Verizon, the NSA, and You

There has been a lot of jaw-flapping in Washington over the past week about the scandalous revelation that the National Security Agency (NSA) is compiling a database of every phone call made by customers of Verizon and several other cellular and land-line phone companies. Republicans in Congress are taking the Obama administration to task for this 'government overreach' spying program that is, apparently, the scandal to end all scandals.

Congressional Selective Amnesia

Listening to the outrage on the Congressional Right, one is quickly reminded of Casablanca's Prefect of Police Louis Renault, who was "Shocked, shocked!" to find that gambling was going on at Rick's Cafe  (while one of Rick's employees was handing him his winnings). This is particularly true of the primary GOP attack dog, Darrel Issa (R-CA), but it also applies to many other members of Congress who seem to have become so senile in their long tenure that they have forgotten that it was Congress that authorized the collection of this data, and the creation of the NSA database.

Darrel Issa was elected to the House in 2000 and began his service in January of 2001. The NSA data collection program was initially part of the Patriot Act, which passed the House on October 24, 2001 by a vote of 357 to 66. Issa voted in favor. The Patriot Act was re-authorized in 2006 - Issa voted in favor again. In fact, this 'great revelation' of the past few weeks is just to much smoke and blather. This exact program was 'exposed' in 2006, in articles published in newspapers across the nation. It has been challenged in court several times. And yet, Darrel Issa and his friends on the Right Wing seem to have been unaware of the program until it's existence was 'leaked' to The Guardian.

So, just to summarize...

• The GOP is attacking President Obama and his administration for this secret NSA data collection program.
• This secret program has been in place since 2004.
• This secret program was made public in 2006.
• This secret program has been challenged in court several times.
• This secret program was authorized by Congress in 2001 as part of the Patriot Act.
• Many of the same people who are up in arms about this secret program were in Congress when the Patriot Act was passed. 
• This includes Darrel Issa
• This does not include Barack Obama.

It really makes one wonder how gullible these Congressmen think we are. But maybe they are banking on the idea that, since they apparently don't remember authorizing this program, maybe voters won't remember it, either.

I will make one more point before moving on: if members of Congress don't like this program, and think that it represents an unconstitutional invasion of privacy, then why don't they act to end it? This program was authorized by an act of Congress, and could therefore be ended by an act of Congress. But to date, our Representatives and Senators seem more interested in the controversy they can stir up than they are with protecting the rights of their constituents. I am interested to see how long it will be before Congress, to paraphrase Mark Twain, stops complaining about the program and does something about it.

But Is This Unconstitutional?

Before Congress acts to end the program, though, they really should examine the legal ramifications of what the NSA is doing. Is this program, in fact, a violation of a person's Fourth Amendment right to privacy? And the answer to that issue boils down to one simple question - who owns the data?

I am a Verizon customer. Verizon provides me a service, for which I pay. In order for them to provide me this service, I first had to give them some information about myself - after all, they have to ship the phone to someone, they have to bill someone, and when I use the phone, they have to know how to connect it. 

When I make a call, Verizon has to know which number is making the call and which number is receiving it. They have to know the location of those two phones in order to efficiently route the call. They need to know the duration of the call, since many plans charge by the minute. Even if your plan does not, Verizon still has a legitimate business reason to retain call duration information - measuring network traffic, identifying dropped calls, planning future upgrades, and routing around bottlenecks are just a few. 

What does Verizon do with this data? Aside from their own internal billing and planning, they can do many other things. They can sell it to advertisers who want to know how many pizzas you order in a year. They can mine it for trends that might indicate a change in your family situation. They can sell new customer information to companies that want to market add-ons, like phone covers with your favorite team logo. They can sell that data to companies like Experian or Equifax that compile real Big Brother data on you. They can report you to credit agencies of you don't pay your bill. In short, Verizon can do almost anything that that data, with our without your permission.

This makes it clear that the data they collect about your phone calls belongs to them, not to you. This is a choice you made when you signed up to be a customer - part of the Verizon service agreement allows them to share information with third parties as required or allowed by law.

To be fair, I want to be clear that this does not give Verizon rights to the content of your calls, the content of your e-mails, the content of your text messages, or the content of files or images that you share across their network - and Verizon is not sharing that information without a specific court order targeting a specific user for a valid reason. The NSA cannot simply demand that sort of data, and they don't. 

So as much as I don't like the idea of my phone records being in an NSA database, I have to admit that the data they collect is not my personal data. Yes, it is data that Verizon collect about my phone usage, but it is not my data, it is Verizon's data, and they can share it as they like and as law demands.

Founder's Follies Issue IX: Ratification Rhetoric

This is the ninth installment of Chredon's analysis of the making of the Constitution, and where the Founders went wrong. For background, see the previous issues:

Issue I: The Founders' World - Historical context of the Constitution

Issue II: The Confederate Period - The failure of the Articles of Confederation

Issue III: Washington and Madison - The Father of our Country and the Father of the Constitution

Issue IV: The Constitutional Convention - The Primary Issues at Philadelphia Convention

Other Topics of Discussion:

Issue V: Bobbing for Senators - Was the Seventeenth Amendment Really a Good Idea?

Issue VI: The Two-Party System - Wise Creation, or Dismal Unintended Consequence?

Issue VII: Reverse Democracy - Should Representatives Choose their Voters?

Issue VIII: Drawing the Line - Alternatives to Partisan Redistricting

I'm going to take a break from issues for a moment to introduce you to some important players who will be entering future Founder's Follies posts - the Federalists and the Anti-Federalists. I am introducing them now because I plan to quote them in the future to give historical perspectives on the Constitution from the viewpoints of the men who had to decide whether to accept it. 

The Fight and the Aftermath

After months of discussion and debate by some of the finest minds in the nation, we finally had a Constitution for the United States of America. It was a beautiful framework for a republican government, built on democratic ideals of freedom and personal liberty. Certainly, everyone accepted it right away.

But, really, no, they didn't.

The Philadelphia Convention ended debate and passed the Constitution on September 7, 1787. It was forwarded to the US Congress (the one running under the Articles of Confederation) to be passed and sent to the states for ratification. 

This set off a firestorm of political writing not seen since the years leading up to the Revolutionary War. Powerful men, many delegates of the Constitutional Convention, many state Governors, and many wealthy landowners began to write and publish papers either in support of ratification, or opposing ratification, or demanding changes to the document before they would support ratification. Those who supported ratification were called Federalists, and those who opposed it called themselves Patriots, though they are commonly referred to today as Anti-Federalists.

Newspapers and publishers spent months printing articles from these two camps, often under assumed names (though we now know who they were.) 

Of course, the Constitution was eventually ratified by all the states. But even after it was, Federalists and Anti-Federalists continued to fight over whether to expand or restrict the power of the new Federal government. They eventually morphed into the first two political parties in the United States: the Federalists, headed by John Adams, and the Democratic-Republicans, headed by Thomas Jefferson. Though neither Adams nor Jefferson were present for the Philadelphia Convention, they both had strong ideas about the powers that should be given to the Federal Government.

The fight over the powers to be given to the Federal government continued unabated, and still continues to this day. But for our purposes, we will take a look at some of the most influential Federalists and Anti-Federalists of the time, in order to understand the attitudes and ideas that shaped the nation in its earliest days.

The Federalists

The three best-known Federalists are John Jay, James Madison, and Alexander Hamilton. These three wrote the most comprehensive series of newspaper articles in support of the new Constitution. Published in the New York Independent Journal and other New York papers, and often re-published in other newspapers outside of New York. these works became collectively known as The Federalist Papers, or simply, The Federalist. 

Alexander Hamilton

Alexander Hamilton was the mastermind behind the plan, and wrote the first issue before inviting Jay and Madison to be his collaborators. The first issue was published on October 27, 1787, barely a month after the end of the Philadelphia Convention. Still, many Anti-Federalists had already begun to publish attacks on the new Constitution, and Hamilton knew that a thorough defense of the new government would be necessary to secure its passage in the key state of New York.

New York had sent three delegates to the Philadelphia Convention but Hamilton is the only one who stayed until the end. The other two, John Lansing and Robert Yates, returned to New York on July 10, 1787 because they opposed the strong Federal government being considered. With those two opposing ratification, Hamilton believed that it would be difficult to gain approval for the Constitution in New York. Given that New York was the seat of the government in 1787, having that state refuse the Constitution would have been a signal to many other states that the new governmental structure was unacceptable. If New York rejected it, other states would follow.

James Madison

Hamilton also knew that they had to act quickly. Some states might reject the new Constitution before the public debate could even get underway. He recruited James Madison and John Jay, both of whom were in New York. Jay was the Confederation's Secretary of Foreign Affairs (equivalent to our current Secretary of State) while Madison was one of Virginia's delegates to the Confederation Congress. Writing under the pseudonym Publius, they published seventy-seven Papers in 160 days between October 27, 1787 and April 4, 1788, a pace of about three per week. This feat is all the more impressive when you consider that Jay grew ill and only wrote five.

John Jay

There were Federalist writers in other states as well. James Wilson and Benjamin Franklin wrote and spoke in support of the Constitution in Pennsylvania. Wilson, in fact, presented one of the first public speeches in support of the Constitution within a month of its passage. His speech to the Pennsylvania Assembly was printed and widely distributed, and became the text to which most Anti-Federalists referred when attacking the Constitution. 

Perhaps most important of all, George Washington was in favor of the Constitution, and Washington was the most widely-respected man in the entire United States. Virginia being the most populous state, Washington's support of the new Constitution was vital to its passage there. Washington sent copies of the new Constitution to the the three most recent governor's of Virginia, urging their support. He spent many of the days between its passage and its ratification writing letters to important men all over the United States. But when the time came for debate in the Virginia legislature to approve or reject the Constitution, Washington did not attend. He left the debate in support of the Constitution in the hands of James Madison, who returned to Virginia to defend it. In his letters, Washington admitted that he did not consider the Constitution a perfect document, but he had confidence that it would be amended quickly should it show any shortcomings.

The Anti-Federalists

There is a common misconception that the Federalists were mainly in the north, Anti-Federalists in the south. This is not true, and is probably a projection of the attitudes of our own times onto history. Anti-Federalists were all over the nation. 

Robert Yates

One of the most prolific ones was Robert Yates, a New York judge who had been one of the delegates to the Philadelphia Convention. A native of Albany, Yates was a member of the New York provisional governments during the Revolution. He was an early and vocal critic of the Stamp Acts, and while he did not serve in the army, his participation in the Committee of Correspondence helped to secure American independence. He was one of the men who drafted the for Constitution for the state of New York, and later served on the New York Supreme Court, eventually becoming its Chief Justice.

I give this background so that it is clear that Yates was a patriot, solidly in support of American liberty and dedicated to the new nation that he helped to bring into existence. Like the other Anti-Federalists, Yates believed that his stance against a more powerful central government was key to America's success. He was not seeking, though opposing the Constitution, to harm or destroy the nation. He firmly believed that the powers given to the Federal government under the Constitution would allow it to subjugate the states and oppress the citizens. 

Yates wrote sixteen Anti-Federalist papers under the pseudonym Brutus. He chose Brutus because it was Brutus who opposed raising Julius Caesar to be Emperor and destroying the Roman Republic. (Hamilton had chosen Publius as a man who had established the Roman Republic, and Yates was sure that the Constitution would not create an American republic, but destroy one that already existed.) To sum up Yates' argument against the Constitution (and that of many other Anti-Federalists), it is this. Under the Constitution, the Federal government has the power to act in the common defense and promote the general welfare. It has the power to make any laws that it deems necessary and proper in order to execute those acts. It has the power to collect duties and taxes in order to carry out those act. And the laws made at the Federal level are the supreme laws of the land, taking precedence over the laws of any state or locality. Within those strictures, the limitations of the enumerated powers notwithstanding, there is nothing that the Federal government cannot do. He believed that whatever power the Constitution allowed men to take, they eventually would take.

Richard Henry Lee

Another series of papers published in New York were written as a series of letters from a person who signed as A Federal Farmer. These letters were addresses to The Republican, who was thought to be Governor George Clinton of New York even though Clinton was an Anti-Federalist himself. The author of these papers is not confirmed, though many scholars believe they were written by Richard Henry Lee, who was at the time a delegate to the US Congress from Virginia . Others believe they were written by Melancton Smith of New York, and still others believe they may have been a collaboration between the two.

Richard Henry Lee was also a great patriot. It had been he who first presented a resolution on American Independence to the Second Continental Congress, leading to the Declaration of Independence. which he eventually signed. He established the first Committees of Correspondence in Virginia, and penned the Leedstown Resolve, an accord between landowners to oppose the Stamp Act, to refuse to pay any tax that was not passed by an act of Parliament, and to oppose any troops who might come to enforce British laws that were made in violation of the British Common Law. Many of the points made in the Declaration of Independence had been part of the Leedstown Resolution.

Patrick Henry

The great Virginia orator Patrick Henry was also strongly against the Constitution, on the basis that the powers given to the Federal government would diminish and eventually destroy the government of the states. Patrick Henry is best known for his stirring "Give me Liberty, or give me Death" speech, which prompted the Virginia government to allow its troops to leave the state in order to participate in the Revolutionary War. This act set George Washington and the Virginia militia free to assist New England states in opposing the British. 

Henry served as Governor of Virginia for many years, so his opinion carried great weight in the Virginia legislature. Henry was not much of a writer, so we have scant records of any of his speeches. But he was a prominent member of the Virginia Ratifying Convention, opposing James Madison at every turn. Thus, one of the best records of his opposition to the Constitution is preserved in the record of the Ratifying Convention, during which Henry made many speeches pointing out flaws in the Constitution and calling for a Bill of Rights to be added before it was ratified.

Anti-Federalists were writing and publishing in nearly every state:

New York Governor George Clinton penned a series of papers using the pseudonym Cato. These papers appeared very early after the Philadelphia Convention, and it is assumed that Hamilton began writing the Federalists Papers to oppose Cato's work.

James Winthrop, a probate register in Middlesex, Massachusetts, wrote a series of letters under the name Aggrippa.

The Philadelphia Independent Gazetteer published papers under the name Centinel, which are believed to have been written by Samuel Bryan, son of an Pennsylvania Supreme Court justice, and Eleazer Oswald, the publisher of the Gazetteer.

All of these men who opposed the Constitution were prominent figures in the Revolution. They had all worked, fought, and dedicated "their lives, their fortunes, and their sacred honor" to the defense of American liberty. But they were also men who understood their states to be sovereign nations, having but recently won their independence from a foreign foe. Before they would accept the new Constitution, they needed to know that they were not simply giving away the rights and freedoms that they had fought so hard to secure.

The Education of the Junior Senator from Texas

Today, at a hearing of the Senate Judiciary Committee on guns, Ted Cruz, the junior Senator from Texas, posed this question to Madame Chairman Senior Senator from California Dianne Feinstein:

"The question that I would pose to the senior Senator from California is, would she deem it consistent with the Bill of Rights for Congress to engage in the same endeavor that we are contemplating doing with the Second Amendment in the context of the First or Fourth Amendment, namely, would she consider it constitutional for Congress to specify that the First Amendment shall apply only to the following books and shall not apply to the books that Congress has deemed outside the protection of the Bill of Rights? Likewise, would she think that the Fourth Amendment's protection against searches and seizures could properly apply only to the following specified individuals and not to the individuals that Congress has deemed outside the protection of the Bill of Rights?"

DiFi took him to task on this question, but let me make my own response here.

I would hope that the junior Senator from Texas would be aware that not only is it Constitutional for the Congress to declare certain restrictions on the freedoms guaranteed under the Constitution, it has done so many times since the founding of our Republic, and those restrictions have been upheld by Supreme Courts for over two hundred years.

You mentioned the First Amendment, which among other rights guarantees the freedom of speech. As you should know, Senator, there are laws that do limit that freedom. You do not have freedom of speech if you are inciting a panic in which people might be harmed. You do not have freedom of speech if you are encouraging others to commit crimes. You do not have freedom of speech if you are publishing pornographic images of children. You do not have freedom of speech if using an amplifier on an suburban cul-de-sac at 3:00am. 

The First Amendment also guarantees freedom of the press. As you should know, Senator, there are laws that limit that freedom. The press is not free to defame a man's character by telling lies about him. The press is not free to encourage others to commit crimes. The press is not free to slander a person in hopes of destroying their reputation or enterprise. The press is not free to distribute pornography to minors.

The First Amendment guarantees the right to peaceably assemble. As you should know, Senator, there are laws that limit that freedom. No matter how peaceable you are, you do not have the right to assemble a large crowd on the Roosevelt Bridge at rush hour. You still need a permit to hold a parade, no matter how quiet it may be. You may not freely assemble in your local police station, or on any private property, or inside the fence at 1600 Pennsylvania Avenue.

You mentioned the Fourth Amendment, which guarantees the right to be secure in your person and your home. As you should know, Senator, there are laws that limit that freedom. A judge can issue a warrant and your home and person can be searched against your will if you are reasonably thought to have committed a crime. A police officer at your door can kick it open and enter if they hear someone inside crying to help. They can pull your car over and search it if they have probable cause to do so.

So you see, Senator, every right that you mentioned is already restricted by law. If you paid attention, you would see the pattern here. We, as citizens, are granted individual rights and freedoms. But always, we have to guard against those freedoms being abused to the point that they infringe of the freedoms of others, place others in potential harm, or place the public safety at risk. When those situations arise, this Congress has the power, the right, the Constitutional authority, and the responsibility to act - to protect our citizens from the ways in which others may abuse their rights. If one may not shout "Fire" in a crowded theater, is it not obvious that one should not fire an assault rife there?

So, to answer your question, Senator, if I would place restrictions on other Constitutional rights, I reply to you, sir, that we already have done so, and we did it for damned good reasons. And if you were as much the Constitutional scholar as you seem to think you are, you would have already known that.

Now, are there any other areas of Constitutional law in which the junior Senator from Texas requires education?

The Inevitability of the Unlikely

This was originally posted to the now-defunct Thursday Think Tank Blog by Garbanzo

Do you remember anything from that statistics class you took years ago? If you do, it's probably the "bell curve", aka the "normal distribution". That's a good thing to remember, because the bell curve is a really useful tool for understanding some aspects in the real world. If you were really paying attention, you remember all that stuff about mean and standard deviation, and maybe even skew and central limit theorem.

Attack of the 50 ft woman!

Like me, I'm sure you're concerned about the possibility of a gigantic swimsuit clad supermodel rampaging through our cities. After all, it's happened twice in the movies, once in 1953, and again in 1993. Just how likely is this scenario? Let's look at the height of women, over the age of 20. The statistics are based on the U.S. National Health Statistics Report - October 22, 2008.

As you can see the average height of adult females is around 64 inches, or about 5'4". The laws of statistics tell us that 99.7 percent of women will be between 4'3" and 6'4". Well, what do you suppose the odds are of a woman being 20 feet tall? See if you can find it on the graph - that's about 243 inches. (50 ft didn't fit)

That's right - the chances are infinitesimally small (around 1.0E-399). So, what are the chances of being attacked by a 50 foot woman - zero actually. There are real biological reasons that a human can't grow to be 50 feet tall. She would collapse and suffocate under her own weight. Maybe the 50 foot woman could live in the ocean, eating krill and sticking her nose out of the water to breathe. Water might support her colossal mass like it does for whales, but she could not survive on land. In any case, she wouldn't be much of a menace. 

Like many natural systems systems constrained by biological and physical limits, human height matches the bell curve pretty well

Why Volkswagen was the world's most valuable company: for a few minutes.

Some things don't fit well under a bell curve. There are lots of examples, including executive compensation, attendance of rock concerts, and lottery payouts. What these examples have in common is that a few rare events have an unprecedented impact.

A good example is the stock price of the German auto company Volkswagen. In early 2008, the company stock was trading for around €120 a share. The executives at rival German auto maker Porsche, decided to  take control of Volkswagen. They started by buying all the VW stock they could get their hands on. They also bought stock options to guarantee a reasonable price for shares once the news of the takeover became public. Porsche acquired 43% of all VW stock, and had options for another 32% - controlling a total of 75%. Another 20% was not for sale - leaving only 5% of VW shares on the market.

Stock options are complicated, but allow me to simplify the problem: Options are a type of contract promising to sell stocks in the future, for an agreed price. The seller doesn't have to own any shares when they sell the option - it's just a promise. Some of these sellers are betting that they can buy the stocks in the future more cheaply than they can now. They can make a lot of money if prices go down - or lose a lot if they go up.

Here's how it all went crazy: Porsche called up the people who owed them options, and said  "Gib mir meine Bestände!" ("Give me my stocks, now!" ) The option sellers had to rush out and buy 32% of all VW stock - oops! Only 5% of the stock was for sale. This is called a "short squeeze".

Price history of Volkswagen shares (VOW). Hint: This is not a bell curve.

The buyers were desperate; sellers raised prices - the price shot up to over €1000 a share for a few minutes. Guess who had the most stock to sell? Why Porsche, of course. Porsche sold €1000 shares to the option sellers, so the option sellers could sell it back to them for €120 a share. Not a bad deal for Porsche Automobil Holding SE. (Ironically, some options traders had to sell their Porsche and buy a Volkswagen.)

Life in Mediocristan and Extremistan

The height of women, and the price of VW stock are examples of what economist Nassim Nicholas Taleb  humorously refers to as Mediocristan and Extremistan. These two fictional countries represent the predictable world of things like height, and the insanely unpredictable world of stock prices.

Map of the "Stans"

In Mediocrastan, everything fits under a bell curve. In Mediocrastan rare events are rare - and when they do occur, they can be explained. Yao Defen of China is seven-feet-eight-inches tall. Despite being the tallest woman in the world she belongs in Mediocristan. She she is a mere 90 inches on our graph above (+5 sigma).

Residents of Extremistan include Bill Gates and the price of VW stock on October 23, 2008, and most lottery grand prize winners. Bill Gates is has a net worth of $63 Billion, as compared to the mean U.S. net worth of $556,300*. If Bill Gates's height were proportional to his wealth, he would stand at a height of about 100 miles.

"In Extremistan, rare events are common"

How can this be? Any single rare event is, by definition, rare. But when you take all the possible rare events that can occur, chances of one of them occurring are high. For example, the odds of being struck by lightning are 1 in 280,000. The odds of being killed in an air-crash are 1 in 335,000. Both are pretty long odds. But, when you also add in the possibility of being eaten by a shark, hit by a meteor, bit by a black mamba, eaten by piranhas, run over by a bulldozer, and a thousand other rare events, the odds start adding up.

You probably knew someone who was killed by a rare event - maybe several. The odds of that event were tiny, but given all the possible rare events, and all the people you have known, the chances are pretty high.

Useful information:

• Rare events are common, you just never know which event!
• Options trading is riskier than you may think
• The bell curve does not apply to everything
• Bill Gates is 100 miles tall, financially speaking

Congratulations you're one of those rare people who can read a whole blog post about statistics. Many of the ideas in this post are misrepresentations of The Black Swan: The Impact of the Highly Improbable, by Nassim Nicholas Taleb

*$556,300 is the average U.S. net worth, including Bill Gates and Warren Buffet. Median is $120,300.

Founder's Follies VIII: Got to Draw the Line Somewhere

This is the eighth installment of Chredon's analysis of the making of the Constitution, and where the Founders went wrong. For background, see the previous issues:

Issue I: The Founders' World - Historical context of the Constitution

Issue II: The Confederate Period - The failure of the Articles of Confederation

Issue III: Washington and Madison - The Father of our Country and the Father of the Constitution

Issue IV: The Constitutional Convention - The Primary Issues at Philadelphia Convention

Other Topics of Discussion:

Issue V: Bobbing for Senators - Was the Seventeenth Amendment Really a Good Idea?

Issue VI: The Two-Party System - Wise Creation, or Dismal Unintended Consequence?

Issue VII: Reverse Democracy - Should Representatives Choose their Voters.

In Issue VII, Reverse Democracy, we looked at Gerrymandering - the process by which our State Legislatures get to decide who will represent us in the US House by drawing Congressional districts for partisan victories. This was, perhaps, an oversight on the part of the Founders. 

The question remains - can this be fixed?

Well, it could be fixed. It would not require a Constitutional amendment to get rid of gerrymandering for seats in the House - all it would take is for the House to either stop requiring single-member districts (leaving the states free to experiment with other options for electing Representatives) or for them to change the rules by which such districts are drawn so that they can no longer be drawn for partisan advantage. But don't count on Congress to do what is necessary to fix it. After all, gerrymandering protects the incumbents. You shouldn't expect them to change the rules to their own detriment.

Nor would I bet on a Constitutional Amendment to fix it. It would require two-thirds of both Houses of Congress to pass the Amendment. If you can't get a simple majority to change the rules, I doubt you can get a two-thirds super-majority to do so, either. And as for calling a Constitutional Convention, no thanks - nobody wants to open that can of worms.

However, the Constitution may contains the wording needed to get a Supreme Court ruling to end partisan gerrymandering. In Article I, Section 2, we find this:

The House of Representatives shall be composed of members chosen every second year by the people of the several states

I think a case could be made that partisan gerrymandering violates this wording, since the vote of the people is pointless when the state legislatures have already chosen the party that will win the district. Sadly, no group is attempting to challenge gerrymandering on these grounds.

The Fourteenth Amendment, Section 1, says this:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States

I think it could be equally argued that partisan gerrymandering is a case of the states enforcing a law (specifically, the Apportionment Act of 1967) that abridges the privileges of the citizens. Whether either of these is a legally-valid argument is a question for lawyers - I have no skill at counting the angels that dance on the head of a pin. But I would certainly like to see someone (the ACLU, perhaps) give it a try.

But if we take away Congress' power to decide how districts must be drawn, to whom should it be given? One suggestion would be to leave it in the hands of the states themselves, which, of course, was the original intent of the Founders.

Unfortunately, if we leave the apportionment process in the hands of the states, the leaders of the state parties will use it for partisan advantage in ways that might be even worse than our current system. For example, a state with a 60% majority for any party might choose to elect every Representative in a state-wide at-large vote. That would nearly guarantee that all of that state's representatives would be of the majority party and the 40% of voters from other parties would be totally unrepresented. States that had a more balanced electorate might use our current system. But none would choose a system that might give a third party a chance to win a seat, or that would guarantee that representation in Congress was proportional to that of the population.

So this is a situation in which we must be very careful. The solution to the current gerrymandering problem could be worse than what we have now.

What Are the Options?

The United States is not the only nation to have faced this issue. Many groups in the US advocate for methods that are used in other countries. Some propose new ways of drawing districts. Other do away with districts altogether. In the best methods, the goal is to have Congress match the electorate in terms of partisan participation. (If 10% of voters are Libertarians, 10% of the House should be Libertarians.)

Here are a few changes that have been proposed.

Different Voting Methods

Cumulative Voting: There are no districts. All people running for Representative are listed together on the ballot, and voters get a number of votes equal to the number of candidates. They can put as many votes on each candidate as they like - spread them out or concentrate them all on one. Votes are counted and the top recipients get the seats.

Single Transferable Vote: There are no districts. All candidates are listed together on the ballot, and voters choose their top N candidates in order, where N is the number of open seats. Each candidate needs to receive a number of votes equal to the number of voters divided by the number of seats. Everyone's top choice is counted. If any candidates receive more votes than needed, their remaining votes are split among the #2 candidates on the ballot by the proportion of their appearance. This is repeated until splitting a winning candidate's excess votes no longer creates a new winner. Then, you take the candidate with the fewest votes and distribute them to the highest-choice candidate who is not already a winner. This method of voting is used in many places around the world.

The problem with these two ideas is that in a state like California, where there are 53 Representatives, it would be unreasonable to expect voters to know enough about 200 or more potential candidates to make an informed choice. Also, in states like New York and Illinois, where one major city holds the vast majority of the state population, city voters would take a disproportional number of seats, leaving rural voters unrepresented.

Different District Allocation Methods

If we don't want to radically change the voting method, then the alternative is to change how we draw the districts. Since I used North Carolina's 12th district as an example of bad gerrymandering, I'll use NC as the examples below. For reference, here are the current districts.

  

Shortest Straight Line: Since NC has 13 Congressional Districts, the state is divided, using the shortest straight line possible, such that 7/13ths of the population is on one side and 6/13ths on the other. Then each of these regions are divided, again using the shortest straight line possible, and again and again, until you have a number of equally-populated regions. Here is the result, courtesy of Range Voting :

Minimum Centroid Distance: The state is divided into districts such that the total distance of each person in the state to the center of their district is minimized. Here is the result, courtesy of Brian Olsen's Redistricting:

The problem with these two methods is that the districts created will often divide even small communities into two or more districts, denying the idea of people with similar local interests voting for the same candidates. (This is a problem with the current system as well.)

Fewest Split Counties: In this method, the result that splits the fewest counties is selected. Since there will obviously be multiple options, you choose the one that splits a county most evenly. Here is an example, courtesy of Daily Kos:

Here is another that I drew myself using Dave's Redistricting Application.

FairVote.org proposes a hybrid system, where larger states are divided into regions with similar numbers of representatives (up to 5) and then does a Single Transferable Vote process within the regions. Here is a suggestion of how NC might be divided into regions:

In this plan, the eastern and western regions receive four Representatives each, while the center section, which contains the densely-populated Charlotte, Raleigh, Durham, and Greensboro metro areas receive five. All three mega-districts have recent voting records in which neither party received more than 58% of the vote, which leads to a greater chance the vote will be split 7/6, which is in line with the state's 53/47 partisan split. (Current gerrymandered districts split the state 10/3 with no swing districts at all.)

As you can tell by the descriptions, none of these methods take partisan factors into consideration. Districts are either drawn by a computer algorithm and left as they are drawn, or drawn based on county divisions. In either case, they are drawn without regard to partisan considerations.

In Conclusion

With apologies to Patriot, Governor, and Vice-President Gerry, your accidental namesake is one of the banes of the nation. The idea that membership in the House of Representatives should be chosen by the Representatives themselves, working through their allies in the states, is reprehensible and goes against every ideal of democratic government. Solutions exist, but convincing our current Representatives to take advantage of them will be difficult, given that the current plan protects incumbents.

Chredon would like to acknowledge the contributions of FairVote.org for background information on this article and Dave's Redistricting Application for the maps drawn and included above.

Founder's Follies VII: Reverse Democracy

This is the seventh installment of Chredon's analysis of the making of the Constitution, and where the Founders went wrong. For background, see the previous issues:

Issue I: The Founders' World - Historical context of the Constitution

Issue II: The Confederate Period - The failure of the Articles of Confederation

Issue III: Washington and Madison - The Father of our Country and the Father of the Constitution

Issue IV: The Constitutional Convention - The Primary Issues at Philadelphia Convention

Other Topics of Discussion:

Issue V: Bobbing for Senators - Was the Seventeenth Amendment Really a Good Idea?

Issue VI: The Two-Party System - Wise Creation, or Dismal Unintended Consequence?

Elbridge Gerry

 This article is devoted to Founding Father Elbridge Gerry. Largely forgotten to history, Elbridge Gerry had quite an illustrious career as an early patriot and legislator. He used his personal wealth and connections to supply the Continental Army as it held Boston under siege. He is one of only six men who were present for both the Second Continental Congress, during which he signed the Declaration of Independence, and the Philadelphia Convention, during which he helped draft the Constitution. He was instrumental in the creation of the Bill of Rights, primarily by refusing to sign the Constitution until after the Bill had been attached. He later went on to serve in the House of Representatives, as Governor of Massachusetts, and as the fifth Vice-President of the United States under James Madison.

But in our modern politics, his name is remembered mostly for one thing - gerrymandering.

The Gerry-mander

In 1812, while he was Governor of Massachusetts, the legislature of that state drew some controversial Congressional districts designed to give more Representatives of Gerry's Democratic-Republican Party while leaving fewer for the Federalist Party, despite the population being almost evenly split. A Federalist-leaning newspaper published a famous picture of one of the districts which wound through the northern and western edges of Essex County and resembled a salamander. The paper dubbed it the 'Gerry-mander,' though there is no evidence that Governor Gerry had any hand in drawing the lines. It was still a fairly radical idea, and the Federalists used attacks on the process to oust Gerry in the next election.

(Historical Note: Governor Gerry's last name is pronounced with a hard G, as in Golf. Our modern pronunciation of the word 'gerrymander' tends to use a soft G, as in Giant.)

I titled this Founders' Follies issue Reverse Democracy because that is what gerrymandering is. In a representative democracy, such as we theoretically have here in the USA, voters are supposed to choose their representatives. Gerrymandering makes it possible for representatives to choose their voters. This is done in practically every state in the Union, since it allows the political party that holds a majority in the state legislature to align the state's districts in order to give advantages to their party in the House of Representatives. Gerrymandering is also used in the apportionment of state representatives' districts, thereby guaranteeing continued party majorities in the state legislatures.

The impact of this process is that the vast majority of Americans don't really have any choice in who represents them in the House. According to FairVote.org, of the 435 House seats, 195 are safe for Republicans, 166 are safe for Democrats, and only 74 are really in play. The same is true for any state that has districts drawn for elections of state representatives. Unless you are one of the 15-20% of voters who live in a swing district, your vote is pointless. And with every passing census, the ability to draw safe districts increases as computer technology advances and information about individual households becomes more readily available to partisan redistricting efforts. (After the 2000 census, there were 89 swing districts, fifteen more than today.)

But wait, you say. Doesn't the House change hands every few years? It may seem so in the past election or two, but historically, it does not change that often and it usually takes a seismic event to turn it. Since 1900, control of the House has changed 10 times out of 57 elections. In the history of the United States, through 112 Congresses, it has changed 26 times. And the pattern is clear - there are long periods of single-party control, broken up by several back-and-forth elections as policies and parties are in flux. Except for the 80th and 83rd Congress just after World War II, the Democrats controlled the House from 1931 until 1995. Since the Civil War, House control has changed hands only 14 times.

Brief Description of Gerrymandering - Skip if you are already familiar

(NOTE: I updated this from my original. I found a brief and very clear description of the process at electoral-vote.com that was much better than my original.)

Here is a brief primer on how the process works.

Imagine a state with 1.5 million Democrats and 1.5 million Republicans and 6 seats in the House. A fair map would be something like this, with 250,000 Democrats and 250,000 Republicans in each of the six districts. Each icon represents 100,000 voters.

But a Republican legislature that wanted to maximize its representation in the House might draw the boundaries differently, for example like this.

In this map, districts 1-5 have 300,000 Republicans and 200,000 Democrats, so the Republican candidate can probably win, assuming he doesn't spend the whole campaign talking about rape. But we have 500,000 Democrats left over, so they get stuffed into district 6, which probably needs a strange shape to include them all. If the map looks like this, the Republicans can easily win five of the districts and won't bother to even field a candidate in district 6. With voting totals available on a precinct level, computer software can produce statewide maps that maximize the partisan advantage for one side. Here are some actual district maps drawn in 2010.

Illinois Congressional District 4, which includes a narrow strip of land along I294, creates a majority-Hispanic district.

North Carolina District 12, which winds across the central portions of the state,  to create a predominantly liberal African-American district.

California District 23, which winds along the Pacific coastline, creates a district with an extremely high proportion of Democrats, allowing multiple Republican districts inland.

These are only a few of the more oddly-shaped districts. Gerrymandered districts don't have to look so crazy, though. Some highly-partisan districts look perfectly sane.

The Problem with Gerrymandering

The main issues that people have with gerrymandering are:

1. It disenfranchises voters by making elections meaningless. The winner is chosen by the party who drew the districts, not the citizens who cast the votes.
2. Voters feel powerless. After all, why bother to vote if the outcome is already chosen?
3. Incumbents are nearly impossible to remove, no matter how bad they are.
4. Districts do not reflect groups with common interests.
5. Districts are drawn without regard to existing political structures, like counties or cities.
6. The partisan make-up of Congress does not match the partisan make-up of the people.
7. Third party candidates have no chance of winning.

Is this a Founder's Folly?

Did the Founders make a mistake? That's hard to say. Their only mistake is that they did not anticipate the strength of national political parties nor did they see how the institutions as they created them would inevitably lead to a two-party system. Madison believed that in a nation so wide and diverse, it was practically impossible that any party would ever emerge that was not regional in nature. Given that they were so far apart, these regional parties would never have common-enough interests that they would ever combine. Thus, no national parties would ever emerge. Madison said:

The lesson we are to draw from the whole is that where a majority are united by a common sentiment, and have an opportunity, the rights of the minor party become insecure. In a Republican Government, the majority if united have always an opportunity. The only remedy is to enlarge the sphere, and thereby divide the community into so great a number of interests and parties, that in the first place a majority will not be likely at the same moment to have a common interest separate from that of the whole or of the minority; and in the second place that in case they should have such an interest, they may not be apt to unite in the pursuit of it.

This is one of the few times when Madison was dead wrong. He did not envision the 'common interest' of controlling the national legislature as something parties might desire. You don't need nation-spanning cable TV networks to form a national party. In fact, Madison was ignoring the nation's recent history. Had the United States not just won a war against Britain that was begun because small groups of like-minded patriots were able to organize all across the continent?

Another problem is that the House has the power to tell the states how they are to handle elections - though they were never supposed to use it except in extraordinary circumstances. Article I, Section 4 of the Constitution states:

The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.

This really is the key phrase of the Constitution where the redistricting process is concerned. The Constitution gave the state legislatures the power to choose how their Representatives would be chosen, but then gave Congress the power to pass laws to override the states' plans. And override them they did. Apportionment Acts began as early as 1790. (In fact, the Apportionment Act of 1790 was the first bill to be hit with a Presidential veto.)

According to Alexander Hamilton In The Federalist Papers, #52, the goal of the construction within the Constitution was to give the power of selection to the states, with the national government given power to overrule the states in those cases where their method of selection was harmful to the Republic.

A discretionary power over elections ought to exist somewhere. It will, I presume, be as readily conceded, that there were only three ways in which this power could have been reasonably modified and disposed: that it must either have been lodged wholly in the national legislature, or wholly in the State legislatures, or primarily in the latter and ultimately in the former. The last mode has, with reason, been preferred by the convention. They have submitted the regulation of elections for the federal government, in the first instance, to the local administrations; which, in ordinary cases, and when no improper views prevail, may be both more convenient and more satisfactory; but they have reserved to the national authority a right to interpose, whenever extraordinary circumstances might render that interposition necessary to its safety.

According to Madison's notes on the Constitutional Convention, the only reason that the House was given any power at all over the methods by which the election would be conducted was to prevent abuse that might arise should the state decide to choose Representatives in some way that violated the will of the people. Madison himself said:

The legislatures of the states ought not to have the uncontrolled right of regulating the times, places, and manner, of holding elections. These were words of great latitude. It was impossible to foresee all the abuses that might be made of the discretionary power. Whether the electors should vote by ballot, or viva voce, should assemble at this place or that place, should be divided into districts, or all meet at one place, should all vote for all the representatives, or all in a district vote for a number allotted to the district,—these, and many other points, would depend on the legislatures, and might materially affect the appointments.

Madison did, however, note that it seemed to make no sense to question the ability of the state legislatures to properly devise the method by which Representatives would be chosen while at the same time trusting them to select Senators and to devise methods of choosing Electors for the office of President.

This provision, then, was to be a fail-safe measure to prevent the states from doing something that violated the spirit of Republican democracy. There were several nightmare scenarios suggested, such as a state simply not holding elections at all, in effect withdrawing from the Union. Or a state might decide that all votes had to be cast in person at a single meeting, which would be held in the most populous city of the state, thus guaranteeing that one city the majority of the representatives.

But the provision was almost immediately used, not as a fail-safe, but as a way for the national legislature to impose regulations and restrictions on state elections that today violate the spirit of Republican democracy. Early attempts to do so were challenged, but upheld by the Supreme Court. This is one of many cases where the letter of the law is not in keeping with the spirit of the law, and the letter of the law won out.

Thus, the House would pass, with each Census, rules covering the apportionment of the House members. In some years, single-member districts (such as we have today) were mandated. In other years, there were no districts and all states were free to elect their Representatives however they wanted. In some years, laws required districts to be contiguous or to have equal population. These went back and forth often. It was not until 1967 that Congress passed the laws by which districts are currently allocated, requiring contiguous borders, equal population, and some districts drawn for the purpose of gaining racial parity in Congress equal to the state population.

(FairVote.org has a brief history of the legislation around creating Congressional Districts and its impacts.)

While Madison and the Framers couldn't envision the power of national parties and how gerrymandering would subvert the electoral process, even the Congress of 1967 could not envision the power of today's computing systems and the massive amounts of data on individuals available to them. Gerrymandering has become much more of a science than an art. With the House requiring single-member districts and the states free to draw them as they wish, the status quo could remain with us indefinitely.

In the next issue, Got to Draw the Line Somewhere, I will take a look at some potential solutions for the gerrymandering issue and how they could be implemented.