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    How can the candidate with most votes lose? The US electoral college explained

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    Even though the United States touts its status as one of the world’s leading democracies, its citizens do not get to directly choose the president. That task is reserved for the electoral college – the convoluted way in which Americans have selected their president since the 18th century.Contrary to its name, the electoral college is more a process than a body. Every four years, in the December following an election, its members – politicians and largely unknown party loyalists – meet in all 50 states on the same day and cast their votes for president. Then they essentially disappear.In recent years there has been growing criticism of the electoral college, accelerated by the fact that two Republican presidents – George W Bush in 2000 and Donald Trump in 2016 – have been elected president while losing the popular vote. But there’s no sign that US elections will change any time soon.Here’s everything you need to knowWhat exactly is the electoral college?Article II of the US constitution lays out the process by which a president is elected.Each state has a number of electors that’s equal to the total number of representatives and senators it has in Congress. Washington DC gets three electoral votes. In total, there are 538 electors. A candidate needs the votes of 270 of them, a simple majority, to win.The constitution says that state legislatures can choose how they want to award their electors. All but two states have long chosen to use a winner-take-all system – the winner of the popular vote in their state gets all of the electoral votes.To complicate matters further, two states, Maine and Nebraska, award their electors differently. In both states, two electoral college votes are allocated to the statewide winner. Each state then awards its remaining electors – two in Maine and three in Nebraska – to the winner in each of the state’s congressional districts.Why does the US have an electoral college?When the founding fathers gathered in Philadelphia to draft the US constitution in 1787, they had a lot of trouble figuring out a system for choosing a chief executive. Initially, they proposed a plan that would have Congress choose the president. But that led to concerns that the executive branch, designed to be independent from Congress, would be subject to it.A contingent of the delegates also favored electing the president through a direct popular vote. But the idea never got broad support and was shut down repeatedly during the convention, the historian Alexander Keyssar wrote in his book Why do we still have the electoral college.There were a number of reasons the idea was not widely popular. First, the convention had adopted the racist three-fifths compromise in which slaves were counted as three-fifths of a person for population purposes. This was a win for the southern states, in which slaves made up a sizable chunk of the population. A popular vote system would have disadvantaged the southern states because they had fewer people who could vote.There were also concerns about giving too much power to larger states and that voters would be unable to learn about the candidates from different states, according to Keyssar. It was a debate driven more about pragmatics than about political rights, he writes.Towards the end of the convention, a committee of 11 delegates was appointed to deal with unresolved matters and one of them was how to select the president. They proposed a version of what we have now come to understand as the electoral college.“This brief nativity story makes clear that the presidential election system enshrined in the Constitution embodied a web of compromises, spawned by months of debate among men who disagreed with one another and were uncertain about the best way to proceed,” Keyssar wrote. “It was, in effect, a consensus second choice, made acceptable, in part, by the remarkably complex details of the electoral process, details that themselves constituted compromises among, or gestures toward, particular constituencies and convictions.”What is a swing state?States that either presidential candidate has a good shot at winning are often called “swing states”.In the 2024 election, there are seven swing states: Pennsylvania (19 electoral votes), Wisconsin (10 electoral votes), Michigan (15 electoral votes), Georgia (16 electoral votes), North Carolina (16 electoral votes), Arizona (11 electoral votes), and Nevada (six electoral votes). Whichever candidate wins the election must carry some combination of those states, which is why the candidates will spend the majority of their time and resources there. Joe Biden carried all of those states bar North Carolina in the 2020 election.The idea of a swing state can also change over time because of changing demographics. Until recently, for example, Ohio and Florida were considered swing states, but they are now considered pretty solidly Republican. Michigan was considered a pretty solid Democratic stronghold until Donald Trump won it in 2016.Does the electoral college allow for minority rule?There have been five elections in US history – in 1824, 1876, 1888, 2000 and 2016 – in which the candidate who became the president did not win the popular vote. This has led to wider recognition of imbalances in the system and a push from some to abolish the electoral college altogether.The loudest criticism is that it’s a system that dilutes the influence of a presidential vote depending on where one lives. A single elector in California represents more than 726,000 people. In Wyoming, an elector represents a little more than 194,000 people.Another critique is that the system allows a tiny number of Americans to determine the outcome of the presidential election. In 2020, about 44,000 votes between Wisconsin, Georgia and Arizona allowed Biden to win the electoral college. Such a slim margin is extraordinary in an election that 154.6 million people voted in.In 2016, about 80,000 combined votes gave Trump his winning margins in key swing states.Do electors have to vote for a specific candidate?State political parties choose people to serve as electors who they believe are party stalwarts and will not go rogue and cast a vote for anyone other than the party’s nominee. Still, electors have occasionally cast their votes for someone else. In 2016, for example, there were seven electors who voted for candidates other than the ones they were pledged to. That was the first time there was a faithless elector since 1972, according to the National Conference of State Legislatures.Many states have laws that require electors to vote for the candidate they are pledged to. In 1952, the US supreme court said that states could compel electors to vote for the party’s nominee. And in 2020, the court said that states could penalize electors who don’t vote for the candidate they’re pledged to.How has the electoral college remained in place for so long?Since almost immediately after the electoral college was enacted, there have been efforts to change it. “There were constitutional amendments that were being promoted within a little more than a decade after the constitution was ratified,” Keyssar said. “There have been probably 1,000 or more constitutional amendments to change it or get rid of it filed since 1800. Some of them have some close.” (There were more than 700 efforts as recently as 2019, according to the Congressional Research Service.)When the idea of a national popular vote was proposed in 1816, Keyssar said, southern states objected. Slaves continued to give them power in the electoral college, but could not vote. “They would lose that extra bonus they got on behalf of their slaves,” he said.After the civil war, African Americans were legally entitled to vote, but southern states continued to suppress them from casting ballots. A national popular vote would have diminished their influence on the overall outcome, so they continued to support the electoral college system.The country did get close to abolishing the electoral college once, in the late 1960s. In 1968, George Wallace, the southern segregationist governor, almost threw the system into chaos by nearly getting enough votes to deny any candidate a majority in the electoral college. The US House passed the proposed amendment 339 to 70. But the measure stalled in the Senate, where senators representing southern states filibustered.That led to continued objections to a national popular vote so that southern white people could continue to wield power, according to the Washington Post. President Jimmy Carter eventually endorsed the proposal, but it failed to get enough votes in the Senate in 1979 (Joe Biden was one of the senators who voted against it).“It’s not like we are suddenly discovering this system really doesn’t work,” Keyssar said.Is there any chance of getting rid of the electoral college now?The most prominent effort to get rid of the electoral college today is the National Popular Vote Interstate Compact. The idea is to get states to agree to award their electors to the winner of the national popular vote, regardless of the outcome in their specific state. The compact would take effect when states having a total of 270 electoral votes – enough to determine the winner of the election – join.So far 16 states and Washington DC – a total of 205 electoral votes – have joined the effort.But the path ahead for the project is uncertain. Nearly all of the states that haven’t joined have either a Republican governor or legislature. And legal observers have questioned whether such an arrangement is constitutional – something that would probably be quickly put to the US supreme court. More

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      Judge slaps down Florida effort to ban abortion ad: ‘It’s the first amendment, stupid’

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      Florida’s health department can’t block a TV advertisement in support of a ballot measure that would protect abortion rights, a federal judge ruled on Thursday, after the department sent letters to local TV stations commanding them to stop airing the ad or risk criminal consequences.“The government cannot excuse its indirect censorship of political speech simply by declaring the disfavored speech is ‘false’,” US district judge Mark E Walker wrote in his ruling. “To keep it simple for the State of Florida: it’s the First Amendment, stupid.”Florida is one of 10 states set to vote on abortion-related ballot measures in November. If enacted, Florida’s measure would enshrine abortion rights into the state constitution and roll back the state’s six-week ban on the procedure, which took effect in May.Earlier this month, Florida’s health department sent cease-and-desist letters to TV stations running an ad by Floridians Protecting Freedom, the campaign behind the measure. In the ad, a woman named Caroline speaks about being diagnosed with cancer while pregnant.“The doctors knew if I did not end my pregnancy, I would lose my baby, I would lose my life and my daughter would lose her mom,” Caroline says in the ad. “Florida has now banned abortion even in cases like mine.”The letters said the claim that women can’t get life-saving abortions in Florida was “categorically false”, since Florida’s ban permits abortions in medical emergencies. “The fact is these ads are unequivocally false and detrimental to public health in Florida,” Jae Williams, the Florida department of health communications director, said in an email late on Thursday.However, doctors across the country have said abortion bans are worded so vaguely as to force them to deny people medically necessary abortions. A New York doctor recently said that she had treated a woman with an ectopic pregnancy – which is nonviable and potentially life-threatening if left untreated – who had been turned away from a Florida hospital.In response to the letters, Floridians Protecting Freedom sued the Florida surgeon general, Joseph Ladapo, and John Wilson, the former general counsel for the state health department. At least one TV station stopped airing the ad, the coalition’s lawsuit alleged.On Thursday, Walker granted a temporary restraining order blocking Ladapo from taking any further action against broadcasters or other media outlets that might air ads by Floridians Protecting Freedom.skip past newsletter promotionafter newsletter promotion“Of course, the surgeon general of Florida has the right to advocate for his own position on a ballot measure,” Walker wrote. “But it would subvert the rule of law to permit the state to transform its own advocacy into the direct suppression of protected political speech.”Over the last several weeks, Florida’s government, run by Ron DeSantis, the Republican governor, has sent law enforcement officials to investigate people who signed a petition to get the measure on the ballot, set up a webpage urging people not to vote for it, and issued a report suggesting the measure got on the ballot due to “a large number of forged signatures or fraudulent petitions”. Floridians Protecting Freedom has denied wrongdoing.Anti-abortion activists have since filed a lawsuit to remove the measure from the ballot or nullify votes cast for it. More

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      The electoral college has become a gun held to the head of US democracy | Lawrence Douglas

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      These are not easy days for supporters of American democracy. But what twists my innards is not the prospect that in three weeks’ time, the majority of voters could hand the reins of power to a vengeful authoritarian demagogue. Instead, I’m sickened by the prospect that the electoral college can do that for us – that Kamala Harris could win the national popular vote, but come up short where it counts.We know the popular vote winner has already twice lost in this young century, in 2000 and again in 2016. But few realize how narrowly we missed a catastrophic result in 2020 when Biden won the national popular vote by a substantial margin – over 7 million votes. In every other democratic nation, such a result would have settled matters. Not in the US. Biden’s margin of victory in three key swing states – Arizona, Georgia and Wisconsin – was razor thin, with fewer than 44,000 votes combined.It was no accident that Trump trained his efforts – the stuff of outstanding state and federal indictments – to overturn Biden’s victory in these three states. Had Trump succeeded in pressuring Georgia’s Republican secretary of state, Brad Raffensperger, to “find” the votes necessary to overcome Biden’s state lead, had he succeeded in submitting bogus slates of electoral college votes from Arizona and Wisconsin, he could have recaptured the White House.Now, once again, our nation is held hostage to our manifestly defective means of electing the president. How did we arrive at this perilous point? The drafters of the constitution, exhausted by long days of toil in Philadelphia’s steamy Independence Hall in the summer of 1787, settled on the electoral college in something of an afterthought. Unable to decide between letting Congress elect the president or giving full power to the people, they ended up retrofitting a device used by the Holy Roman Empire to “elect” monarchs and emperors. By letting every state legislature choose a body of electors (equal to the state’s representation in Congress), the system was meant to find citizens of public standing capable of wisely choosing a chief executive.Almost from the get-go, the system did not function as designed. With the rise of parties, states realized they could best leverage their power over the national outcome by awarding all their electoral college votes to the statewide winner of the popular vote – the system we have now. (By defeating Al Gore by 537 votes in Florida, George W Bush captured all of the citrus state’s electoral college votes and, with them, the White House.)Those who nowadays defend the electoral college as a device designed to make sure the presidency isn’t always captured by “coastal elites” are offering a justification that has nothing to do with college’s original logic and ignoring the fact that the vast number of American citizens live in coastal states. An electoral system that awarded four votes to citizens of Wyoming and a single vote to citizens of California would be dismissed as a transparent violation of the constitutional principle of “one person, one vote”. And yet this is exactly what the electoral college does.Worse still is how the electoral college dramatically magnifies the vote of citizens in a handful of swing states. Tens of millions of voters in non-competitive states are essentially disenfranchised. Kamala Harris presently enjoys a 24-point lead over Donald Trump in California. Votes for Trump in California count, then, for nothing, while all votes for Harris over the bare majority needed to win are utterly wasted. In the key swing states, things look very different.The entire election will turn on what happens in seven states: Pennsylvania, Michigan, North Carolina, Georgia, Wisconsin, Nevada and Arizona. Voters in the remaining 43 states are reduced to the role of spectator. And so we’re left holding our breath, wondering whether American democracy will survive based on whether Arab Americans in Michigan feel betrayed by the Democratic party or whether Black men in Detroit, Milwaukee and Philadelphia will vote in sufficient numbers for Harris.A system that permits a national election to turn on the outcome in a handful of counties in a handful of states is tailor-made for a candidate intent on sowing electoral chaos. When Trump incited a mob to attack the Capitol on 6 January 2021, his effort to remain in power had already failed. Every state (and the District of Columbia) had already certified its result, thanks to the honest and tireless efforts of election officials of both parties. The insurrection simply promised to delay the inevitable.This time around, the Maga team knows better. This time, it will devote its efforts to monkeying with the state count. They have already succeeded in inserting a substantial number of Trump loyalists into key positions within the election infrastructure of the swing states. It doesn’t take much to muddy the outcome of a close state contest by targeting specific counties – especially when Trump has primed his supporters to reject any result that doesn’t result in his victory.Given the dangers and dysfunctions of the electoral college, it is unsurprising that since 1816 there have been over 700 proposed amendments to reform or simply abolish the system. And yet all have foundered on the constitution’s arduous amendment process, which throughout our history has frustrated vitally needed constitutional change and now leaves us stuck with an electoral process that no one would seriously consider if tasked with designing a fresh system.And so we face the ominous prospect that this defect of constitutional design may – against the wishes of the majority of American people – deliver a result that tolls the end of liberal democracy in America. Sickening.

      Lawrence Douglas is the author, most recently, of Will He Go? Trump and the Looming Election Meltdown in 2020. He is a contributing opinion writer for the Guardian US and teaches at Amherst College More

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      David Brock on Clarence Thomas and supreme court hijack: ‘The original sin’

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      Thirty years ago, David Brock made his name as a reporter with The Real Anita Hill, a book attacking the woman who accused Clarence Thomas, George HW Bush’s second supreme court nominee, of sexual harassment. After tempestuous hearings, Thomas was confirmed. Brock – who memorably characterized Hill, a law professor, in sexist terms as “a little bit nutty and a little bit slutty” – was launched as a rightwing media star.Thirty years on, Thomas still sits on the court, the longest-serving hardliner on a bench tilted 6-3 to the right by three confirmations under Donald Trump. But Brock switched sides long ago, disillusioned by rightwing lies. He apologized for smearing Hill and eventually became a prominent Democratic operative, close to Bill and Hillary Clinton.He founded watchdogs and Super Pacs and kept on writing books. He dealt with his political conversion 20 years ago in Blinded by the Right: the Conscience of an Ex-Conservative. Now, with Stench: The Making of the Thomas Court and the Unmaking of America, he has returned to what he calls “the original sin” of the modern supreme court: “Thomas’s perjury to get on the court” and his allegedly untruthful answers to questions about his treatment of Hill and other women.“That’s my starting point,” Brock says. “And then I show over time that other justices misled the public in their Senate confirmation hearings based on their denial of the fact that they were opposed to Roe all along – which sort of came out in the wash with the Dobbs decision.”Dobbs v Jackson, which overturned Roe v Wade, removing the federal right to abortion, came in June 2022. The way it went down helped give Brock his subtitle. John Roberts, the conservative chief justice, sought to uphold Roe but Dobbs was decided 5-4 anyway, Roberts unable to sway any other rightwinger. As Brock sees it, Thomas now owns the court.View image in fullscreen“That was a tipping point,” Brock says, pointing to major rulings on guns, affirmative action, environmental regulation, corporate bribery, presidential immunity and more, all rightwing wins. “But the other thing about about Roberts is he’s let these ethical issues just sit there. They cast their own ethics code about a year ago – and it has no enforcement mechanism. He’s been a weak leader, I think.”If 2022 was the year of Dobbs, 2023 and 2024 have been the years of gifts and grift: a parade of reports, Pulitzer prize-winning in ProPublica’s case, about how Thomas did not declare lavish gifts from mega-donors with business before the court, prominent among them Harlan Crow, a billionaire with a penchant for Nazi collectibles.For Brock, “all the revelations about Clarence Thomas and the gifts put another layer on top of the book I was writing about the crisis of legitimacy at the court, as a result of the fact Dobbs was so unpopular. You had that ethical crisis as well.”Thomas denies wrongdoing. So do Samuel Alito and Neil Gorsuch, other hardliners with reported ties to rightwing money. Roberts refuses to testify on the issue in Congress. The result, as Brock says, is “a situation where polls show the supreme court is held in very low regard”.Brock holds Thomas in low regard too. On the page, he calls the justice “a scrapper and a battler”, a “supreme court justice turned showman”, and a “Bork without the brains” – a stinging reference to Robert Bork, the hardliner whose nomination failed in 1987, fueling rightwing determination to dominate at all costs.Brock says: “We went for a number of years when Thomas didn’t really speak from the bench at all [but] he’s been much more active in these last few years, and I think he’s a bit emboldened by the fact that he has now at least four colleagues who on many of these cases are going to agree with him.”Another driver of the court’s sharp rightward turn is Leonard Leo, the dark money impresario Thomas once called “the number three most powerful person in the world”. Brock could have used “the Leo Court” for a subtitle too, given Leo was “clearly was responsible for the three Trump justices”, via “an unprecedented move by Trump during the 2016 campaign, to provide lists to the Federal Society [which Leo co-chairs] of who he would nominate, as a way of bolstering his credibility with the evangelical right, which was skeptical of his personal behavior”.Leo also provided ballast for Mitch McConnell, the Republican leader in the Senate, as he ruthlessly blocked Barack Obama’s last pick for the court, Merrick Garland, “and so Trump was able to campaign on there being an open seat, and so … the McConnell strategy and the Leo strategy came together, and that is basically how Trump got elected”.In such terms, Brock has written a broad history of the court’s rightward shift from Nixon to Trump and after. But he has also written an old-fashioned broadside, a 300-page call for political action. Regarding Thomas, Brock wants impeachment.Identifying “eight specific areas of wrongdoing that require further investigation by Congress”, Brock says Thomas should first face scrutiny for his “bald-faced lie” in his confirmation hearings, when he categorically denied “any sexual discussion within the workplace”, a statement challenged by numerous witnesses.Brock’s other counts are linked to Ginni Thomas, the justice’s wife and a prominent far-right activist, and include failure to recuse in cases connected to her lobbying work and involvement in Trump’s election subversion; failure to disclose her earnings from the rightwing Heritage Foundation; and failure to disclose his own gifts from Crow, Leo and others.skip past newsletter promotionafter newsletter promotionView image in fullscreenBrock is not the first to call for Thomas to be impeached. In July, Alexandria Ocasio-Cortez launched her own attempt in Congress. Like the New York Democrat, Brock is a realist: he knows that even should Democrats retake the House and impeach Thomas, a closely divided Senate would be extremely unlikely to convict and remove. But that is no reason not to try.“Sometimes I play this thought experiment with myself about how the Republicans would exploit an opportunity to take advantage of their opponents’ vulnerabilities. I have no doubt that if the shoe were on the other foot and you had a Democratic Clarence Thomas, you’d have hearing after hearing, and I think you probably would have an impeachment inquiry.“And so what I argue is that even if you only get an impeachment hearing or investigation in the House, it would still shine light on all of this, and it’s still worth doing, even though we know we wouldn’t have the votes required to remove him. I think it would be a good experience for the public to air all this out.”Brock also says impeachment “would help make the case for supreme court reform”, yearned for by the left, in the face of staunch rightwing opposition.Another good idea for Democrats in election season, Brock says, is to keep a spotlight on Ginni Thomas. That spotlight may soon grow brighter. Citing two anonymous sources, Brock reports that Liz Cheney, the anti-Trump Republican, was responsible for blocking serious scrutiny of the Thomases by the January 6 committee, even as it uncovered evidence of close involvement in Trump’s 2020 election subversion.It’s an explosive claim – particularly as Cheney recently endorsed Kamala Harris for president. To Brock, it’s simply indicative of the damage the Thomases have done.“I think increasingly people are becoming aware that there’s something rotten at the core of the fact that Thomas refuses to recuse himself from these cases where his wife is actively involved 100% … she’s been a longtime, but very behind the scenes, influential operative.”So of course has Brock. Once, he was on the same side as Clarence Thomas’s most prominent supporters, among them Mark Paoletta, a lawyer and former Trump administration official Brock says “knew the truth of the Anita Hill accusations” but worked to instal Thomas on the court regardless.Strikingly, Brock also once moved in the same circles as Brett Kavanaugh, then a Republican aide and attack dog, now another member of the far-right bloc that dominates the supreme court, his own controversial confirmation, also beset by allegations of sexual misconduct, also part of American history.Such close connections to his subject help make Brock’s book a fascinating read. Asked how he will respond to attacks from former comrades, whether they read the book or not, he says: “Those will come with the territory.”

      Stench is published in the US by Knopf More

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      Erwin Chemerinsky on the need for a new US constitution: ‘Our democracy is at grave risk’

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      Among progressive scholars of the US constitution, Erwin Chemerinsky, dean of Berkeley Law, is widely considered pre-eminent. Now 71, he studied at Northwestern and Harvard and has also taught at DePaul, USC, Duke and UC Irvine. He has argued several cases at the US supreme court and written extensively about it.His last book, Worse Than Nothing, was a broadside against originalism, the doctrine touted by rightwing justices as they take an axe to hard-won rights. In his new book, Chemerinsky goes to the root of the problem with a still starker title: No Democracy Lasts Forever: How the Constitution Threatens the United States.Less than a hundred days from a presidential election which could see the return of Donald Trump, a candidate widely held to threaten cherished freedoms, Chemerinsky says: “I see an American government that is increasingly dysfunctional and that has lost the confidence of the people, in a society that is increasingly politically polarised. I worry greatly for the future of American democracy.View image in fullscreen“I wrote the book to explain how much of the problem stems from the constitution and suggest how it can be fixed.”In conversation, Chemerinsky patiently outlines the problem. It boils down to this: the US constitution is not fit for purpose.It was created in 1787 by a small group of white men who hashed out a deal in their own interests, chief among them protecting smaller states and owners of enslaved people. Those framers made foundation stones of economic and racial inequality and also erected enduring barriers to political equality including an electoral college that makes minority victory possible in presidential elections and two senators for each state regardless of population.The constitution has been changed, significantly in 1791, with the 10 amendments of the Bill of Rights, and between 1865 and 1870, after the civil war, with amendments to abolish slavery, expand the citizenry and give Black men the vote. There have been other major changes, not least the 19th amendment, which gave women the vote in 1920. A century later, though, change seems harder than ever.Consider the plight of the Equal Rights Amendment, which simply says “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex” and which, as Chemerinsky describes it, “was passed overwhelmingly by Congress in 1972” as “a simple and un-objectionable statement”, but “even though 38 states at some point ratified it … is still not part of the constitution”.The ERA is stymied by pure politics. Pure politics – as practised by Republicans who benefit most from the enshrinement of minority control, as found in the stubborn persistence of Senate rules such as the filibuster that exist to block change – is of course eternal. And so as another election year grinds on, Democrats hoping to fend off Trump, Republicans seeking to tighten their grip on the levers of power, there the constitution sits, physically in the National Archives in Washington, theoretically near-impossible to change.Chemerinsky offers pointers to how change might be achieved – mostly by Democrats winning majorities in statehouses and Congress and working to sway public opinion towards the need for radical change, via a new constitutional convention. But he concludes with striking pessimism.“Our government is broken and our democracy is at grave risk, but I don’t see any easy solutions,” he writes. “A book that describes problems ideally should offer realistic fixes, but none are apparent … I desperately want to be wrong, either about my premise (that American democracy faces a serious crisis), or my conclusion (that fixing the problems will be hugely difficult or even impossible).”In conversation, Chemerinsky strikes a more hopeful note.“The constitution is revered,” he says, referring not just to the document itself but to rhetoric, teaching and even popular entertainment that has made demigods of Alexander Hamilton, James Madison and other framers. “That reverence has a cost in that it has kept us from focusing on its flaws and how much they contribute to our crisis of democracy.“I have argued that there should be a progressive interpretation of the constitution. But I also think it is time to begin considering a new constitution. I think people could ratify a new constitution even though this mechanism is not provided for in the constitution.”In short, as in most aspects of politics, it’s all a matter of will.On the page, Chemerinsky also devotes space to the question of free speech, a right guaranteed by the first amendment but forever contested. Among progressives, such contests now rage regarding protests against US support for Israel in its war in Gaza. Last April, that debate burst into Chemerinsky’s backyard – literally. A traditional dinner for students, given with his wife, the law professor Catherine Fisk, was interrupted by protesters.As Chemerinsky wrote, for the Atlantic, he was “stunned to see the leader of Law Students for Justice in Palestine … stand up with a microphone that she had brought … and begin reading a speech about the plight of the Palestinians”.Chemerinsky and Fisk “immediately approached her and asked her to stop speaking and leave the premises. The protester continued. At one point, [Fisk] attempted to take away her microphone. Repeatedly, we said to her: ‘You are a guest in our home. Please leave.’“The student insisted that she had free-speech rights. But our home is not a forum for free speech; it is our own property, and the first amendment – which constrains the government’s power to encroach on speech on public property – does not apply at all to guests in private backyards.”It was one dramatic and traumatic event in an episode that has turned the left against itself. Understandably, Chemerinsky is guarded about what happened in his backyard in April and its implications. But he is happy to explain his approach to free speech issues.“Absolutism rarely makes sense,” he says. “Free speech cannot be absolute. Perjury is speech, but it can be punished. An employer who says to an employee, ‘Sleep with me or you’re fired,’ is engaged in speech, but can be held liable. No one suggests gun rights can be absolute. No one believes that there is a right to have guns in courthouses or airports.”No one in normal society, perhaps. In the age of Trump, extreme beliefs surge.Chemerinsky also grapples with the specter of secession, amid increasing debate over the idea that in an age of deep division, states either right or left, red or blue, might decide to start out anew, perhaps prompting a new civil war.To Chemerinsky, secession by progressive states is just as possible as a rightwing move to secede, particularly if Trump wins the White House and Republicans take full control of Congress.“I do not think secession is likely,” he says, “and I certainly don’t think it is desirable. But I think it is a possible path we could be discussing more in the years ahead if there are not changes.”

      No Democracy Lasts Forever is published in the US by Liveright More

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      Joe Biden is politicizing US supreme court reform – and that’s a good thing | Austin Sarat

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      “Better late than never” is a useful maxim in all of life and in politics as well. On Monday, Joe Biden caught the “better late than never” bug when he unveiled a series of proposals to reform the US supreme court.Those proposals come more than two and a half years after the US president’s presidential commission on the supreme court issued its recommendations, and more than 40 years after Biden called former president Franklin Delano Roosevelt’s plan to impose term limits on the court “boneheaded”.In 2020, during his quest for the White House, Biden again distanced himself from people who were pushing for significant institutional reform at the court.How times have changed. That was before the court overruled Roe v Wade, the ethics scandals of justices Samuel Alito and Clarence Thomas came to light, and before the court gave the president almost blanket immunity from criminal prosecution.Biden announced his new thinking in a Washington Post op-ed, in which he detailed what he called “three bold reforms to restore trust and accountability to the court and our democracy”. They begin with a constitutional amendment designed to reverse the supreme court’s Trump v United States decision granting presidents immunity from criminal prosecution for their official acts.Biden calls it the “No One Is Above the Law Amendment”. It would “make clear that there is no immunity for crimes a former president committed while in office”.The second of Biden’s reform proposals would impose term limits on the justices who sit on the supreme court. It would institute “a system in which the president would appoint a justice every two years to spend 18 years in active service on the Supreme Court”.Third, Biden called for enacting “a binding code of conduct for the Supreme Court”. Justices, Biden wrote, “should be required to disclose gifts, refrain from public political activity, and recuse themselves from cases in which they or their spouses have financial or other conflicts of interest”.While each of these proposals is a wise response to the current crisis of the supreme court, none of them has any chance of being enacted in the near future. Still, Biden has done a service by going public with these ideas and politicizing the court reform question.His op-ed and speech on court reform at an event commemorating the passage of the 1964 Civil Rights Act will help ensure that supreme court reform is a live issue during the remainder of the 2024 presidential campaign.The first of Biden’s proposals, the call for a constitutional amendment, is the most important but also the most difficult to achieve among his three ideas. Like earlier versions of the same idea, it offers an important vehicle for engaging the public in resisting yet another exercise of judicial supremacy by our increasingly rogue supreme court.America has a long history of using the amendment process to reverse repugnant supreme court decisions, like Trump v United States. But as Harvard Law’s Jill Lepore notes, over the long arc of American history, amending the constitution has “become a lost art”.In fact, Lepore noted elsewhere: “The US Constitution hasn’t been meaningfully amended since 1971.”However, by supporting an amendment to reverse Trump v United States, Biden has teed up a winning issue for Kamala Harris. Polls show that 65% of Americans do not think presidents should have immunity for actions taken in office.Among independent voters, that number is 68%.Even larger majorities support 18-year term limits for supreme court justices. As the Biden commission noted: “Up until the late 1960s, the average term of service was 15 years. It has now risen to roughly 26 years, and a number of Justices have served three or more decades, spanning numerous election cycles and presidential administrations.”skip past newsletter promotionafter newsletter promotionThis may be why a Fox News Poll conducted earlier this month found that 78% of the respondents favor that idea. That is up from 66% in 2022.While term limits are popular, it is unclear whether Congress could impose them by ordinary legislation or whether this proposal would also require a constitutional amendment. Even Biden’s supreme court commission was divided on that question.As an article in Forbes explains: “Article III of the Constitution states judges ‘shall hold their Offices during good Behaviour,’ which has been interpreted to mean justices have to hold lifetime appointments. The commission said Congress could get around the issue by having only the most recent justices hear most cases, which originate in lower courts, while still keeping the older ones on to hear cases that originate in the Supreme Court.”“That strategy … would create the ‘effective equivalent’ of term limits without actually violating Article III by kicking justices off the court.”What is clear is that Donald Trump is on the wrong side of the supreme court term limits idea. Earlier this month, the former president branded court reform proposals such as term limits “illegal” and “unconstitutional”.“The Democrats are attempting to interfere in the Presidential Election, and destroy our Justice System, by attacking their Political Opponent, ME, and our Honorable Supreme Court,” he posted on Truth Social. “We have to fight for our Fair and Independent Courts, and protect our Country.”Trump is even out of step with his supporters on the idea of term limits for justices. Newsweek says: “Among those who voted for Trump in 2020, 54% supported term limits, while 20% opposed them.”Finally, a Politico/Morning Consult poll conducted last September showed that “three-in-four voters want the justices bound to an ethics code, the most popular reform proposal in the survey”. This figure reflects what Politico calls “a bipartisan consensus of 81% of Democrats, 72% of Republicans, and 69% of independents”.Here, too, Maga world is on the wrong side politically, as well as on the wrong side of history. Just last month, as NBC News reported, Senate Republicans “blocked a Democratic-sponsored bill that would have required Supreme Court justices to adopt a binding code of conduct”.In the end, no matter how Biden’s proposals play out in the presidential contest, by politicizing the issue, by going public with them in a high-profile manner, the president has offered the people of the United States a chance to make their voices heard about the kind of supreme court they want. It is now up to all of us to take him up on that offer and use our votes to weigh in on this most important question.

      Austin Sarat is a professor of jurisprudence and political science at Amherst College and the author of Lethal Injection and the False Promise of Humane Execution More

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      House Democrat pledges amendment to reverse Trump immunity ruling

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      A Democratic congressman is calling for a new constitutional amendment to reverse the supreme court’s ruling granting presidents broad immunity from criminal prosecution, a decision that could hamstring the federal case against Donald Trump over his efforts to overturn the results of the 2020 election.Congressman Joe Morelle, a New York Democrat, raised the idea on Monday, just hours after the supreme court issued its 6-3 decision, which fell along ideological lines.“I will introduce a constitutional amendment to reverse Scotus’s harmful decision and ensure that no president is above the law,” Morelle wrote on X. “This amendment will do what Scotus failed to do – prioritize our democracy.”But Morelle’s plan is highly unlikely to succeed. A constitutional amendment can be proposed either by a two-thirds majority vote in the House and Senate or by a constitutional convention, which may be called by two-thirds of state legislatures.With Republicans controlling the House of Representatives and a majority of state legislative chambers, that hurdle appears impossible to overcome. Republicans largely celebrated the court’s ruling as a win for the rule of law, despite legal experts’ warnings that the decision could set a dangerous precedent for future presidents.“Today’s ruling by the court is a victory for former president Trump and all future presidents, and another defeat for President Biden’s weaponized Department of Justice and Jack Smith,” Mike Johnson, the Republican House speaker, said on Monday.Even if a two-thirds majority of Congress members did somehow come together to propose Morelle’s suggested amendment, it would need to be ratified by three-quarters of state legislatures to be added to the constitution. Given that Democrats control just 41% of state legislative chambers, ratification efforts would almost certainly prove futile.With few options to challenge the court’s ruling, Democrats seem intent on turning the immunity case into a campaign issue. As he addressed the court’s decision on Monday evening, Joe Biden called on Americans to prevent Trump from returning to the White House at a time when “he’ll be more emboldened to do whatever he pleases”.“Now the American people have to do what the court should have been willing to do and will not,” Biden said. “The American people have to render a judgement about Donald Trump’s behavior.” More

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      Making US public schools display the Ten Commandments isn’t harmless or neutral | Judith Levine

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      I was 10 in 1962, when the supreme court ruled, in Engel v Vitale, that the officially sanctioned recitation of prayer in public schools violated the constitution’s first amendment, which prohibits the establishment of a state religion.Before that, my school day started with the Pledge of Allegiance, followed by an appeal to God. We rose and pushed our chairs under our desks. Then we stood erect, gazed at the flag sticking out at an angle above the blackboard, and placed our right hands over our hearts. After the pledge, we bowed our heads and said a prayer composed by the New York state board of regents, which held authority over the schools: “Almighty God, we acknowledge our dependence upon Thee, and we beg thy blessings upon us, our parents, our teachers and our country.”As far as I could tell, none of this presented a problem for my classmates, almost every one of them Italian, Greek, or Irish Catholic. Many kids clasped their hands during the prayer.But as the only Jew in the class and the daughter of militantly atheist socialists to boot, saying these words every day was no simple exercise.To my parents, both the pledge and the prayer constituted authoritarian brainwashing. They had reason to suspect oaths of allegiance. Under the anticommunist regime of Senator Joe McCarthy, my father, a high school teacher, was required to sign a loyalty oath disavowing membership in the Communist party. He refused, and, like other government employees on the left, resigned rather than be fired.Although the Pledge of Allegiance contained no such explicit ideology, in 1954 Congress added the words “under God” to the pledge, a rebuke to godless communism. My parents weren’t thrilled by this conflation of patriotism and theism. But even if the US deserved fealty – and my mom and dad were not convinced it did – they objected to children being trained to give it by rote.It was the prayer that really riled them, though. Its authors called it “non-denominational”, but that did not distract the supreme court, or my parents, from the law’s intent: “to further religious beliefs”, said the justices – a clear breach of the separation of church and state. “In this country, it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government,” they wrote.I’d been attending civil rights and Ban the Bomb demonstrations since infancy. I was an unswerving non-believer as far back as I could remember. I was proud to be different, because nonconformity meant rejecting lies and standing up for what was right.Still, a kid wants to fit in. It was hard enough being Jewish. Hurtful to endure casual antisemitism (“I hate Jews,” an erstwhile friend announced one day, out of the blue). Uncomfortable to be left alone with the teacher and the one Protestant girl on Wednesday afternoons, when the Catholic kids were excused for “catechism”.It was dicey being an atheist. In third grade, I was consumed by terror after my three best friends convinced me that if I didn’t start believing in God I would end up in hell, which they described in ghastly detail. Anti-communism also threatened my family’s security – I kept that part of me a secret.Mom and Dad assured me that the law allowed me to remain silent or leave the room during the prayer, and they’d support my doing so even if it were illegal. I wanted to. But didn’t they understand that either act would only call attention to my apostasy?I was destined to betray something or someone – America, God, the truth, my family. Or myself. But what elementary school child knows who that is? What child should be compelled to figure it out?Jeff Landry, the Republican governor of Louisiana, recently signed a law requiring that the Ten Commandments be displayed in every classroom. “If you want to respect the rule of law,” he said, “you’ve got to start from the original lawgiver, which was Moses.”It was a nod to the “Judeo” in the “Judeo-Christian values” the Christian right is forever invoking – never mind that some people are neither Jews nor Christians, but Hindus, Muslims, Buddhists, or none of the above. The Republican state representative Dodie Horton insisted that the law “doesn’t preach a certain religion”, but merely “shows what a moral code we all should live by is”.These statements recall New York’s statement on moral and spiritual training in the schools, in which the “non-denominational” prayer was published three-quarters of a century ago. “We believe that this statement will be subscribed to by all men and women of good will,” the officials wrote, “and we call upon all of them to aid in giving life to our program.”Civil libertarians are challenging the Louisiana law. Its supporters are keen for the challenge, betting that the justices who have begun removing bricks from the constitutional wall of church-state separation will demolish the whole thing this time. Republican politicians in Texas have already indicated they plan to follow Louisiana’s lead.Government-mandated religion is patently unconstitutional. It reproduces the religious coercion that Europeans came to this continent to escape. It is no boon to children’s spiritual or civic education. Rather, it is harmful to children – or some children, as it was to me. And legally and morally, even one is too many.
      Judith Levine is a Brooklyn journalist and essayist, a contributing writer to the Intercept and the author of five books More

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      The Year of Living Constitutionally: a man, a political plan … and a musket

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      Would you fly the Jolly Roger for Uncle Sam? AJ Jacobs tried to. For 12 months, the author and journalist became what he calls “the original originalist”, seeking to live the way the founders envisioned life under the US constitution.That life included the right to piracy on behalf of the US government. It sprang from a tradition predating the constitution, when the Continental Congress granted letters of marque and reprisal, allowing seamen to capture British ships. Noting this precedent, Jacobs brought an unconventional offer to Ro Khanna, a Democratic congressman from California, when the two met in a hotel lobby.“I said, ‘I’m following the constitution and would like to be granted a letter of marque and reprisal,’” Jacobs recalls. “He said, ‘Great, let’s make it happen.’ I explained to him what it was: basically legalized piracy. I would fight our enemies on my friend’s water-ski boat.”After that, Khanna “was a little more like, ‘Maybe this is not going to happen.’”Jacobs didn’t get his Captain Jack Sparrow moment. But he did get a book out of the experience, The Year of Living Constitutionally: One Man’s Humble Quest to Follow the Constitution’s Original Meaning, which has received multiple votes of approval – including from Khanna.“He did like the idea of the book: trying to explain the origins of the constitution, what it really means, what it says.”In 2007, Jacobs published the results of a similar project, The Year of Living Biblically.“They have a similar status in our society,” he says, of the Bible and the constitution. “Some people see them as sacred and try to follow them in the original meaning as it was written.”Others look to adapt the texts for a modern era. For the constitution, this has evolved into a debate between originalists and living constitutionalists. Jacobs interviewed scholars across the spectrum.View image in fullscreen“This was my favorite part. They were super-generous with me.” Some were “people who were the most liberal and progressive and saw the constitution as having no intrinsic meaning, it could be molded like Play-Doh”. Others felt that “whatever the constitution meant then is what it means now. One guy refused to capitalize the S in ‘supreme court’. In the constitution” – as in the Guardian style guide – “the S is not capitalized … It was a wide range.”The originalists have been getting the better of things lately, including on the supreme court. And it was originalism – and the Guardian – that helped nudge Jacobs toward his book idea.After the 2022 supreme court decision Dobbs v Jackson, which overturned Roe v Wade, removing the federal right to abortion, a Guardian editor asked Jacobs to cover an unexpected trend. It related not to abortion, which was suddenly up to the states, but to vasectomies, which a surprising number of American men were choosing to have.“I am the type of journalist who tries things out myself and writes about the effort,” Jacobs says. “I did not feel like getting a vasectomy. I did not know if I was the right person for that interesting storyline.”What he did feel like was exploring the originalist mindset. He came across a startling statistic: at least 60% of Americans, including himself at the time, had not read the constitution from beginning to end, despite it running just four to six pages. It was time to delve into “what it really says, what it really means, instead of getting it filtered from whatever media you happen to be partial to. Let’s read what it actually says.”When it came to the right to piracy, although Jacobs couldn’t sail the high seas he did receive an email from a Khanna staffer addressing him as “Captain Jacobs”. Then there was petitioning the government. Instead of the online approach, Jacobs brought a scroll somewhere near 200ft long into the office of Ron Wyden, a Democratic senator from Oregon. Hundreds had signed the scroll. When Jacobs took some notes using his quill pen, it left ink on Wyden’s carpet. Jacobs added $50 to his taxes to foot the bill. (The subject of his petition was “Let’s have co-presidents”, a cause advocated by some founders, with Benjamin Franklin recommending 12 chief executives at once.)State laws came into the picture too. Free-speech advocates might be surprised by how much states policed what Americans said in the early republic. New York fined those who blasphemed or cursed 37 and a half cents. Jacobs did the same with his three sons, though they declined to come up with a half-cent.“It was not an easy year,” he says. “It was about as hard as The Year of Living Biblically.” That said, there were some differences. With the Bible, Jacobs “grew a huge beard. This did not involve as much facial hair.” But his appearance and lifestyle changed in other ways. He wore a tricorn hat, carried a musket, consumed an unusual amount of cloves, wrote with a quill, and woke up at the hour recommended by Franklin: 5am.View image in fullscreen“I tried to express second amendment rights the old-fashioned way,” he says. “I got a musket off ye olde internet and carried it around the Upper West Side where I live. A lot of people were crossing the street. People gave me a scowl.” When he brought it into a coffeeshop, a customer invited Jacobs to go ahead of him in line.“It’s sort of a good example of how this year went. At times, it was very strange, bizarre and awkward. But it was also, at the same time, incredibly enlightening and fascinating. I do think it gave real insight into how we should interpret the constitution.”He was particularly pleased with one custom: election cakes, meant to spur civic participation. Jacobs got volunteers representing all 50 states to bake election cakes last year. He plans to do it again.Although Jacobs appreciated the chance to adopt an 18th-century detachment from the near-constant news of today, he appreciates the progress America has made, saying: “It was terribly sexist and racist towards women, Black people and Indigenous people. I don’t want to go back to that.“Women’s rights were very constrained, especially married women, who were treated like children. They could not sign contracts. My wife owns a business. She signs several contracts a day.”Jacobs’s wife, Julie, let him take over contract-signing – then fired him after an hour.Jacobs also examined how 19th-century abolitionists saw the constitution. William Lloyd Garrison was so outraged by its stance on slavery that he advocated burning it – and did so. Frederick Douglass, who was formerly enslaved, had the same view but changed his mind and recommended Americans view the constitution as a promissory note.“Douglass says, ‘Let’s work to make America live up to the principles in the constitution.’ It becomes a very powerful way of looking at the constitution. Martin Luther King Jr talks about the constitution as a promissory note. Barack Obama gave a great speech that said the seeds of freedom were planted in the constitution … The solutions to the problems of the constitution are in the constitution itself.”
      The Year of Living Constitutionally is published in the US by Crown More