DRAW!

“I guess Trump is really worried that the Republicans might lose the House of Representatives next year,” I said. 

“What makes you say that?” Socrates asked as he downed a link sausage. This conversation took place during one of our Saturday breakfast meetings. 

“He’s asking the Texas legislature to redraw the House districts so their state will have five more Republican Representatives than it would under the current plan,” I said, laughing at the cheek involved in such a request. [1]   

Socrates shook his head. “Imagine politicians not believing in democracy,” he said with sarcasm. “Are they going to do it?” 

“They’re thinking about it. But there’s some concern that it might backfire on them. They may have made Texas as Republican as they can.” 

“Well, once again, we gain some insight into the integrity of our political class. I don’t suppose the Democrats are too happy about it.” 

 

“Gavin Newsom, the governor of California, is saying that his state should do the same thing in order to increase the Democratic representation from California.” [2] 

“That seems like a reasonable response.” 

“Why? Don’t you think it’s a little hypocritical?” 

“No. Why do you say that?” 

“Aren’t the Democrats always saying that we should get rid of gerrymandering?” 

“I don’t know if that’s true. They certainly have engaged in gerrymandering in the past. But let’s suppose you’re right. Why would it be hypocritical for them to fight fire with fire as Governor Newsom suggests?” 

“Maybe they should stick to their principles.” 

“But can’t you see that would put them at a permanent disadvantage? If Democratic states draw fair districts while Republican states freely engage in gerrymandering, won’t that distort the outcome of elections?” 

 

“I suppose. But maybe if they don’t engage in gerrymandering, others will be inspired to follow their good example.” 

At that Socrates laughed out loud, while I simultaneously realized how ridiculous my last statement was. “That would be a sight,” he said, “politicians being inspired by an example of virtue.” 

“Okay, okay,” I replied. “That was stupid. But if most people agree that gerrymandering is a bad thing, why can’t we get rid of it?” 

“Most people probably think gerrymandering is a sordid practice, but I don’t think the majority of the political class thinks so. To them, winning is everything. If we had ballot measures on the federal level we probably could get rid of it fairly quickly. But we don’t. So we’re stuck with whatever the politicians give us.” 

“Can’t the Supreme Court do something? It seems like it would be a violation of Equal Protection.” 

“You’d think. But they recently punted on the issue because they couldn’t think of a rule that would cover every possible situation. They forgot they are a court, which is supposed to decide the case in front of it, rather than a legislature, which does try to conceive of every situation to which a statute might apply.” [3] 

“And I don’t suppose the Congress can do anything.” 

“It has the power. But it would have to be populated with a sufficient number of people with high enough ideals. And they’d have to have enough to overcome a Senate filibuster.” 

“Well, that’s bleak. How did we get here?” 

“Like most of our political problems it can be traced to political parties. After all, gerrymandering is designed to give one party an advantage over the other.” 

“Well, I’m at a loss. How can we fix this?” 

“Before we get to that, would you agree, based on what we’ve said so far, that gerrymandering is something that has to be dealt with on a national level? After all, if some states get rid of gerrymandering and others do not, the states that don’t would provide an outsized advantage to their majority parties.” 

“That’s true. But what about individual citizens? We’re thinking in terms of political parties, and fairness to them. But if gerrymandering is allowed won’t members of the minority party in their state be unduly disadvantaged with respect to their representation?” 

“Of course. But let’s be realistic. Do Representatives in the House really represent their districts? Or is it more the case that they represent their political parties, most of them taking orders from their party leadership on how to vote?” 

“The latter.” 

“So, with that grim fact in mind, let’s consider whether the individual voter you are concerned about is really being disadvantaged. Won’t his party get more representation in another state where it is in the majority than it would if districts were drawn fairly?” 

“Yes, since every state would be gerrymandering to the same extent according to our hypothetical.” 

“Exactly. So the disadvantage that minority voters have in one state would be balanced out by states where their party is in the majority. I don’t know if the balancing would be precise, since states have differing populations, and some would be better at gerrymandering than others. But if we’re going to permit gerrymandering, and it seems that will be the arrangement for the foreseeable future, states that gerrymander will have an advantage for their majority parties over the majority parties in states that do not. Am I right?” 

“I can’t argue with that.” 

 

“So, can you see how Governor Newsom’s response is a rational one?” 

“I can. But there’s something about all this that bothers me. Why is our political class so indifferent to fairness in voting?” 

“Surely you are aware that politicians and political parties represent specific interests.” 

“True. So what?” 

“And don’t those interests tend to be those which are capable of financing their campaigns?” 

“Yes. Money talks, as they say."

"But do those interests seek advantages for themselves or fairness for everybody?" 

“Advantages for themselves, of course.” 

“And do you suppose that when they make their donations to candidates or parties that they caution their beneficiaries to make sure that they serve their interests only through fair democratic processes?” 

“No, it would be ridiculously naive to think that.” 

“But effectively serving the interests of their donors is how politicians stay in office, am I right?” 

“You are.” 

“Where, then, do you suppose democratic considerations come in to play in this dynamic?” 

“Nowhere that I can see.” 

“Nowhere that I can see either.” 

“The way things are now, money is everything in politics,” Socrates replied. “Do you see any way out other than requiring campaigns to be financed, whether directly or indirectly, strictly with public funds?” 

“No, you’re right. But how could that be accomplished?” 

“That’s for another discussion on another day,” Socrates said.

 

—Jack Quirk

FOR EVERY WRONG A REMEDY

“It makes sense to me,” I said, referring to a recent Supreme Court case where the Court ruled that a prisoner in a federal prison couldn’t sue the prison officials, claiming physical abuse at their hands. [1] 

Socrates put down his coffee, and asked, “Why does that make sense to you, Jacob.” 

“Because Congress hasn’t created a cause of action for such cases,” I replied. “It’s the Separation of Powers. Congress makes the law, the President enforces the law, and the courts interpret the law. If Congress hasn’t passed a law, there’s nothing for the courts to interpret and apply.” 

“Well, that creates an absurdity,” Socrates said. 

“How so?” 

“If the plaintiff in the case you’re referring to had been imprisoned in a state facility, and state prison officials had physically abused him, wouldn’t he have has a viable case then?” [2] 

“Sure, assuming that what he is alleging is true.” 

“So, why should it be any different simply because he was in a federal prison rather than a state facility?” 

“Because, again, the Congress hasn’t passed an applicable law that would cover the situation. On the other hand, it has passed such a law covering state governmental actions. Even if the Court thinks that such a law would be good policy, it can’t make up the law itself.” 

“Really? I thought this was a common law country.” 

“You mean like the common law of England?” 

“Right. Didn’t we adopt their legal system?” 

“Well, we don’t have a monarch,” I said, laughing. 

“I don’t mean their specific laws. I mean didn’t we adopt their legal system?” 

“I’m confused.” 

“Doesn’t someone accused of a crime in our country have the right to a trial by jury?” 

“Yes.” 

“And isn’t that right something that we inherited from England?” 

“Okay. Yes.” 

“Now courts in our country don’t just rely on statutes in determining what the law is, do they?” 

“They don’t?” 

“Don’t they also rely on precedent?” 

“Yes, I suppose they do.” 

“And don’t they call the precedents they rely on ‘caselaw?’” 

“You’re right.” 

“And the legal system that relies on case precedents is called the ‘common law’ system. Am I right?” 

“If you say so.” 

“Isn’t it also true that many of our crimes weren’t originally defined by statute, but by caselaw?” 

“I didn’t know that.” 

“For example, in the State of Michigan, murder isn’t defined by statute but by the common law.” [3] 

“Okay, then.” 

“Now you realize that the source of common law isn’t statutory law, but caselaw. Don’t you?” 

“I’m starting to see that.” 

“So, on what basis was the plaintiff suing in the case you were talking about?” 

“He said that he was getting beat up by prison personnel.” 

“Right. But did he base his cause of action on any particular law?” 

“On the Eighth Amendment’s prohibition of cruel and unusual punishments.” [3]  

“So, the Court in this case wasn’t even asked to make up a new cause of action. There is already a law in place prohibiting what the prison officials allegedly did.”

 “I suppose, if you think of the Constitution as a law in that sense.” 

“Well, now, wait a minute. Doesn’t the Constitution specifically state that it is the supreme law of the land?” 

“That’s right.” 

“So, in what sense is the Constitution not a law?” 

“You’ve got me. I don’t know what I meant by that.” 

“Now according to the Eighth Amendment we have a right to be free of cruel and unusual punishments, correct?” 

“Obviously.” 

“And, speaking of the common law, isn’t it a maxim of the common law ‘that where there is a legal right, there is also a legal remedy, by suit or action at law, whenever that right is invaded?’” [4]

 “I think I’ve heard of that, yes.” 

“So, does it make sense to you that Congress can take away a legal right by simply not providing a remedy for its violation?” 

I laughed, and said, “I don’t think Congress has effectively repealed the Eighth Amendment just because it hasn’t provided a remedy for its violation.” 

“But what’s the point of a right that doesn’t have a corresponding remedy for its violation? And what about the maxim of law that you’re discarding?” Socrates replied. 

“Okay, I think I see what you mean. But wouldn’t the plaintiff in the case we’re talking about have a cause of action under state law for battery?” 

“Maybe. But what does that have to do with anything? Do rights under state law cancel out rights under federal law?” 

“No, I guess not.” 

“Rights without remedies are meaningless, Jacob,” Socrates said. 

“Once again, I must acquiesce to your superior wisdom.” I replied.

 

—Jack Quirk

WAR AGAINST THE LAW

“The War Powers Resolution is unconstitutional,” Mike insisted loudly over the din in the bar. He and Socrates had been arguing about whether President Trump had the authority to bomb Iran’s nuclear facilities without congressional approval. I was present to witness the argument, and heard the following: 

“How so?” Socrates asked. 

“The President is the Commander-in-Chief of the armed forces. That means he gets to decide when and where he will send our military, and what operations it will engage in. It’s none of Congress’s business.” 

“Oh, I see,” Socrates replied. “I thought you were referring to the fact that the law gives the President a sixty day window to commit our troops before he can be reined in by Congress.” 

Mike laughed. “No, why would I be saying that?” 

 

“Because that’s what the statute says.” [1] 

“That’s why I think it’s unconstitutional. The President is in charge of the armed forces, and we have separation of powers in this country.”  

“We do,” Socrates replied. “And aren’t those powers specified in the Constitution?” 

“Sure.” 

“And to which body is given the power to declare war?” 

“To Congress. But you’re missing the point.” [2] 

“What point?” 

 

 “That the President is Commander-in-Chief of the armed forces.” 

“Okay, I’m starting to see now. You’re saying that the President shouldn’t be restricted at all in his use of the military, whereas, when I first heard you, I thought you were objecting because the War Powers resolution gives the President the ability to introduce the military into hostile situations for sixty days before he has to consult with Congress.” 

“No,” Mike laughed. “My objection is that Congress has any say in the matter at all.” 

“Well, then, what does the Constitution mean when it says that Congress has the power to declare war?” 

“Just that. Congress has the power to declare war. But that doesn’t mean that the President doesn’t have the power to direct the military as he sees fit.” 

“How doesn’t that interpretation of the Constitution render the power of Congress to declare war a meaningless formality?” 

  

“Perhaps it has something to do with international law. Ask the Framers.” 

“I can’t ask the Framers, seeing as they are dead. But doesn’t current international law prohibit military force unless a country is attacked or is authorized by the UN Security Council?” [3] 

Mike laughed dismissively. “Well, if you want to pay attention to the United Nations Charter.” 

“But isn’t the United Nations Charter an international treaty to which the United States is a party?” [4]  

“Yes.” 

“And doesn’t the Constitution provide that treaties entered into by the United States are to be considered the law of the land?” 

“Yes.” 

“But was the United States attacked by Iran?” 

I could tell that Mike was starting to become uncomfortable. “No.” 

“And did the UN Security Council authorize an attack on Iran?” 

“No.” 

“So, how was the attack on Iran not totally unlawful?” 

“Look, Socrates,” Mike said with a tone of frustration. “Iran was building a nuclear bomb. That’s totally unacceptable.” 

“Didn’t U.S. Intelligence tell us that wasn’t so?” [4] 

“The President thought otherwise.” 

“Then why couldn’t he make his case before the Security Council if he was so certain?” 

“Why do you think the President should ask permission from the Security Council?” 

“Because it’s the law?” 

“Look, I don’t go in for this radical socialism that you’re espousing.” 

“Honoring treaties and obeying the law are radical socialism?” 

“They are if they’re used as an excuse to go against the interests of the United States.” 

“Are you saying that the Constitution is against the interests of the United States?” 

“I didn’t say that.” 

 

 “I thought you did when you said the United States should violate the UN Charter. But aren’t you aware that at the Constitutional Convention the original wording of the War Powers clause was that Congress was empowered to ‘make’ war, rather than ‘declare’ war?”  

“I was.” (The way he replied made me think that he really wasn’t) 

“And do you know why they changed it to ‘declare’?”

“I can’t say that I do.” 

“It was because they wanted the President to have the power to repel sudden attacks.” [5] 

“Well, now,” Mike said with an air of triumph, “doesn’t that make my point?” 

“How so?” 

“They wanted to make it clear that the President had the power to act militarily without asking Congress for permission.” 

“In the case of sudden attacks only. Otherwise Congress was given the war power. That’s why Congress said in the War Powers Resolution that its purpose is to “fulfill the intent of the framers of the Constitution of the United States…,” [6] and that the “President in every possible instance” should “consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances….” [7] Do you see what I’m trying to convey?” 

“I understand your point,” Mike said. “But I think that the President should be the one to decide what to do with the military.” 

“I’m more comfortable with such decisions being collective ones,” Socrates replied. “But I suppose you can always write your Representative in Congress and suggest that the Constitution be amended.”

 

--Jack Quirk

THE BEST THING POSSIBLE

“That would be the worst thing possible if the baby lives,” a female voice exclaimed at the table next to us. 

Socrates flinched at that, as did I, so I wasn’t surprised when Socrates addressed the couple at the table. “Pardon me,” he said. “I don’t want to be intrusive, but are you talking about the Adriana Smith pregnancy case?” 

The man at the table replied, “Mind your own business.” He then turned to the woman and said, “Yeah, everyone’s talking about the baby coming through it as it was some kind of miracle. But, all things considered, that would be a terrible outcome.” 

I hadn’t followed the Adriana Smith pregnancy case, but I was highly disturbed by what these people were saying. Not being as polite and cultured as Socrates, I said, “Look, now, you’re talking about a baby dying as a good thing here in the coffee shop where everyone can hear you. That’s about the most offensive thing that a person can say, and you’re making it our business by saying it. So take it somewhere else where you won’t offend people.” 

At that the man stood up with his fists clenched. I stood up as well, but the woman grabbed the man by the arm, saying, “Tim! Stop it! Sit down!” 

Tim obeyed, and I too sat down to see Socrates laughing. “I’m glad you’re entertained,” I told him. 

I thought that the couple would simply get up and leave, but it turned out that the woman was prepared to engage. Looking at Socrates she said, “Yes, we are talking about the Adriana Smith matter. I don’t want you to think that I enjoy the idea of babies dying in general.” 

“That’s what I thought,” Socrates said. 

“Excuse me,” I said, “but what is the Adriana Smith matter?” 

The woman looked at me, but she didn’t betray what she was thinking by her expression. I turned to Socrates who was shaking his head. “You know, newspapers are still pretty cheap, relatively,” he said. 

“But I have to learn how to read if they’re going to be of any use to me,” I joked. 

But Socrates looked at the couple, and said, “He isn’t kidding.” Then he turned to me and said, “Adriana Smith was a woman in Georgia, who died because of a medical emergency. She was nine weeks pregnant at the time. But the hospital told her family that due to Georgia’s strict abortion laws, she would have to be kept on life support until the baby could be delivered. It seems that upset at least some of her relatives.” [1] [2]  

“And it was because of Georgia’s patriarchal six week abortion ban,” the woman chimed in. 

“But this didn’t really involve an abortion did it?” Socrates asked. 

“No,” the woman said. “But it still involves the same patriarchal power structure that wants to take control over women’s bodies.” 

“So, you would say that Adriana Smith had the right to control her own body,” Socrates said. 

“Of course she did,” the woman replied. 

“But isn’t it true that the decision to keep Adriana Smith alive so that the baby could be delivered was made after she was already brain dead?” 

“Yes.” 

“And she died rather suddenly. So, we never got to hear what Adriana would have wanted about whether to keep her body functioning in order to preserve the life of her child. Isn’t that right?” 

“I’m sure she would have preferred to be allowed to die in peace.” 

“But she was already dead. The question of whether she would die in peace or not had already been answered. Or am I missing something?” 

“Okay,” the woman replied. “But her relatives should have had a say.” 

“You can’t mean that,” Socrates said. “Isn’t the whole idea behind the so-called right to choose is that women should have control over their own bodies?” 

“Of course.” 

“Well does that mean that the right to choose descends to her relatives?” 

“It should.” 

“But you’re concerned about patriarchy. What if the right to choose descends to a male?” 

The woman laughed derisively. At this point, Tim interjected. “You know, you’re really a jack ass, you know that? Ignore him, Leticia. He’s just a misogynist.” 

“Whatever I am,” Socrates said, “I still can’t understand why it would be better for the baby to die.” 

“Don’t you get it?” Tim said. “If the baby survives that will give misogynists like you an argument that the fetus was alive all along, and has some right to life.” 

“Now you’ve really got me confused,” Socrates said, laughing. “Why wouldn’t a fetus be alive?” 

With that, Leticia stood up. “Let’s get out of here, Tim,” she said. “I don’t really want to be in this company.” 

“Right,” Tim said, and they both got up and left the coffee shop. 

After they left, something funny occurred to me, and I started laughing. 

“What are you laughing about?” Socrates asked.

“I’m just thinking about that kid growing up and coming to realize that his family wanted to kill him,” I replied laughing harder. 

“Jacob, you’re a sick, sick man,” said Socrates.

 

—Jack Quirk