Ted Cruz, William Marbury and American Democracy

            John Marshall, Chief Justice of the Supreme Court in 1802, had a problem.

           William Marbury wanted the newly installed Jefferson administration to deliver a document enabling him to start a job to which former President John Adams had appointed him.

            Under the Judiciary Act of 1789, Congress gave the Court the power to issue orders to government officials requiring them to perform official actions required by law.  In Marshall’s view, Marbury was entitled to the document.

            Marshall believed that Jefferson was unlikely to comply with any such order. Were Jefferson to ignore Marshall’s order, Marshall worried, the Court would suffer a humiliation that could set a precedent emasculating the Court as an institution. 

            What to do?

            Marshall ruled that the Judiciary Act of 1789 was an unconstitutional attempt to expand the Court’s original jurisdiction, and accordingly the Court could not give it any force or effect. Without jurisdiction, the Court could not give Marbury the order he requested. 

            Though Marbury didn’t get his order, Marshall was able to use the case to establish the precedent of “judicial review,” which gives the Supreme Court the power to “say what the law is.”  The decision was an important legal innovation because the Constitution doesn’t explicitly give the Supreme Court the power to invalidate the actions of Congress or the President.

            Ever since, Americans have looked to the Supreme Court to tell them what the Constitution means.  And that, in a democracy, can be a real problem.

            Under our Constitution, Supreme Court Justices hold lifetime appointments.  They never have to face the voters or take any electoral responsibility for their decisions.

            Which brings us to Ted Cruz.  Cruz has been surging in the Iowa polls, and frontrunner Donald Trump has taken to insinuating that Cruz, who was born in Canada to an American citizen, is not a “natural born citizen” of the United States and is therefore Constitutionally ineligible to be elected President.

            The Supreme Court has never has defined the phrase “natural born citizen,” and so its meaning is still an open question.  As Trump points out, even if the Court were eventually to rule that a person like Cruz is a “natural born citizen,” it could take a long time for the case to work its way up to the Supreme Court.  A Republican ticket with Cruz on it could face an unpleasant surprise just before the November election.

            The Constitutional lawyers are having a field day.  I’ve seen well reasoned arguments holding that Cruz is eligible to be president and equally well reasoned arguments holding that he isn’t.  If the question depends on what the Framers of the Constitution or the people who ratified it meant by that phrase, the truth is that we’ll never know for sure. 

            That’s why it doesn’t make sense to let the Supreme Court give us the answer.  There are only nine Supreme Court justices, and it’s possible that five will have one answer to the question while four would have another.  If that were to happen, five politically unaccountable judges could prevent a candidate acceptable to a large swath of the public from becoming President.  That's simply not democratic.

            The better way to answer the question is to leave it up to the American people.  Whether Cruz could become president was a major issue at the last Republican debate, and there’s little doubt that if he is nominated for President or Vice President almost every voter will know about his nativity by the general election   If enough voters decide that Cruz is “natural born” enough to be President or Vice President and vote for him, that should decide the matter.

            Of course there would be arguments about legitimacy if we left the matter up to the democratic process.  Constitutional provisions , after all, are rules, and playing by them is part of what makes a democratic outcome legitimate.  Yet, here, the rules are not so clear, and legitimacy issues also arise when five unelected and unaccountable Supreme Court justices substitute their judgment for what may be the will of a political majority.

            Not all constitutional decisions can be left up to the people.  Supreme Court action is the best way to resolve controversies that pit state actions against federal actions. And the civil rights and civil liberties of political minorities can only be protected by institutions like the Supreme Court that are not accountable to political majorities.

            After his ruling in Marbury’s case, Marshall, who presided over the court for three decades, never again invoked judicial review.  Instead, he properly made a point of relying on democratic practices to resolve constitutional disputes.  And that’s exactly what we should do here.

A Tale of Two Pictures

           You need a thick skin if you want to be a politician in America.  Everything about you, your family and your friends is fair game.  American politics is a contact sport, and if you can’t live with being cursed at, insulted or mocked, you best find something else to do with your life.  This is as it should be, and, unfortunately it is also nothing new.

            But this image goes too far.  I’ve seen two versions of it.  The first version I found on Facebook.  One of my conservative friends found it and posted it on her timeline.  The second 

version I saw uses the same caption but a different photo.

            I don’t know who took the picture or who wrote the copy.  It could have been some disgruntled Republican troll, a disgruntled Bernie troll (yes, they exist), or, perhaps more worrisome, a professional operating a political campaign or a super PAC.

            I’m not offended because of any connection with or affinity for Hillary Clinton.  What bothers me about it is something deeper than who I might want people to vote for in the Democratic primaries.

            To understand what troubles me about the image, compare it to this similar photo that I don’t believe crosses the line.

            The second photo is arguing that Hillary Clinton is a Nazi.  Whoever posted this probably doesn’t know what a Nazi is and apparently can’t distinguish a regime that rounded up millions of people and converted them into piles of ash from a presidential candidate who is determined to fight for a portfolio of policies with which the person who created this picture disagrees.  The original poster probably just thought he or she was being funny in a snarky kind of way.

            While I think the second photo is in bad taste and draws incorrect historical parallels, I’m not offended by it.  Americans have been insulting politicians and warning about their potential for tyranny for as long as there’s been an America.  It’s up to us as voters to decide whether arguments like this one tries to make are worth entertaining.  American politics just wouldn’t be American politics without a loud, boisterous and spirited debate regarding who ought to be entrusted with state power.

            The difference between the first photo and the second one is that in the second one, the attack is directed at Hillary Clinton.  In the first one, the attack is directed at Clinton’s supporters.

            This is a crucial distinction.   Clinton’s supporters and her opponents can have a spirited debate about whether Clinton is a Nazi just aching to take on Adolph Hitler’s mantle.  No one on one side of the debate may be persuaded that the arguments being advanced on the other side of the debate have any merit, and all of the debaters may leave the forum exactly where they were when they entered it.  But at least the debate could take place at all.

            For the first photo though, there cannot be a debate.  The copy makes it clear that any discussion about Clinton is pointless because her supporters are “idiots.”  By definition, anything an “idiot” says is nonsense and not entitled to serious or civil consideration.  Nobody gets to discuss Clinton’s ideas because the focus is on her supporters.

            It may fair comment to say that people who think that Clinton is a Nazi may also think that her supporters are nuts for wanting her to become the next president. But the proposition the second photo makes doesn’t immediately shut down discussion; their argument is focused on what Clinton could or would do as president.  It still allows for the possibility that Clinton’s supporters are reasonable people who could react positively to a good argument.  The first photo does not.

            And this is part of what is ruining American politics.  For some segments of our population, political campaigns are not about ideas or policies.  Ideas and policies are beside the point.  What’s important to that segment of the population is which side wins and can lord it over the losers.

            In this view of the world, we are not “fellow Americans.”  We are tribe members or fraternity brothers who value solidarity with and the success of our group over the welfare of all of the tribes or fraternities with whom we share this country.  Part of the strategy used toward this end is to divide the world up into separate camps where it is easy to distinguish the smart, positive reasonable “us” from the stupid, negative and unreasonable “them.”

            You simply can’t run a country this way.  We can’t have a democracy if we are determined to see people who disagree with us as adversaries to be disregarded, disrespected and defeated.  Democracy presupposes a certain degree of good sportsmanship in which all sides compete ferociously, but, once the competition ends, we shake hands and accept the result until the next election.

            Hillary Clinton’s supporters are not idiots.  And neither, by the way is my friend, a Trump supporter, who had the good grace to take the photo off of her timeline when she saw that it upset me.  It’s that good grace American politics sorely needs.

The Laws of Politics

            Mark Schmitt of the New America Foundation argued last week that the laws of politics as we know them have broken down.  The biggest casualty, he says, is the “median voter theorem” which holds that politicians will calibrate their actions to win the vote of the median voter.  He observes that politicians are no longer doing constituent service or seeking earmarked spending projects in their districts they way they did in the past.

            The median voter theorem is not dead.  It’s just that most of us in the poli-sci biz learned it before our professors understood that we were living in special times.

            Consider Figure 1 that describes a society where opinion is normally distributed along an ideological continuum that runs from extremely liberal to

Figure 1

extremely conservative.  The fattest part of the curve, where most of the voters are, is at about 5.  Suppose one politician portrays his or her own ideology and portfolio of policies as being somewhere close to 6 while the other sets up shop at 3.  Voters who are at positions 0 through 4.5 will vote for the candidate at 3, but everyone else will vote for the candidate at 6 because they are ideologically closer to 6 from every point greater than 4.5.

            In a world where public opinion is normally distributed as in Figure 1, it is rational for politicians to try to position themselves as close to the median—which also happens to be the midpoint of the ideological continuum--as they can.  When they do that, we end up electing a lot of moderates.

            But this is not the world we have.

            Nothing requires the distribution of opinion to be centered on 5, the midpoint between liberalism and conservatism.  Suppose the curve shifts to the right so that the median is 6.  Candidates from the liberal party can still compete, but their views will have to be more conservative than the average national liberal party candidate to capture the vote of the median voter.  

            What happens if the curve shifts to right so that the median is 8? Or, suppose instead that we have a community with a bimodal distribution of opinion as in Figure 2 or Figure 3?  The median voter theorem still works, but it doesn’t predict the election of centrists.

Figure 2

Figure 3

            If we have public opinion distributed normally, but centered on position 8, a rational candidate will aim to be strongly conservative.  There is no benefit to any candidate to try to moderate his or her positions so as to win some left-leaning voters.  There just aren’t that many lefties to win, and moderating one’s position could set up a challenge from the right.  All of the meaningful competition is going to take place on the right side of the scale.  Conservatives are going to win the election and it barely makes sense for a liberal to compete.

            If we have a community with public opinion distributed as in Figure 2, a rational conservative politician should try to take up a position close to 8; a liberal will want to be close to 2.  Both of these politicians will look like extremists to people on the opposite side of the scale.  There aren’t any voters at the midpoint of the scale, and so it’s irrational to come across as a centrist. The winner of an election in this kind of a community will be the politician who best mobilizes his or her base.

            In communities characterized by Figure 3, the winner is going to be the politician closest to 8. The rational politician here is going to ignore anyone to the left of position 5.

            The America of 2016 is not the America of the 40s, 50s 60s or 70s.  Over the last 40 years, Americans have been moving to communities that are much more politically homogenous than ever before.  It’s now far more likely for communities to resemble the communities described by Figures 2 or 3 or to be shifted versions of Figure 1 than it is for them to have normally distributed opinion centered on the midpoint of the liberal/conservative continuum.

            This is why Schmitt thinks the old rules don’t work.  He’s mistaken.  Politicians are still trying to position themselves close to a median voter, but because our communities are more ideologically homogenous, the median voter no longer occupies a place near the center of the ideological continuum.

            And that’s why politicians can get away with saying and doing things they couldn’t get away with before.  It’s also why politicians don’t have to compromise, reach across the aisle, pursue pork barrel projects or even seek benefits for constituents who may make up a substantial portion of the electorate but aren’t part of the politician’s electoral coalition.  Even unpopular politicians such as Sam Brownback of Kansas and Paul LePage of Maine, two wildly unpopular governors, could win re-election: they simply stood closer to the median voter in an electoral coalition than did their opponents.  When politicians don’t face serious electoral challenges from across the ideological divide, there is no reason to make overtures to the other side or even acknowledge it at all.

            Politics is not physics, and the laws of politics are not as immutable as they might be in the hard sciences.  But even Isaac Newton’s universal laws of gravitation had to give way when Einstein realized that they were but a special case of general relativity applicable to the world in particular ways and under particular circumstances.
            That's why the median voter theorem still lives.