Kolohe asks:
If the over/under for new US Constitutional amendments ratified by 2050 is 1.5, do you take the over or the under?
I’ll take the under. If the over/under by 2050 were .5, I’d still take the under. An actuary will tell you that my life expectancy is such that 2050 is getting into the neighborhood of when I can expect to kick it. On this score, then, I expect that I will never see a Twenty-Eighth Amendment. There is simply not enough consensus needed on anyting to reach the supermajority necessary to amend the Constitution, nor any reasonable likelihood of such a supermajority forming.
I hear lots of talk from the right side of the aisle about using the constitution to prohibit same-sex marriage, ban abortions, and so on. But those are partisan ploys and more to the point, they are substantive lawmaking. As far as I can tell, this is big talk intended to use the Supreme Court as a whipping boy for fundraising purposes, and even the proponents of these policy positions aren’t particularly serious about them but rather are rhetorically venting the white-hot passion for the righteousness of their positions.
The only foreseeable amendment I can even conceive of as having a realistic chance of even making it to the floor of Congress for debate is repealing the Electoral College and selecting future Presidents with a first-past-the-post popular vote. And that won’t pass because every time such a proposal is made, the question will be “Will this advantage the Republicans or the Democrats?” and then the party that thinks it’ll be on the losing end of that equation will oppose it, and each party controls about 40% of the electorate, and therefore enough votes in Congress and in state legislatures to block an amendment.
Oh, I suppose something amazing or awful might happen between now and then. One or the other party might break up. We might all realize that we’re all Americans and hold hands and sing a song together while amending the Constitution to elimiante filibusters or something. We might go to war and need to change things. But based on what I can see, what I can predict, I’ll have died (hopefully of old age) before the Constitution is ever amended again.
Clearly someone doesn’t expect a zombie outbreak in his lifetime.
I think things may change faster then we realize due to attrition of the Senior Set and early end of the baby boomers over the next two decades.
Of course, that means I’m not likely to witness more then the beginning of the change, statistically, I’ve only got 24 years left.
Three-quarters of the states remains a daunting hurdle. Pick a topic of any significance and there is likely a group of states around which opposition for an amendment can form. Rural states. Urban states. Small-population states. Resource-rich and resource-poor states. States whose regional identity is strong enough — eg, the South. I think there are a number of issues which are going to make the West a more cohesive region within a decade or two.
The SS actuarial tables think I’ve got about 25 years left. I don’t expect to see another amendment in that period. For the 25 years after that, I’m out on the lunatic fringe: I think we’re likely to see a successful peaceful separation of the country into at least two parts during that interval.
It looked like the Equal Rights Amendment was going to pass for awhile there, and I thought it was a good idea at the time. Reading back through the thing, I’m not so sure.
Nearly half of all cases at the federal level are Title VII (employment) claims. This is one of the most popular types of cases for pro se litigants. Recent actions curtailing various aspect of Title VII claims are fully consistent with the actions of the courts; notably in the PLRA.
The Prisoner Litigation Reform Act sharply reduced the number of section 1983 actions from federal inmates (which still make up about a quarter of all claims in the federal courts). There were a few big changes, but one of the biggest was the requirement that all administrative remedies be exhausted.
The impression that I get is that the federal courts largely feel overworked, and are eager to dismiss claims whenever they can.
I’m not so sure the the ERA would have been able to convert Title VII claims into section 1983 claims, due to the requirement that 1983 actions are precluded where Congress has provided a comprehensive enforcement scheme. That one is used in a lot of odd ways.
In that way, the restrictions on Title VII claims were successful toward the ends of the ERA; that by sharply reducing the period of time in which anyone might bring a claim, the rights of all are sharply reduced across the board, resulting in greater equality.
If we were to renew and pass the ERA, why should Title VII claims decline at all? Enacting ERA wouldn’t repeal Title VII and Title VII would probably be determined to be a comprehensive enforcement scheme and consistent with the Congressional enforcement power clause of the new amendment.
I hadn’t ever really thought about it in these terms before, but it seems as though the relative robustness of Title VII is a reason why there is no particular imperative to pass ERA now.
That’s kinda what I’m saying. Maybe I wasn’t so clear.
The big restriction on Title VII (iirc) is the limitations period.
I was reading about this the other day, and there’s a way to bring the claim by pleading two causes of action, in case the one is dismissed. Don’t remember what the other cause of action was.
The other one that has a really ridiculous limitations rules (that I can think of) is extortion; 4 yrs for civil, 5 for criminal, accruing from the first act. It’s the accrual part that makes it ridiculous. If a person has been the victim of extortion for 10 yrs, there’s nothing unlawful in its continuation.
But similar to both instances, by that length of time, there may well be other causes to plead; unjust enrichment, tortious interference, breach of fiduciary duty, or something of the like.
Just thinking about it from that angle, I think the decision in Monell v. Dept. of Social Services had a big influence. This was an employment claim; a class action suit against the NYC Board of Education for a forced maternity leave policy.
Monell is an oft-cited seminal case in section 1983 jurisprudence, but where you’ll hear it mentioned most often is in municipal and state liability. IIRC, this was the first time a municipality was held liable for damages (still immune from punitive damages though), and also the state (but only for declaratory & injunctive relief).
Basically stated, all through the 1970’s, there was a lot of corruption in the NYPD (think Serpico). The District Courts in New York went out of their way to bend over backwards to ensure that the City would never be found liable (and this is one big reason that section 1983 jurisprudence is so screwed up today). They were happy to throw the cops (i.e., individual police officers) under the bus. When it came time to throw the pregnant women under the bus, they had some second thoughts about it.
Interesting to note that section 1983 can still be used for an employment claim though. I had forgotten about that.
I agree with you; but besides an Electoral College shake up, I could see an amendment that alters the clause covering exclusive jurisdiction over DC, to lead the way for statehood. (I see this more likely than an EC shakeup, actually)
As long as DC is a one-party jurisdiction, I do not see this happening. The Electoral College, on the other hand, can benefit or hurt both parties. Had Kerry won Ohio in 2004, I think we may have really seen something with both parties having been burned over a four year period. Alternately, if the Republicans get burned a couple times, I could see it happening because I think that liberal/Democratic support of it is genuine enough to withstand the convenience. Republican support is genuine enough to sustain a single election, but not two.
The current political coalitions that comprise both parties won’t last till 2050. The demographic trends that we’ve seen over the last decade or so will continue, aided by the transformation of transportation economics.
Which means that it is likely that DC won’t necessarily remain a one-party city.
Or even if DC remains a one party city it is possible that nationally the US lapses into one of its temporary one party ‘era of good feelings’ periods that aligns everything up too.
In contrast I can see the minority political party always objecting to a dissolution of the Electoral College (in the same way everyone loves/hates the filibuster until they don’t) , but if we do go to (temporary) single party status, not bothering to change the rules
I agree!
I disagree. I think that there are changes in store, but DC will remain reasonably close to a staunch voting block. If it makes a transition from staunchly Democratic to staunchly Republican (unlikely, but if…) there may be a window of competitiveness, but I think it’s unlikely.
I foresee three possible “new Republican coalitions” (and hence Democratic ones), but none of them really involve the voting demographics of DC. That’s my take, anyway.
Now, on the electoral college, I think there are two reasons why it could go the way of the do-do. First, because it doesn’t consistently help one party or the other. There is a theoretical Republican advantage due to the small states, but that is undone by the vote totals being run-up in select states. Which brings me to #2, right now it favors the party that is predisposed to oppose it and hurts the party that is predisposed to support it.
So there is a sliver of a chance. Just a sliver, but I think that’s more than exists for DC statehood.
I may not be giving the “era of good feelings” notion enough credit, though. And it’s actually entirely possible that the two could be part of a compromise. Republicans win the popular vote a couple times and lose the electoral college, Democrats agree in exchange for two more virtually guaranteed senate seats and a house seat.
this map: http://farm5.static.flickr.com/4075/5009088426_35f919ceab.jpg
The green areas are growing in population (and moving into the blue areas) and are part of a hypothetical neo-Republican party that has made its peace with the culture war (through losing it).
Burt,
What is the practical difference, in outcome, of passing a bill versus passing an amendment? The obvious one is the ease (or lack thereof) of appeal.
For instance, would there be any practical benefit to pursuing an amendment along the lines of the ADA?
I’m with you on the under for 0.5 by 2050.
I’ll take the over. I think eventually the dam will break. Electoral College dissolution and DC statehood seem like no brainers to me. We’re probably overdue for something procedural too, although I can’t really think of anything. The failure of the ERA probably means sexual orientation is off the table, but it might not be. The Supreme Court will likely end up reading it into the 14th anyway.
2050 is a long way off, and most of the problem children (i.e., the Boomers) will be dead by then. For whatever reason, people are still not really facing up to the demographic and cultural bomb that’s going off.
It makes no sense to have a Constitutional amendment for sexual orientation.
18 USC 245 is a much more fitting place for such measures, but I don’t see it as likely.
Without some procedural burden-shifting, I don’t see it as particularly effectual either.