Can we trust the Constitution to fix itself?

By Steve Brawner
© 2017 by Steve Brawner Communications, Inc.

Sometimes, Americans these days can be so distrustful that systemic change can occur – even if they would like that change – that they won’t take advantage of a mechanism that would make it possible to at least try.

I’m referring to a vote Monday by the Arkansas Senate against a resolution calling for a Convention of States. That’s a national movement to gather delegates to consider constitutional amendments that would limit the federal government, impose budget restraints and enact term limits.

Those are the kinds of things Republicans often say they support, particularly the limiting government part. Several states have already signed on. In Arkansas, it failed Monday, 13-17, with eight Republicans voting no and four senators not voting. The vote was expunged, which means it can be reconsidered later, but it probably won’t be.

The Constitution’s Article V contains two mechanisms for amending the Constitution – one initiated by Congress, which is how all 27 amendments have been ratified, and one initiated by the states, which has never been used successfully.

In presenting the resolution, the sponsor, Sen. Gary Stubblefield, R-Branch, imagined a conversation he might have with Founding Father James Madison about the government’s current size and scope and about the $20 trillion national debt. Stubblefield wondered if Madison would even know what a trillion is – as if any of us do.

But the whole idea stalled amongst questions from both Republicans and Democrats about how the process would work, which Stubblefield couldn’t answer with specificity. Of course he couldn’t – it’s never been used before. The process would work like everything is supposed to work in this country: The Constitution lays out a broad framework, and then we have to figure out the details as we go along.

This is one of those issues that hasn’t gotten a lot of attention from the press but has gotten a lot of attention from a small number of activists from both sides. Many of the opponents are conservatives who fear a “runaway convention” where delegates suddenly start radically changing America and stripping us of our rights.

But any amendment must negotiate a gauntlet of constitutional roadblocks. Thirty-four states must approve a resolution, which would lead Congress to call a convention, which would require each state to select a delegation, who then would gather to vote on proposed amendments, which then would have to be approved by 38 state legislatures.

Thirty-eight states couldn’t agree on what kind of pizza to order, so it’s highly unlikely that anything crazy would get through.

The Article V provision, in fact, is consistent with the rest of the Constitution, which purposely makes it hard to get anything done. It was placed in the Constitution deliberately because the Founders knew that, sometimes, problems created by elected officials in Washington would have to be solved from the outside and then forced upon them. As examples, Sen. Jason Rapert, R-Conway, a supporter, pointed out that Article V had been used to pass the Bill of Rights, end slavery, and give women the right to vote. The only difference was that the process had started with Congress each time, and this time, the states would do it.

Clearly, 21 senators didn’t feel that way. If it’s because they didn’t agree with the Convention of States’ goals, then that’s understandable, even laudable, because if you don’t want to reduce government or pass a balanced budget amendment or enact term limits, you shouldn’t vote for a convention that would consider those things.

However, some of those no voters want those things to happen, and a constitutional amendment may be the only way. After 200-plus years of doing otherwise, lawmakers in Washington are not going to suddenly limit their power or balance the budget consistently, regardless of whether the president is named “Obama” or “Trump.”

The Founding Fathers created a mechanism in the Constitution to address problems that aren’t being solved through the other mechanisms we’re accustomed to using. A states-led convention to accomplish what you say you want to accomplish isn’t messing with the Constitution. It’s using it as it was intended.

What some of the senators who voted no were saying is that they don’t trust the Constitution’s own mechanisms for fixing itself, which means that, to balance the federal budget, for example, we’re going to have to use its other mechanisms that haven’t worked in the past.

Fine. The national debt is $20 trillion, and rising. Which one should we give another try?

The wrong wall

By Steve Brawner
© 2017 by Steve Brawner Communications, Inc.

After signing executive orders regarding trade, abortion and Obamacare, President Trump has begun addressing the issue that propelled him to the presidency: illegal immigration. Specifically, he wants that wall on the border with Mexico built, and he still wants Mexico to pay for it.

Enforcing the border is a core responsibility of government. But is this the right kind of wall?

This is 2017. Everything about our lives that can move from the physical to the digital is doing so. You can deposit a check with your cell phone. The U.S. Postal Service is going broke because we’re all texting and emailing.

Walmart, king of retail, is focusing much of its efforts on online sales. Many products can be bought online and shipped to your doorstep, for free. In many cities in Arkansas, you can order groceries online and then have them brought to you in the parking lot, again for no extra cost.

This is happening because Amazon sells goods that way, and Walmart must compete. Just as Walmart started with one store in Rogers and then took over the country, Amazon started by selling books and now sells everything to everybody. Like Walmart, it’s constantly innovating. The latest news is that it’s been awarded a patent for a giant blimp that would dispatch package-carrying drones to households like bees buzzing from a hive. Meanwhile, the company is opening physical stores, including one that doesn’t have cashiers. Customers with smartphones just place their item in their physical cart, and it automatically registers in their virtual one.

Walmart has seen this script before. It knows that Amazon can do to it what Walmart did to Kmart and Sears. In business, you can be on top, and then you can be gone, and it can happen very quickly. Walmart doesn’t want Bentonville to be the next Detroit.

But bricks and mortar aren’t simply being replaced with the digital world. They’re supplementing each other in constantly changing ways. Walmart is meshing its online sales with its physical locations. Amazon, the digital company, is opening physical locations.

And that brings us back to the wall. The border between the United States and Mexico is about 2,000 miles long, and 700 miles are already fenced with a barrier that snakes across the frontier and through cities.

So what do you with that remaining 1,300 miles when you share it with a neighbor whose past and future are inseparably linked with yours?

If your only goal is to keep people out, then a physical wall is better than no wall. True, resourceful people will find a way over it, under it or through it. A ladder is an extremely effective tool for climbing things. But not everyone is so resourceful.

But building that wall would be extremely expensive – $15 billion is one estimate, and of course it would have to be maintained and guarded.

Moreover, this wall – along with Trump’s vow to make Mexico pay for it – does not exactly represent diplomacy at its highest. It’s kind of a slap in the face to the entire Western Hemisphere. So it’s not surprising that, on Thursday, Mexico’s president cancelled a meeting with Trump.

Keep in mind that Walmart isn’t going digital just because it’s more efficient. It’s also doing it because it must look like a 21st century company to younger generations, lest it become Sears or Kmart.

Branding is as important for countries as it is for companies. A 2,000-mile barrier between the United States and everything to the south sends a truly awful signal about what the United States is becoming. This is, after all, the country whose Statue of Liberty faces the open water and is inscribed with Emma Lazarus’ poem, “Give me your tired, your poor, your huddled masses yearning to breathe free.” I’d rather be known for that than a wall.

We’d be better off following Walmart’s and Amazon’s lead and mixing both the physical and the virtual, by innovating and being flexible. Along with the wall that already stands, and maybe some more, make greater use of drones and satellites and other technology along with a mobile and flexible border patrol force that’s allowed to do its job. Since we apparently must argue, let’s argue about the degree to which the model reflects Walmart (more physical) or Amazon (more virtual). Also part of the strategy: Don’t bully your neighbor.

Let’s not be Kmart. This is, after all, the era of smartphones. The country doesn’t need just a tough border policy, but a smart one.

Related: Out of the shadows

Out of the shadows

DACABy Steve Brawner

On Jan. 21, Ana Aguayo stood on the steps of the State Capitol and admitted – proclaimed, you might say – before thousands of people including police officers that she was committing a crime.

Ana, 28, is an undocumented immigrant, so her crime is not crossing the border to return to a homeland that hasn’t been home for a very long time. At the age of 8, she was bought by her parents from Guadalajara to Springdale, where she was raised knowing nothing of her status. Her teachers taught her English and helped her integrate into the community, and by the age of 16 she was pretty much an American girl.

That’s when she found out she wasn’t. When her peers started getting driver’s licenses and jobs, she learned she wasn’t like them, that she was an unacknowledged guest and not part of the family. And it changed her childhood.

“I grew up living in fear and in the shadows and at a time where the media identified myself as a criminal, when I didn’t understand what had happened, that my parents crossed the border unbeknownst to me,” she said in an interview. Continue reading →

When medical marijuana almost died in the House

Rep. Doug House makes his case for HB 1058.

By Steve Brawner
© 2017 by Steve Brawner Communications, Inc.

There was a moment this past week when the Arkansas Medical Marijuana Amendment, approved by 53 percent of the voters in November, looked like it might effectively die in the Arkansas House of Representatives.

On Tuesday, Rep. Doug House, R-North Little Rock, presented that chamber the first two of a number of bills meant to fix problems with the amendment, which the Legislature can do with a two-thirds vote.

One of the bills, House Bill 1058, modified a section of the amendment requiring physicians to certify that marijuana’s benefits would outweigh the harm to a particular patient, after which the Department of Health would give the patient a card letting them purchase the drug. That kind of language puts physicians in jeopardy of being sued because there’s no accepted national standard for the use of marijuana, which remains illegal in the United States. So under House’s bill, the physician would merely certify that a patient has one of the conditions that qualify for use of the drug under the amendment.

House told his fellow legislators that few doctors will be willing to qualify their patients for the drug unless this part of the amendment is changed.

Which is exactly what some representatives wanted to happen. A couple questioned House about whether or not federal law trumps state law (it does) and what would happen if the bill did not pass. A couple argued that people had voted for this particular amendment with this exact wording. House said they had voted for legalizing medical marijuana, and the Legislature ought to make this minor change to accommodate that.

Remember, the bill needed a two-thirds vote to pass. Watching from the press’s perch in the House gallery, I thought it might fail. If it did, voters might have voted for legalized medical marijuana, but patients would have a much harder time obtaining it.

It passed with three votes to spare, 70-23, and will be considered in the Senate next week.

I voted against the amendment in November but found myself rooting for the bill to pass. Arkansans voted for it, after all, so let’s move forward. At the same time, I don’t blame the legislators who voted against it, even though it could be argued they were trying to thwart the election’s results by not fixing the flaw.

All lawmakers must balance their constituents’ wishes with their own convictions; otherwise, they’d be merely pollsters. They should listen but also lead, keeping their eyes and ears on their districts without simply sticking their fingers in the wind. The Founding Fathers were right to create a model described by Benjamin Franklin not as a direct democracy but as “A republic, if you can keep it.”

For Rep. House, that tension is especially complicated because he opposed the amendment and even donated money to help defeat it. But he also believes the voters have made their will known, and so the Legislature must now ensure the drug is available to the people who might benefit from it – and only to them. Moreover, two months before the election, Speaker Jeremy Gillam, R-Judsonia, asked him to manage the Legislature’s response if the amendment passed. A retired National Guard colonel, House dutifully accepted the assignment and then, after the election, began looking for problems to solve, finding 135 of them. So he’s trying to solve them.

House argues in this case, legislators must enact the people’s will because the people won’t accept anything else. Marijuana is now legal in some form in 26 states and the District of Columbia. In 2012, Arkansas voters surprised the political establishment by almost passing another medical marijuana measure. When that happened, the establishment should have acted to address that rising demand, he said. When it didn’t act, the voters acted instead.

“If we sabotage the amendment where people are not able to get the product legally, I fully expect a petition to be generated among the people to enact a constitutional amendment which totally decriminalizes marijuana,” including for recreational purposes, he said in an interview.

In other words, he’s trying to ensure an amendment passed by the people works in the real world, lest those voters produce another that really violates his convictions. It’s not a perfect republic, but it’s one we can keep.

He was playing chess; she was playing checkers

By Steve Brawner
© 2017 by Steve Brawner Communications, Inc.

Donald Trump won the Republican Party nomination because he was playing checkers while the other candidates were playing chess, and it was a checkers year. In November, the opposite happened: He checkmated Hillary Clinton while she was playing checkers.

Remember the primaries? Those 16 other mostly conventional Republican candidates were all playing chess – trying to execute their grand strategies and position themselves for Trump’s inevitable fade, or to be the last person standing against him. While they were staring at the chessboard, he just kept bouncing from state to state on the checkerboard until he reached the back row and shouted, “King me!”

In the general election, however, it was Clinton who tried to play checkers, while Trump realized it had become a chess match.

Checkers is a simple game, which is why we don’t hear much about “checkers masters.” The strategy involves a balance of offense and defense: You try to reach the opponent’s back row without allowing them to reach yours. If you play too aggressively, you leave yourself open, so it’s best just to plod along, pick up pieces and look for the double jumps.

That’s what Clinton did. Once she had that small lead in the polls, she played it safe and ran a same-old, same-old campaign. She didn’t reach out to voters who ordinarily wouldn’t support Democrats; those were discarded into her “basket of deplorables” and forgotten about. She thought her back row was protected by that supposed “blue wall” of states like Michigan and Pennsylvania that of course would vote for the Democrat because they always had. When that old Trump video where he talked about grabbing women surfaced, she thought she’d made a double jump right onto his back row.

Trump, meanwhile, was playing chess. Chess is an offensive game where you win by taking the opponent’s king regardless of what it costs you, and often by surprising the opponent. With checkers, you always know who’s winning; with chess, the player with fewer pieces can suddenly strike and end the game. So while Clinton’s campaign (and most pundits) were counting the number of checkers left on the board, Trump’s campaign found some holes in that blue wall and exploited them.

Meanwhile, Trump did what Clinton refused to do or could not do – find new voters.

The modern Republican Party has been an awkward coalition of business elites and socially conservative regular Americans whose interests sometimes conflict, particularly lately when those business elites are getting really rich while many regular Americans are struggling.

Trump saw that there are a lot more regular Americans than there are business elites, and some who typically vote for Democrats could become his voters. He could speak to them in a way that Mitt Romney couldn’t in 2012 because Trump is blunt and earthy and understands popular culture, and because Clinton, the daughter of a middle class Chicago small businessman, had become one of those elites herself. He wasn’t going to lose the regular Americans he already had, and he didn’t need the elites’ money because he’s already rich, he was getting so much free air time, and he’s a wizard at using free social media.

He realized that he could appeal to regular Americans’ legitimate fears and concerns – and, for some, to their misplaced grievances and their unacknowledged prejudices – by using the most effective and darkest campaign slogan in recent American history. A lot’s implied in “Make America Great Again,” especially that last word, “again,” as in, “It used to be great, but it’s not now, and here are the groups of people responsible for that.”

In the end, Clinton had 3 million more votes across the country, but Trump won the states that mattered most. Her checkerboard had more pieces, and so did her chessboard, but the checkers game didn’t matter, and he had surrounded her king with a bunch of pawns.

He recognized what no other candidates saw this election except perhaps Sen. Bernie Sanders – that the game was different this time. In fact, both games were, and the trick was knowing when to play which. That’s why the Republicans who were playing chess had to king him in checkers. That’s why he captured Clinton’s king in the general election chess match while she was moving her checkers around the board. And that’s why he’s the nation’s 45th president, and they’re not.

Related: Trump played checkers and they played chess – in a checkers year