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Recovering the Constitution (Townhall.com) January 24, 2011

Posted by daviddavenport in Radio Commentaries.
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One favorable development in Washington is Congress’s newfound interest in 

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 the Constitution.  First, they read it on the House floor and then required that all bills identify “as specifically as practicable the power…granted to Congress in the Constitution to enact the bill….”

This may be symbolic, but it is powerful symbolism. First it reminds Congress itself that we have a federal government of limited and enumerated powers.

Second, it reinforces that all the branches of government own the Constitution, not just the judiciary.  The idea that the Constitution means what the Supreme Court says it means was decided by the Supreme Court itself.  Congress and the President also take an oath to uphold the Constitution and they should have their oar in that water.

To listen to the audio:  http://townhall.com/talkradio/Show.aspx?RadioShowID=11&ContentGuid=6dd170fe-9a99-48bb-bb6d-e3f0869916cc


Constitution Day: An Annual Checkup (Townhall.com) September 17, 2010

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Today we celebrate Constitution Day, the 223rd birthday of our founding 

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 document. An annual check-up shows that while it is still the longest-lasting constitution in the world, certain provisions are under attack and vulnerable. 

The limitation on Congressional powers in Article I has been stretched beyond recognition, and the obesity of the federal government threatens its health;

With the federal government taking over states’ matters such as education and healthcare, the 10th amendment is weakened and needs attention;

The National Popular Vote bill threatens checks and balances such as the Electoral College—a serious case of memory loss that the Founders created a republic, not a national democracy.

Do yourself and the country a favor today—take 20 minutes and read the Constitution. You’ll be surprised by what it actually says.

To listen to the audio:  http://townhall.com/talkradio/Show.aspx?RadioShowID=11&ContentGuid=18e92e64-e3b6-467b-8f03-a70de59980c0

Federal-state tug of war on Constitution Day (San Francisco Chronicle) September 17, 2010

Posted by daviddavenport in Newspaper Columns/Essays.
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Today marks the 223rd birthday of the signing of the U.S. Constitution,   recognized as the oldest national constitution still in operation. If I were its physician, an annual checkup would conclude that, while still alive and kicking, the health of the Constitution faces several clear vulnerabilities.

Most notably, Washington has grown federal powers well beyond those listed or even contemplated in Article I of the Constitution, while state powers preserved by the 10th Amendment are in steady decline. In medical terms, the federal government is obese, while the states are starving. Many prominent court cases today – raising questions about health care, immigration and same-sex marriage – are fundamentally asking federal judges to referee a historic federal-state tug of war.

Take health care reform, for example, which was in federal court again this week. Health and welfare have long been considered the purview of states, but the health care reform legislation moved the federal government into the driver’s seat. Constitutional challenges question Washington’s power to do this on several grounds: Can the federal government create more unfunded mandates for states? Where does the federal government get the power to require states to change their Medicaid (Medi-Cal in California) laws? And most interesting, how can the federal government mandate the individual purchase of health insurance, either as a tax (which looks more like a penalty) or as interstate commerce (when it’s really not commerce)?

The Arizona immigration law is also working its way toward the Supreme Court, raising a different federal-state question. Frustrated that the federal government wasn’t carrying out its duties to police the borders, Arizona enacted a law to step up state enforcement. The U.S. Department of Justice challenged the law primarily as a violation of federal supremacy over immigration. Yet both federal and state immigration laws recognize that complementary federal-state action is needed. Similar questions arise when states enact clean-air standards that are more stringent than federal law.

Cases on same-sex marriage are also moving from federal courts in Massachusetts and California toward higher courts. In Boston, a federal judge concluded that marriage is a question of state law, finding the federal Defense of Marriage Act unconstitutional. Is there room for 50 different definitions of marriage? And would states have to give “full faith and credit” to a marriage performed under a different state law? Similar questions arise in elections this fall about medical marijuana: If California wants to allow it and other states do not, should the federal government mandate uniformity and, if so, by what Constitutional power?

One reason so many of these federal-state questions are in court just now is that we have a president and Congress from the same political party, who took office with some electoral mandate to address a crisis. So the federal agenda grows: health care, education reform, stimulus bills and the like. But ultimately our Constitution asks: By what right does the federal government take the lead on these matters? President Franklin Roosevelt faced a similar challenge when the Supreme Court blocked much of his early New Deal legislation as an unconstitutional expansion of federal power, leading him to propose his controversial and unsuccessful court-packing plan.

Ultimately the courts and the Constitution are the check against federal power grabs by Congress and the president. If states are no longer really in charge of education, health and welfare, or social questions such as the family, why have states at all? I will venture a guess that in at least one of these cases, the federal courts will tell Congress and the president that we aren’t ready to turn everything over to Washington just yet.

David Davenport is a research fellow at the Hoover Institution.

This article appeared on page A – 12 of the San Francisco Chronicle

Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/09/16/EDG61FENQF.DTL#ixzz0znsNKHYE

Is Healthcare Reform Constitutional? (Townhall.com) April 30, 2010

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At least 20 states have gone to court arguing that the healthcare reform bill is unconstitutional.

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Unfortunately, like the pitch that isn’t a ball or strike ’til the umpire calls it, no law is legally unconstitutional until a judge says so.

Constitutionally questionable is the unprecedented requirement that Americans buy health insurance or pay a penalty. Proponents defend it on “interstate commerce” grounds, but if a 20-year old decides he doesn’t need health insurance, that’s not commerce at all, much less interstate. Others say Congress has power to do this under the 16 th amendment taxing authority, but it sure looks more like a penalty than a tax.

The healthcare bill surely violates federalism and the 10 th amendment, which established a limited federal government with all powers not given to Washington remaining in the states and the people. Let’s hope some judge pays attention to that .

To listen to the audio: http://townhall.com/TalkRadio/Show.aspx?ContentGuid=a8604eae-9e48-4fac-a6e6-a11b63843467&RadioShowId=11

The Constitution Day Quiz w/Gordon Lloyd (San Francisco Chronicle) September 17, 2008

Posted by daviddavenport in Newspaper Columns/Essays.
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Today we celebrate the 221st anniversary of the signing of the U.S. Constitution. Although the Fourth of July, celebrating the signing of the Declaration of Independence, has long been observed, it was only four years ago that Congress passed a law mandating the celebration of Constitution Day, at least by schools and federal agencies.

What began as an American experiment – the first constitution created by the deliberation of elected representatives rather than by the force of a single leader – is now the longest-living constitution in the world. We invite you to refresh your knowledge of this important era and remarkable document through the following 10 questions:

1. The average age of the framers or Founding Fathers was approximately:

A. 30

B. 40

C. 50

D. 60

2. Who is popularly known as “the father of the Constitution?”

A. Ben Franklin

B. Thomas Jefferson

C. James Madison

D. George Washington

3. Questions have been raised about the eligibility of both John McCain and Barack Obama to serve as president because of their place of birth. The Constitution requires that the president:

A. Be a naturalized citizen

B. Be a natural-born citizen

C. Have resided in the United States for at least 10 years

D. Be a natural-born citizen and a resident within the United States at least 14 years

4. If a gay couple married under the laws of California moves to Kansas where gay marriage is not recognized as legal:

A. Kansas is obligated to recognize the marriage under California law

B. Kansas is not obligated to recognize the marriage under California law

C. Kansas is obligated to petition a federal court to resolve the matter

D. The legal obligation of Kansas is presently unclear

5. Prior to the ratification of the 19th Amendment in 1920:

A. Women did not have the right to vote for president

B. Women in certain states had the right to vote for president

C. All women had the right to vote for president

D. Women married to landowners had the right to vote for president

6. The phrase “the Constitution means what the Supreme Court says it means” is stated in:

A. Article I of the Constitution on legislative authority

B. Article II of the Constitution on executive authority

C. Article III of the Constitution on judicial authority

D. Judicial decisions by the Supreme Court itself

7. Electors in each state are assigned to a presidential candidate based upon:

A. Winner takes all

B. Proportion of the popular vote the candidate wins

C. Whatever formula the state decides

D. None of the above

8. With regard to education, the Constitution explicitly provides:

A. A fundamental right to a basic education for every American

B. Federal oversight of education

C. A system of public and private education

D. None of the above

9. Which of the following is explicitly mentioned in the Constitution (including its amendments)?

A. The right to keep and bear arms

B. Separation of church and state

C. The right of association

D. The right to privacy

10. According to the Constitution, in order to run for the U.S. House of Representatives, a candidate must:

A. Reside in the state where elected for 5 years

B. Reside in the state at the time of declaring candidacy

C. Reside in the state when elected

D. Reside in the congressional district to be represented

ANSWERS: 1. B, 2. C, 3. D, 4. D, 5. B, 6. D, 7. C, 8. D, 9. A, 10. C

 David Davenport is a research fellow at the Hoover Institution and Gordon Lloyd is professor of public policy at Pepperdine University.

(C) San Francisco Chronicle 2008
To view the article:  http://articles.sfgate.com/2008-09-17/opinion/17160772_1_natural-born-citizen-celebration-of-constitution-day-ben-franklin

Electoral College Quiz (San Francisco Chronicle) July 4, 2008

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Like the 4th of July, the Electoral College is distinctively American. Suspicious of pure democracy, the founders designed separation of powers and various checks and balances in the American republic, including the elector system. Today many are puzzled by it, and few seem to understand its value and purpose, much less the details of how it operates. How much do you know about the Electoral College?

1. When and where does the Electoral College meet to do its work?

a. Annually in Washington, D.C.
b. Every 4 years in Washington, D.C.
c. Every 4 years at a rotating site
d. Never

2. Why did the Founders favor the elector system?

a. To protect slavery and avoid civil war
b. To give states a role in the election process
c. To exclude women from the franchise
d. The founders did not favor it, it was added later

3. Where in the Constitution is the Electoral College established?

a. Article II (about executive powers)
b. The 12th amendment (adopted in 1804)
c. Both a and b
d. It is not in the Constitution

4. The popular vote for president of the United States is:

a. One national election, regulated by Congress
b. 51 state elections (including the District of Columbia)
c. 50 state elections regulated by the states themselves
d. 50 state election regulated by Congress

5. How many proposals have been made to reform or eliminate the Electoral College?

a. 7
b. 70
c. 700
d. 7000

6. Electors in each state are assigned to a candidate based upon:

a. Winner takes all
b. Proportion of the popular vote the candidate wins
c. Whatever formula the state decides
d. None of the above

7. How frequently has a presidential candidate won the most popular votes but was not elected because of the Electoral College?

a. Never
b. Once
c. Twice
d. 3 times

Answers: 1) d 2) b 3) d 4) b 5) c 6) c 7) d

It’s Not Broken, So Don’t Fix It – Misguided tinkering would misshape our society, with Gordon Lloyd(San Francisco Chronicle) October 28, 2007

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If you believe Professor Larry Sabato, the U.S. Constitution–after performing well for more than 200 years–needs an extreme makeover.

In his new book, “A More Perfect Constitution,” the University of Virginia professor rolls the Constitution into the operating room for major surgery, breathlessly prescribing 23 specific revisions in 230 pages. Like the makeover specialists on reality television, he proposes to turn our tired, archaic political body into something trendier for the 21st century.

Sabato’s constitutional redo touches just about everything, and throws in the kitchen sink for good measure. First, he wants to boost the Senate from 100 members to 135, and virtually double the membership of the House, to an even 1,000. There are also term limits for Congress, a new election cycle and, while we’re at it, only one six-year term for the president, with a two-year performance bonus.

But he’s just getting started. A line-item veto, a balanced budget amendment, a limit on the president’s war powers, a mandatory two-year national service program — it’s all there and more.

It’s hard to know how seriously to take such a sweeping proposal. The Constitution provides for amendments but wisely sets the bar too high for regular tinkering. Article V allows two-thirds of the House and Senate to propose an amendment that three-fourths of the state legislatures must approve. It’s not as if that hasn’t worked — there are now 27 amendments to the Constitution, eight of wich were approved between 1932 and 1992.

Professor Sabato is concerned that Congress screens out most proposed constitutional amendments, but as former Kansas Sen. Bob Dole said, “There are a lot of bad ideas in Washington, and someone needs to stop them.”

You don’t have to be a conservative to think it’s a bad idea to call a constitutional convention with 23 revisions on the table. At a recent meeting to discuss Sabato’s proposal, former Democratic vice presidential nominee Geraldine Ferraro said she was afraid of potential mischief in a constitutional convention, noting the system now works pretty well.

Supreme Court Justice Samuel Alito, not certain where we might find the leadership for a second round of framing and founding, said he was “pretty fond of the Constitution we have now.”

Beyond the question of process, what about the content of Sabato’s 23 ideas? In essence, Sabato wishes he could improve the Constitution in two basic ways: by making it fairer and more effective. These aspirations sound nice — what’s a little Botox here and there? — but in fact do more harm than good.

For example, Sabato’s idea of unfairness is often little more than the founders’ respect for the role of states in our federalist system. Notably, none of his proposed revisions would strengthen state and local government, preferring instead a kind of national democracy. This is not an updating of the founders’ ideas — it’s an assault on them.

Sabato believes that it’s unfair for smaller states to have the same number of senators as large states, when, in fact, the House was designed to represent the people and the Senate to represent the states. If anything, the modern problem is that senators rarely see their responsibility as representing a state.

Similarly, the electoral college is insufficiently appreciated by many, including Sabato. We forget that, throughout the Constitution, roles are preserved for states as well as individuals, including the popular vote for the people and the electoral vote for the states. Even today, the electoral college serves a useful purpose, drawing candidates to campaign more widely in the closing days of a campaign to reach those contested states. And where would we have been in the 2000 election if the electoral college had not reduced the recount to a single dispute in Florida? A long and contentious national re-count and a delay in inaugurating a president would have been troublesome outcomes.

Sabato’s plan would further empower political parties in a parliamentary democracy in which revised election cycles platoon a lot of Republicans or Democrats into the game simultaneously. If part of the problem is that the president can’t line up a compatible team in Congress and get things done, let’s just change the rules. But election results consistently remind us that the people like the check and balance of a president from one party and a Congress from the other. Contrary to Sabato’s notion of more tinkering and more government, it may well be that the people, despite their complaints, are happy to keep government stalemated and less a part of their daily lives.

In reality, some of Sabato’s concerns can be traced to a lack of political will to use existing powers, rather than flaws in the system itself. For example, he is right when he argues that Congress hasn’t provided an effective check on the president’s war powers, but we don’t need war authority running out every six months to fix that. We need a Congress with more backbone to use the war and budget powers it already has. This is a symptom of a larger problem in Sabato’s approach — that we should substitute new organizations and structures when political leadership doesn’t deliver the results we want.

Although Sabato says all he really wants to do is start a conversation, we believe that the subtitle of his book –“23 Proposals to Revitalize Our Constitution and Make America a Fairer Country” –would be more accurate if it read: “23 Ways to Lose Your Founders.” Rather than read this book, you might consider Heather MacDonald’s work, “The Burden of Bad Ideas: How Modern Intellectuals Misshape Our Society.”

Congress stikes out on Schiavo, with Gordon Lloyd (San Francisco Chronicle) March 23, 2005

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Hard cases make bad law. This legal aphorism, widely quoted by judges and law professors, needs no better illustration than Congress and President Bush rushing back to Washington over the weekend to put a new law on the books for Terri Schiavo.

This gem of legal wisdom fits the Schiavo case like federalism used to fit Republicans. Hard cases — in which the application of existing law doesn’t resolve a difficult case in the way a judge or jury (or now Congress) might like — sometimes tempt decision-makers to stretch or change the law. Even when this produces a short-term gain, it nearly always results in damage to the law and to those who must be judged by it.

In this case, federalism has been twisted and shrunk like some precious garment run through the ringer and a hot dryer. While our hearts go out to all involved in this life-and-death drama, Congress had no superior expertise to that exercised by the Florida judiciary and the U.S. Supreme Court, and it had no proper constitutional basis to intervene in this case.

Federalism is the bedrock doctrine of our republic, establishing the principle that who makes decisions on various matters is important. So the first question here is whether medical care should be decided by government or by families and individuals in consultation with physicians. Even if government is to be involved, the Constitution requires us to answer two more questions: which branch of government (executive, legislative or judicial) is appropriate and then at which level (federal, state or local). These are the rules that guide our federal republic.

For 15 years, this case has worked its way through the proper venues: family, medical experts and, since no federal issue is presented, judicial review in state courts. By now, 19 judges in 6 courts have reviewed the matter, and the U.S. Supreme Court has looked at the case three times, most recently on Friday, and declined to hear it. With an abundance of due process, this was federalism at work.

What wasn’t working for leaders of Congress is that they did not like the outcome. And so, in our culture of endless appeals, Congress followed a new rule: If you don’t like the outcome of a proper process, find another forum. House and Senate leaders essentially commandeered the issue to the federal legislative level and, ignoring their lack of jurisdiction, Congress passed a law opening the federal courts to the Schiavo case. This wasn’t even public policy, it was private policy. Imagine now the floodgates that have been opened by this law. Why not ask your congressman to put in a bill making your personal crisis a federal issue?

If violations of federalism were subject to “three strikes” penalties, Congress would be “out.” First they took a matter that belongs to families, individuals and their doctors, subject to state judicial review, and strong-armed it to Washington: strike one. Second, the matter came not to the judicial branch — the U.S. Supreme Court at least has ultimate jurisdiction over state court opinions — but to the legislative branch: strike two. Then they passed a piece of federal legislation that pertains to one individual only: strike three, you’re out.

In their rush to judgment, Republicans in Washington have once again turned their back on traditional federalism, taking it upon themselves to solve every problem, be it education, tort reform or Terri Schiavo’s feeding tube. And as difficult as a “no” vote must have been in this wrenching drama, Democrats showed little backbone in standing up to the stampede, with a majority of House Democrats not voting. Hard cases do make bad law, and Congress and the president have turned their back on federal limits and done just that.

This op/ed appeared on Page B-9.

Losing our fear of the presidency, with Gordon Lloyd (San Francisco Chronicle) March 8, 2005

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It turns out that high-school students are not the only ones who don’t know American history and fail to understand key provisions of the U.S. Constitution. From both the left and the right, we hear a lot of nonsense in support of amending the Constitution to eliminate the requirement that the president be a natural-born citizen. One liberal intellectual calls the requirement an insult to foreign-born citizens and a “small-minded nativist” prejudice unsuitable for modern America. Rep. Barney Franks, D-Mass., says the natural-born clause “tells immigrants they are somehow flawed,” and Rep. John Conyers, D-Mich., believes the provision is left over from a mean-spirited and bigoted time and is “un-American.”

The right, stirred by the star power of California Gov. Arnold Schwarzenegger, adds its share of overheated rhetoric. Lissa Morgenthaler-Jones, who launched the “Amend for Arnold” campaign, claims the natural-born citizen requirement for president is “unnecessary, antiquated, arcane,” and, oh yes, “a tiny bit xenophobic.” Rep. Dana Rohrbacher, R-Huntington Beach, says Schwarzenegger “shouldn’t be cut off simply because he was born somewhere else.”

Pardon us for busting everyone’s favorite myths about the Founders, but the evidence for the supposedly nativist motives behind this clause of the Constitution hangs on one very thin thread: a letter from John Jay of New York, who was not at the Constitutional Convention and not privy to the debates, to George Washington. The record indicates a far more complicated story.

The creation of the presidency was one of the most divisive battles of the Constitutional Convention. Even without the king, there was a widespread suspicion that the danger to liberty at home and peace abroad was an uncontrollable executive. The new state legislatures elected governors who usually held office for one year, and only one governor was given a veto power. Accordingly, the structure and powers of the presidency were contentious issues that were not settled until two weeks before the signing of the Constitution.

Several questions naturally arose: Should he hold office for life or for a short term? Should he be a subject to term limits? Most important, how do we ensure that the president does not become a monarch, an institution that is foreign born and unnatural to the genius of the American republic?

The result was a variety of special constitutional provisions regarding the president: higher age and citizenship requirements, and distinctive oath and impeachment provisions. It is as part of this overall discussion that the natural-born language made its appearance. This requirement lessened the electorate’s fear of the power of the presidency and removed a vital source of potential suspicion in the exercise of presidential war powers.

The debate over the natural-born requirement, then, should not be cast in terms of prejudice against immigrants or equal treatment and protection for all citizens. Rather the debate should be about the more vital issue of the potential abuse of power by the president. The evidence of the last 50 years does not suggest that Americans have become less concerned about the institutional and personal checks on the president. In fact, the record indicates we have even less trust of our own natural-born presidents.

Since World War II, we have amended the Constitution to limit the president to two terms and also to provide for an orderly line of succession in the event of an emergency. We have voted articles of impeachment against two presidents and both the left and the right have expressed concerns about an “imperial presidency.”

So let’s review the requirement that the president be a natural-born citizen, but not in the frame of whether we are biased against immigrants or whether we like Gov. Schwarzenegger. Let’s amend, if we do, because we no longer fear the powers of the presidency as our ancestors did. On that basis, we feel safe in predicting Americans want more checks and balances, not fewer.

This op/ed appeared on Page B-7.

Electoral storm warning, with Gordon Lloyd (Scripps Howard News Service) October 14, 2004

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We take no joy in issuing the following storm warning: Conditions are right for a perfect storm on Wednesday, Nov. 3, the day after Election Day. Winds of political frustration may combine with aggressive campaign lawyers and hyperactive federal judges to blow the presidential election into a morass of litigation and uncertainty.

In a perfect storm, separate weather conditions combine to create a storm of unparalleled strength and fury. Three such political climate conditions are now developing that could well come together the morning after the election. We urge citizens to take cover with a clearer understanding of what the Constitution says about elections and to exercise self-restraint.

One unsettling condition is unprecedented concern about voting variations and methodologies. Some are complaining, even before the election, that battleground states such as Missouri, Ohio and parts of Florida still use paper ballots, while others argue that new voting technologies do not work properly anyway.

Then there’s the fuss about disparate treatment accorded nearly 5 million felons who might vote. Add to these protests about differing state approaches to voter identification and even objections to the Electoral College rendering votes in some states more consequential than others and you have a real storm brewing.

Underlying these pre-election fears is the myth that voting in a federal election should be uniform, a premise not supported by the U.S. Constitution. In fact, the Constitution clearly provides for state liberty–and therefore diversity–and not federal uniformity in voting. The times, places and manner of voting are, under Article I, Section 4, to be set by state legislatures. Congress may intervene if it wishes, but it has consistently deferred to the states.

A second dangerous wind has been blowing in recent years — namely, a growing tendency by federal judges to impose their notions of democracy through aggressive application of the “equal protection clause” of the Constitution. For example, a three-judge panel in the federal 9th Circuit felt California wasn’t ready to carry out a proper recall vote for governor — in spite of the fact that the secretary of state had duly authorized the election — and said the voting could not go forward as scheduled. Fortunately the judges were overruled, but their philosophy — judges decide what is fair and equal — is still blowing throughout the federal court system.

Add to this a third storm center, one that traces its roots to tobacco litigation, hot McDonald’s coffee and the 2000 Florida recount. For the first time, thousands of volunteer lawyers have joined both presidential campaign teams. The old lawyer joke is largely true: A town with only one lawyer has little legal business but, add a second lawyer, and the courts are booming. Lawyers for both sides are already preparing both to attack and defend voting irregularities and defects of every kind, bringing the prospect of unwelcome litigation and delay to the presidential election.

It does not take a great deal of imagination to foresee these three storm systems coming together after the election into a perfect electoral storm. Lawyers for the losing side may be only too ready to bring lawsuits on behalf of plaintiffs who feel that their vote was “unequal” because of how elections were carried out in their state. Federal judges, only too eager to rewrite the rules of democracy, may then hold that state’s election to have violated the equal protection clause of the Constitution, blowing a hurricane of uncertainty across the nation.

How will we escape from the path of this perfect storm? The Constitution provides a safe ground, if citizens, campaigns, lawyers and judges will only heed it. The framers of the Constitution understood that we are both a nation of states and of people, and that we are the United States — not the Uniform States — of America. Voting methodology is a matter left to the states and diversity is both allowed and respected.

If the time has come to consider major electoral reform, there are two proper ways to do it. One is to ask Congress to use its oversight power in Article I to propose greater federal standards in voting. The other is to advance Constitutional amendments that will diminish or even eliminate the role of states in federal voting. Until such a time, we need a period of calm — of self-restraint — to avoid the perfect electoral storm.