that Fortas was on the payroll of a convicted felon's foundation, he was forced to resign.

Blackmun was Nixon's third attempt at appointing the replacement for Fortas.  Nixon first nominated Clement Haynsworth,  from Greenville, South Carolina, a judge on the Fourth Circuit Court.  It turned out that Haynsworth had decided on cases in which he had a financial interest, and he had expressed segregationist views.  The Senate, controlled by the Democrats, defeated his nomination, 55-45, with 17 Republicans also voting against him.

Nixon's next nominee was Judge Harold Carswell, from Georgia, a judge on the Fifth Circuit Court.  Nixon, persisting in his southern strategy of hiring judges who wanted to go slow on integration, went a bit too far on this nomination.  It turned out that Carswell had expressed white supremacist views while running for office in Georgia.  He fought against integration of a public golf course in Georgia.  The American Bar Association labeled Carswell "mediocre", which prompted one of his Senate supports, Roman Hruska, to proclaim, "Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they?".  The Senate killed the Carswell nomination, 51-45.  Carswell eventually retired from the bench, unsuccessfully ran as the Republican Senate candidate in Georgia, and was arrested for exposing himself to a boy in a mens room.

After twice being bloodied so badly, Nixon needed a nominee who could pass through without a fight.  Chief Justice Burger, according to Woodward, was also concerned that the prestige of the Court would suffer as well.  Blackmun, Burger's kindergarten playmate,  held steady, conservative views.  Before becoming a judge, Blackmun was the chief lawyer for the Mayo Clinic, the prestigious Minneapolis medical organization.  This would turn out to be important for his Roe v Wade decision.  The background check, done by William Rehnquist, who was then Assistant Attorney General but later became Blackmun's colleague on the Supreme Court, didn't turn up any red flags.  Blackmun, Nixon's third choice, was confirmed unanimously, without incident.

The Roe decision, from the start, was designed to be the signature decision for both Burger and Blackmun.  Who was Jane Roe?  The case originated in Texas in March 1970 at the behest of young attorneys Linda Coffee and Sarah Weddington. Coffee and Weddington filed suit on behalf of Norma L. McCorvey ("Jane Roe") who claimed her pregnancy was the result of rape.  Wade was the Texas Attorney General, responsible for enforcing the Texas abortion law.  Jane Roe is the female equivalent of John Doe, a name used to hide someone's real name.  The appeal process, of course, took a lot longer than McCorvey's pregnancy, and she ended up delivering the baby and surrendering the child for adoption.

This fact brought up a legal issue, relevant to the Supreme Court reviewing the case.  The process, called "granting cert", requires that the appellant (the person making the appeal) have "standing" - i.e., that he or she woould be affected by the decision.  Since by the time the Court had the cert petition, McCorvey had delivered the baby, did she have standing?  In granting cert, the Court reasoned that because of the length of the appeals process, nobody would ever have standing and they could therefore never rule on the underlying abortion issue.  Since they viewed the issue as meriting review, they granted the cert petition.

Roe v Wade was first argued on December 13, 1971.  It was reargued on October 11, 1972.  The decision was handed down on January 22, 1973.  We're talking over a year here.  Blackmun, who was known for his delays in writing opinions, took his time on this one, with extensive drafts and revisions.  His early drafts focused neither on the right of the mother to have an abortion, nor on whether the fetus is a living being, entitled to 14th Amendment protection.  Instead, Blackmun, the former chief lawyer for the Mayo Clinic, focused on the freedom of the doctor to perform abortions.  Blackmun had worked closely with doctors, respected them highly, and wanted to ensure that they could practice medicine to the maximum of their professional skills.  He considered that the Hippocratic Oath forbade abortions, but in practice abortions had been practiced throughout recorded history, from ancient Egypt and Greece to the present.  The relevant sentence in the Hippocatic Oath is:

I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner, I will not give to a woman a pessary to produce abortion

In fact, he spent the summer of 1972 buried in the library of the Mayo Clinic researching this history.   This aspect of the abortion controversy is overlooked today.  States such as Pennsylvania, as I described in my episode about Planned Parenthood v Casey, can pass laws dictating what doctors may or may not say and do in abortion matters.

In later drafts, Blackmun added references to the right of privacy.  He was influenced by Justice Douglas, who had written about the penumbras, i.e., implied rights to privacy, in Griswold v Connecticut, a 1965 case involving a Connecticut contraception law that I discussed earlier.  Douglas wrote the majority opinion in Griswold.  He also was influenced by Justice Brennan, a Catholic who was a strong advocate of privacy rights and who would vote with the majority in Roe.

Blackmun had to come up with a formula that would not allow abortions up to actual birth.  His fellow Twin, the Chief, had said that he would not join Blackmun's opinion if he did that.  Blackmun had to determine at what point the fetus was viable, and at that point a state interest in its life was created.  Blackmun came up with a "trimester" formula, dividing the 9 months of childbirth into 3 3 month periods, which both provided some guidance and dodged the question of when life starts.  In the first trimester, he held, a woman had an unqualified right to an abortion.  In the second trimester, the right to an abortion was still available but states could make laws to protect the health of the mother.  In the third trimester, somehow the rights of the fetus get into play and by some magic the rights of the mother and the fetus had to be balanced.  Abortions could even be prohibited.  Blackmun didn't pretend to make a medical determination of when the fetus is viable, so he used words like "approximately" in his decision.

The 7-2 decision, Blackmun, Burger, Douglas, Brennan, Stewart, Marshall, and Powell in the majority; White and Rehnquist dissenting, was handed down on January 22, 1973.  White and Rehnquist could not find any text in the Constitution that stipulated that a woman had a right to an abortion.  The date is significant.  Nixon, who had run against a woman's right to an abortion, had been inaugurated on January 20, 1973, two days before.  The Chief has some leeway in announcing exactly when a decided case is publicly announced.  Burger, the Chief Justice, ever the political animal, did not want to emabrrass Nixon with the Roe decision coming before Nixon's inauguration, so he delayed the decision date until two days after.

The abortion issue will be revisited in the Court's current session.  The Court has agreed to rule in the Carhart case, in which a Nebraska doctor is challenging the state's ban on so-called "partial birth abortions".  Perhaps the Court will rule definitively on when life begins and how much Blackmun's trimester formula applies.  Perhaps not.

Monday, November 06, 2006

Reapportionment - The Failure of One Person One Vote

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Ira Krakow - The United States Constitution - The United States Constitution..

The United States Constitution

There has been an attempt to correct some of the flaws in the Constitutional system of allowing the states almost total freedom in deciding who is allowed to vote.  I'm referring to the reapportionment movement, the way that each state legislature carves out Congressional districts.  The movement is recent - it dates from the Civil Rights movement of the 1960s - and it involves significant reinterpretation of the Constitution by both the Supreme Court and Congress.  I don't think it's worked too well.

First, some background.  As I wrote in my episode about whether One Person, One Vote is a Constitutional right, according to Article 1, Section 2:

...the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.

Each state legislature gets to carve up its map to draw Congressional districts, as well as for legislative districts, with no Federal oversight.  Each representative is elected within a geographical area called a Congressional district.  Further in Article 1, Section 2, the Constitution states:

The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative;

Currently, there are 435 members of the House of Representatives.  The number of representatives for each state is determined by a census, which is taken every 10 years.  The first census occurred in 1790, and there has been a census every 10 years since.  Every state has at least one representative.  In 1911, Public Law 62-5 set the membership of the US House of Representatives at 433.  When Arizona and New Mexico were admitted to the Union, the number went up to 435, which is what it is today.

The last census occurred in 2000.  Congressional reapportionment occurs in the next year after the census.  The last reapportionment took place in 2001.  By a complicated formula, taking into account that each state gets at least one representative and using the Equal Proportions Method (described here), the result is that, roughly, there is one representative for about 650,000 people.

Of course, none of this applies to the District of Columbia, (Washington, DC, our nation's capital).  Washington, DC, a city of about 550,000, has no Senators nor members of the House of Representatives.  Instead, Congress has the total authority to dictate all laws relating to the District of Columbia.  This is a specific, enumerated, Constitutional power, set up in Article 1, Section 8, which reads that Congress has power:

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;

Washington, DC is governed by the Council of the District of Columbia.  The Council can pass any laws it wants but, as I mentioned before, Congress can veto any of them.  So the residents of our nation's capital are governed by a Congressional dictatorship.  It took a Constitutional amendment (the 23rd Amendment, ratified in 1961) to give the residents of the District of Columbia the right to select electors for President.   If any of the 550,000 people who live in the District of Columbia want representation in Congress or the Senate, they can move to Wyoming (population 509,254, according to the 2000 census).    I believe Dick Cheney is still a Wyoming resident.  Meanwhile, they'll just have to get over it, just as they have since the Founding of our Nation.

Thus, in the year after the census (the year that ends in 1, the last year being 2001), each legislature finds out how many representatives it has and then can redraw its Congressional.  From 1787 to 1962, this redistricting procedure was entirely up to the politicians in each state legislature.  It's been a political process from the beginning.  In fact, the term for prejudicial redistricting, called gerrymandering, originated in the early days of our republic.  I'll quote from the wikipedia article:

Gerrymandering is a controversial form of redistricting in which electoral district or constituency boundaries are manipulated for an electoral advantage. The word "gerrymander" is named for the American politician Elbridge Gerry (July 17, 1744November 23, 1814),[1] and is a combination of his name and the word "salamander," which was used to describe the appearance of a tortuous electoral district Gerry created in order to disadvantage his electoral opponents. "Gerrymander" is used both as a verb meaning "to commit gerrymandering" as well as a noun describing the resulting electoral geography. Ideally, it is pronounced with a hard G, as with Elbridge Gerry's actual name, but the "jerry" pronunciation is now the normal pronunciation [1].

Gerrymandering may be used to advantage or disadvantage particular constituents, such as members of a racial, linguistic, religious or class group, often in the favor of ruling incumbents or a specific political party.

Hey, it started in my state of Massachusetts.  I think there should be a big statue of Elbridge Gerry in front of the State House.   In practice, many state legislatures have been set up to favor rural interests over urban interests.  Did you ever wonder why the capitals of many states are in some backwater town, far away from the largest city or cities in the state?  How about Jefferson City, Missouri (population about 38,000, smaller than not only Kansas City, St. Louis, Joplin, Springfield, Independence, but also a number of suburbs of Kansas City and St. Louis)?  Montpelier, VT, a flyspeck, by Vermont standards, compared with Burlington, Rutland, or Brattleboro?  Pierre, South Dakota?  Springfield, Illinois, compared with Chicago?  Or even Albany, New York, a bit smaller than New York City, Buffalo, Syracuse, or Rochester?

The reason is that rural interests have dominated urban interests in state legislatures. These politicians have drawn the districts to favor the rural voters.  This is yet another aspect of how far from "one person one vote" our electoral system became.

An attempt to change the redistricting process started in the 1960s, as part of the Civil Rights movement.  After all, most of the rural areas in this country are overwhelmingly white.  Blacks tend to live in the larger cities.  There is a racial aspect to the imbalance between rural and urban areas.

Until 1962, the Supreme Court, when it agreed to rule on reapportionment cases, sided with the state legislatures, not touching their authority to do what they wanted.  The Court considered that redistricting was a "political question", best left to the legislatures.  The case of Baker v Carr, which Chief Justice Earl Warren believed was the most important case of his court (even more important than Brown v Board of Education which started the process of ending segregation), changed that.  The facts of Baker v Carr were simple.  A Tennessee Republican, Charles Baker, who lived in Memphis, the largest city in the state, complained that, although the Tennessee Constitution required that the state redistrict every 10 years, the state had not redistricted since 1900, 60 years before.  By the time of the lawsuit, Shelby County, where Memphis is located, had 10 times the population as some of the rural districts of Tennessee.  Thus he claimed that Memphis was underrepresented.  The defendant, Joe Carr, was Secretary of State for Tennessee, responsible for enforcing redistricting law.

One might think this was totally obvious and that the Court should have ruled unanimously and quickly.  However, as I mentioned before, the Court had refused to rule about political questions.    One of the justices, Charles Whitaker, became so physically ill as a result of this case that his tenure as justice was shortened.  He ended up not voting because he was so conflicted about the case.  Justice Felix Frankfurter declared that "courts should not enter this political thicket".  The final 6-2 decision (Warren, Brennan, Black, Douglas, Clark, and Stewart in the majority; Harlan and Frankfurter dissenting) held that the 14th Amendment implied that there was a fundamental "one person one vote" right and that when a case that threatens this right comes before the Court, the Court has a right to rule on it to protect that fundamental freedom.  The word the Court used was "justiciable", which meant that the Court could intervene.  In Baker, the Court remanded the case back to the district court in Tennessee, ordering it to come up with a redistricting plan.

And intervene the Court did.  In 1964, two cases, Reynolds v Sims and Wesberry v Sanders, the Court actually ruled on whether specific redistricting plans in Georgia (legislative districts in Reynolds and Congressional districts in Wesberry) were constitutional.   The Court established that "one person one vote", at least as far as redistricting is concerned, is the law of the land.  The Court was effectively making law even though it was not elected to do that - it's purpose, at least according to the Constitution, was to interpret existing law.

Among the more egregious pre-Reynolds disparities (compiled by Congressman Morris K. Udall):

  • In Connecticut one House district had 191 people; another, 81,000.

  • In New Hampshire one township with three people had a state assemblyman; this was the same representation given another district with 3,244. The vote of a resident of the first township was therefore 108,000 percent more powerful at the Capitol.

  • In Utah the smallest district had 165 people, the largest 32,380 (196 times the population of the other).

  • In Vermont the smallest district had 36 people, the largest 35,000, a ratio of almost 1,000 to 1.

  • Los Angeles County, California; with 6 million people, had one state senator, as did the 14,000 people of one rural county.

  • In Idaho the smallest Senate district had 951 people; the largest, 93,400.

  • Nevada's 17 State senators represented as many as 127,000 or as few as 568 people, a ratio of 224 to 1.

The Voting Rights Act of 1964 was a landmark law that outlawed the poll tax and literacy tests, and additionally required Federal registration of voters in areas that had less than 50% of eligible minority voters registered.  President Bush extended the Voting Rights Act by 25 years in 2006.  It has many complicated provisions.

Nowadays, redistricting cases are a source of full employment for an army of constitutional lawyers.  It's a bipartisan effort - both Democrats and Republicans file these cases depending on whether or not their side will gain or lose.  Has all this established one person one vote on the ground?  Hardly.  If redistricting isn't a political question, I don't know what is.  Here's a recent example:  the Texas legislature redrew the Congressional districts in 2003.  This was no accident.  The Republicans won control of the Texas legislature in 2002 and they wanted to increase the number of Republican seats in Congress.  Some interesting questions - this redistricting occurred not as a result of the census, but as a result of a state election.  If, say, the Democrats win in the next election, can they re-redistrict to increase their Congressional representation?  Texas had, in fact, redistricted in 2001, along with all the other states, as a result of the national census.

Another question - the League of Latin American Citizens charged that one of the districts - district 23 - was gerrymandered along racial lines.  They sued Rick Perry, the governor of Texas.  The case made it to the Supreme Court as League of Latin American Citizens v Perry (2006).  The Court ruled, first, that Texas could redistrict in 2003; and second, that District 23 was unfairly drawn.  To me, this opens the door to a lot of Supreme Court micromanaging of the redistricting process.  By the way, the Republicans did pick up 6 seats in Congress in 2004, partially as a result of the redistricting they did in 2003.     Take a look at your state's Congressional district map.  What kind of animals do you see?

Friday, November 03, 2006

Is "One Person One Vote" A Constitutional Right?

Ira Krakow - The United States Constitution - The United States Constitution

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You might think, because the Constitution begins with the phrase, "We, the People of the United States of America", that the Framers wanted all of our votes to count equally. Nothing could be further from the truth. Those (and these include current justices such as Clarence Thomas and Antonin Scalia) who wish to return to the original intent of the Framers whenever the constitutionality of a law is in question, will necessarily also force a return to the anti-democratic rules embodied in the Constitution.

Are you surprised? The Constitution indeed acknowledges that the people, instead of, say, the king or the nobles, are the source of the political system established by the Constitution. However, we need to examine that system itself in order to see if each person's vote was valued equally. A simple reading of how members of each branch of government (the House of Representatives and the Senate, the President, and the Supreme Court and lower Federal courts) are chosen, will reveal this.

According to Article 1, Section 2:

The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.

The members of the House are chosen by the people, but the only requirement for voters is that they qualify to vote in the same way that the "most numerous branch of the state legislature" qualify. Whatever the state voter qualification laws are - including hanging chads, electronic voting machines that don't count or count backwards, paper ballots, whatever - will work fine. In all states, this limited suffrage to adult white males. White women, native Americans, and slaves could not vote. Additional restrictions could, and did, mean having to own a certain amount of property (slaves count, of course) or to belong to a certain religious group. These were perfectly constitutional. Some states had more inclusive voting rules. In New Jersey, for example, white women were allowed to vote until 1807, when the vote was taken away from them. In four states, free blacks were allowed to vote if they satisfied the property requirements. In any case, we are far from the "one person one vote" principle.

Actually, some adult white male voters counted more than others. Article 1, Clause 3, states in part:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons

"...all other persons" meant slaves. The vote of a southern planter with slaves was worth more than the vote of a free white man without slaves. Call it "one person, 1 + (number of slaves) * 3/5 votes".

The Senate was not directly elected by the people. Article 1, Section 3 states in part:

The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years.

The eligible voters (each state could determine these) voted for state legislators, who in turn voted for the Senators. The Lincoln-Douglas Debates of 1858 were debates between the two candidates for Senator of Illinois. The debates took place in the county seats of each of the Illinois counties. The voters did not vote directly for either Lincoln or Douglas, but rather for state legislators who, presumably, would vote that way. Indirect election of senators in this fashion was the rule until 1913, when the Seventeenth Amendment mandated direct election of Senators.

An additional departure from "one person one vote" derived from the nature of the Senate. With two Senators from each state, a voter from a more populated state such as New York was worth less than a voter from a less populated state such as Rhode Island.

The President was also indirectly elected. The voters voted for electors, not for the Presidential candidate directly. The electoral college consisted of the total number of representatives, plus 2 for the senators. This formula also favored the smaller states somewhat.

The Supreme Court justices are nominated by the President, "by and with the Advice and Consent of the Senate". The voters did not participate in voting for Supreme Court justices.

Those were the guidelines set forth in the Constitution for voters; very far from One Person One Vote. Subsequent amendments extended the voting franchise to freed slaves (15th Amendment, 1870), and to women (19th Amendment, 1919), and to citizens above the age of 18 (26th Amendment). The 13th Amendment, ending slavery, rendered the 3/5 rule null and void. The basic constitutional guidelines for electing members of the 3 branches of government, however, remained.

Suppose you have absolute proof that your vote wasn't counted, for example, that the voter tally in your precinct never was included in the grand total. Can you sue the state? ABSOLUTELY NOT - that's against the Constitution. The 11th Amendment states:

The Judicial powers of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

States have sovereign immunity from lawsuits. The only way a state can be sued by a citizen is if the state waives its sovereign immunity. If your side didn't win the election, and the other side controls the state legislature, good luck trying to get the legislature to allow you to sue.

Voter suppression (not allowing certain groups to vote in the first place) and electoral fraud (not counting the voters who would be unlikely to vote for your side) are as American as applie pie. The most blatant form of voter suppression - the poll tax, used to discourage African-Americans from voting - was outlawed by the 24th Amendment in 1964. The Voting Rights Act of 1965, which President Bush extended for 25 years in 2006, outlawed literacy tests, which were also used in discriminatory ways to discourage voting by African Americans. So the more obvious forms of voter suppression have been outlawed. However, since the voter rolls are still maintained by state and local officials, and there is no recourse for the individual voter, there's plenty of potential for fraud.

Apparently, this tradition will continue come next Tuesday, Election Day. Yesterday, I saw the HBO documentary Hacking Democracy. It's a powerful expose of the security flaws in the voting machines made by Diebold Corporation. Diebold is a prominent contributor to the Bush campaign. It's CEO wrote a letter promising to deliver Ohio to Bush in 2004. This time around, the Congressional races in states like Ohio, Virginia, and Missouri are crucial. The documentary featured a demonstration of how the memory cards in the voting machines, as well as the Microsoft Access database called GEMS, which does the actual vote tally, can be changed without leaving any trace. As a developer of customized databases, I happen to know something about this, since I use SQL databases such as Access every day. Just from looking at the screen shots, I could tell that the tallying software uses Microsoft's ActiveX Data Objects, and an apparently unprotected copy of Microsoft Access. This is a security nightmare. A simple SQL UPDATE statement, such as:

UPDATE vote_totals SET vote_count = 1000000 WHERE candidate like '%KRAKOW%';

could get me a million votes. The hacker also could just change the particular row for the candidate's totals manually. This table editing is the first thing any of the millions of Access users learns. Diebold's voting machines will be used on Tuesday to count the votes in Cleveland, Ohio's largest city, and in many other places critical to the electoral decision.

I'm shocked and scared for our country. I've been duped all my life into believing that my vote counts exactly the same as Antonin Scalia's. I still plan to vote, but afterwards I will stop by at my favorite house of worship and exercise my First Amendment right to the Free Exercise of my religion. I suggest all of you do the same.