...A MORE PERFECT UNION

“I Don’t Want to Change the Constitution”

With those words, a woman recently argued to me her reason for not signing a petition to ban assault weapons. The amazing lack of historical context and perspective the gun manufacturing lobby has been able to insert into the collective psyche of a sector of our society is overwhelming. I must comment.

The Constitution’s preamble starts with “We the People of the United States, in order to form a more Perfect Union…” stating thus, from its beginning, that imperfection is a constant and the search for perfection eternal. That would mean that amendments and clarifications may be required—and currently there are twenty seven.

The structure of the U.S. Constitution is particular in that it is one of, if not the only one, that does not directly address the rights of citizens in its main body, only the way government should be structured or, well, constituted. Articles 1 to 3 establish the branches of government, the fourth the relationships between the states, the fifth is on amendment procedures, the sixth and seventh on transitional and ratification procedures—and that’s it.  Seven articles relating to how to establish a central federal government out of a federation of states; and then there is the Bill of Rights: a separate document discussed and approved at the same time as the body of the Constitution in September of 1787 and ratified by the States in 1789. It is not even until the Fourteenth Amendment, ratified in 1868, that the question of who is a U.S. citizen was clarified.

By constructing the founding document this way, the framers allowed the structure of federal government and states to maintain stability while at the same time establishing separately the individual and collective rights that regulate civil interaction between the members of their society, rooted in past tradition and common law, and which may or may not change in the future; and this latter one is an important point. The Constitution as originally written, for example, includes the following:

“No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” (Art. IV, Sec. 2)

Other provisions in the Constitution, listed in Article 1, establish the existence of “free Persons” and that those who are not count as three fifths or not at all: “Indians not taxed.” This implicit consent and ratification of slavery and race inequality within the body of the constitution was changed with the ratification of the Thirteenth Amendment in 1865, seventy six years after the Constitution and the Bill of rights were written. As a supplement, the Fifteenth Amendment prohibits the denial of the right to vote based on race or previous servitude (slavery). Those two amendments “changed the constitution.”

Has the Constitution “changed” in any other ways? Article 1 establishes that Senators are to be chosen by the legislatures of each State. In 1912 the Seventeenth Amendment established that Senators would be directly elected. Some amendments should not have been a constitutional issue, such as Prohibition (Eighteenth Amendment), properly repealed in 1933 by the Twenty first Amendment. We are striving for “a more Perfect Union,” after all, so imperfections are allowed.

In 1919 it was determined that the word “Person” in the constitution included women, and the right for women to vote was proclaimed in the Nineteenth Amendment, technically a clarification, not a change –which means clarifications are allowed.

The Second Amendment

Having established that the Constitution can be changed or clarified, the third important caveat is the issue of interpretation. For this, we may look into the most significant Supreme Court ruling affecting the “right to bear arms” as expressed in the Second Amendment: DC v Heller. A selection of quotes from the majority opinion of the decision reads as follows:

“The term [Arms] was applied, then as now, to weapons that were not specifically designed for military use and were not used in a military capacity” (Opinion, p. 8)

“Like most rights, the right secured by the Second Amendment is not unlimited (Opinion, p. 54)

“[Nothing about] our analysis suggests the invalidity of laws regulating the storage of firearms to prevent accidents” (Opinion, p. 60)

“Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home” (Opinion, p. 64)  [1]

On page 55, the opinion argues that discussion on the right to possess military style weaponry as part of a civil militia as pointless—at the same time that it ratifies (once again, as before in several parts of the text) the existence of such things as “lawful weapons,” whereby, it follows, “unlawful weapons” can exist.

On page 57, the opinion argues that handguns are more effective for self-defense than long guns.

On pages 58 and 59, a short discussion on licensing is made, letting the licensing requirements stand, but not addressing the licensing issue per se, as both the Respondent (Heller) and Petitioner (DC) agree that licensing of firearms is permissible. Justice Breyer’s dissent makes this last point forcefully.

The body of the decision relates to the meaning of the Second Amendment. One of the most contentious stipulations is that the text of the Amendment is divided between a “Prefatory” and an “Operative” clause, meaning that what it says before the second comma is essentially meaningless. That is the heart of the opinion of the majority and addressed by most of the dissent by Justice Stevens, centered on the importance and weight or not of the phrase “well-regulated militia” and each word therein. Long discussions, ink and bytes have been spent on that argument and we will not go into that in this writing. [2]

Justice Antonin Scalia, a self-described “originalist” wrote the majority opinion, so the words are his. It is understood then that making military-style weapons unlawful for civilian use [3], background checks, safe storage and licensing laws would be consistent with DC v Heller. However, Heller is an opinion and interpretation of the Second Amendment that has been (mis)used by the gun manufacturing lobby to extend its market unlimitedly and dangerously. Justice Scalia, outside the opinion, was vocal about extending gun ownership. He even said once, while being interviewed by Chris Wallace, that people could conceivably be allowed to purchase and legally have rocket propelled grenade launchers (a.k.a bazookas); but within the confines of the court and his most significant opinion on gun rights, reason mostly prevails.

Having common sense gun laws is not changing the Constitution. Making weapons of mass murder illegal falls within the framing of the Constitution. Licensing and registering is constitutional, and weapon use and ownership can and should be licensed and registered. The gun manufacturing lobby has hijacked the Second Amendment and used it as a marketing tool. It is they that undermine the Constitution.

Article 1, Section 8 of the Constitution makes clear that no federal armed forces have authorized funding except for a maximum of two years, suggesting the framers did not want a federal level permanent armed force. If claims of faithfulness to the intention of the framers were to be taken at face value and no interpretations or corrections allowed, as “originalists” claim, the United States would not have a standing army. The US Army would instead be the “well regulated” militias referred to in the Second Amendment and would look a lot more like Switzerland’s where, in fact, it is a well-regulated militia (follow the link to see what that looks like) in charge of its national defense [4]. This same section 8 calls for the establishment of a Navy, with no specified timeframe, so the actual intention of the framers can be described as murky at best, but it has been adapted to the realities of modern life and economic reasoning of large capital investment in defense related assets (which would have been the case of the Navy at the time, for example). Amendments, clarifications, interpretations and corrections are part of “the Grand Experiment” of democracy undertaken by the United States, in search of a More Perfect Union.

*********

Other essays on the issue of gun control:

ACCESS AND CONTROL, December 16^th, 2012 (first reaction to Sandy Hook).

GUNS AND US – A CALL FOR ACTION, February 21^st, 2018 (first reaction to Parkland)

MARCH 24th – March for Our Lives in Parkland, March 29^th 2018

---

[1] - Justice Scalia writes: "Before this Court petitioners have stated that 'if the handgun ban is struck down and respondent registers a handgun, he could obtain a license, assuming he is not otherwise disqualified,' by which they apparently mean if he is not a felon and is not insane." (Opinion, p. 59). Implicitly he is consenting to background checks.

[2] -  Let us mention, however, that in the section dedicated to explain the so-called Prefatory Clause, "Militia" is argued in a page and a half, while “well-regulated" is dismissed as an adjective that "implies nothing more than the imposition of proper discipline and training". Even in this glossing over, Scalia cites a dictionary of the time (Rawle) that would reaffirm the intention of the word "('Regulate': 'To adjust by rule or method')". "Security of a free state" is analyzed over one page. The majority opinion itself is 64 pages long.

[3] - The use of “Assault Weapons” or “Military Style Weapons” are euphemistic terms that normalize a tool designed to be used efficiently for mass murder and maximum damage. It is preferable to call them what they are: “Weapons of Mass Murder.”

[4] - The debate on standing armies and militias as well as their adscription to either the federal government or the states was extensive and can be appreciated in the Federalist Papers, particularly 29, as well as in the DC v Heller opinion and Stevens’ dissent. Alexander Hamilton makes an extensive case explaining regulated militias, Justice Scalia seems to water down the interpretation of what “well-regulated” means, while Justice Stevens perhaps overreaches.

Photo copyright belongs to its owner: Jim Watson/AFP/Getty Images. Originally found here

FOR OTHER WRITINGS ON GUN CONTROL BY CJ RANGEL GO TO: BESEIGED BY GUN VIOLENCE

LET'S TALK ABOUT THE ECONOMY.

With Labor Day upon us a new election season gathers, threatening a new storm of accusations, fears, insults and lies hurled from the candidates upon the electorate to qualify or disqualify one another in the fight for the White House. In the tradition of generals fighting the last war, the notion of “it’s the economy, stupid” keeps in the core of campaigns, and murkiness and misconceptions drive them around this issue as it did in 2016, with the result we all know. That famous motto of Bill Clinton’s (and James Carville) probably should now be updated to “It’s NOT the economy, stupid”. That is because for most, of the beautiful economy of the last 9 years there has been little left to show. That is why we must talk about the economy.

It is unmistakable that there is a malaise in the economic life of most Americans. The gut of many wrenches every month as bills accumulate and money seems tighter. But media pundits and many in government say all economic indicators are better than they have been in many years: unemployment low, continued GDP growth no blips, inflation tamed, low interest rates, stock markets ar all time highs... all indicators shiny green—or are they? 

To fixate on the Dow Jones Industrial Average index as an indicator of the economy skews the perception of the most mundane of everyday concerns: money in the pocket (let’s call it “disposable income”). Using the DJIA as a sign of success or failure of any given decision, policy, or even tweet, affecting the economy is attention grabbing, but does not address that malaise, which makes for most folk such glee over the markets mostly irrelevant to their daily lives. It is true that the DJIA or S&P 500 indices can serve as boosters to consumer confidence, an important component of the economy at large and, obviously, if all corporations went out of business all of the sudden (not necessarily predictable by the DJIA) it would be a bad thing but, at some point, well… you can’t fool all of the people all of the time. Underlying resentment over the perceived indifference of politicians and pundits rises, and populism with it. And populism, yes, is bad; but that is not what this essay is about.[1]

Where Opportunity Hits the Road

Let’s do some numbers: In the US, in real terms since 1979, the GDP has increased 290%, while the S&P and the DJIA increased 832% and 893%, respectively. At the same time and over the same period, for women in the 90^th percentile (the top 10 percent) wage growth was 67%—and that was the best performing demographic. For men in the 50^th percentile it actually declined, with wage growth being MINUS 5% since 1979. For men in the 10^th percentile (the bottom 10 percent) it declined even more, by 13%.[2]

The disparity between GDP, the DJIA and the S&P with the wage growth numbers is one of the critical reasons for the increase in that gut feeling that there is something fundamentally wrong with the economy, regardless of the rosy and highly publicized indicators. This would suggest that the common trope that what is good for “the markets”, meaning stock indices, is good for the economy must be questioned.

What drives a stock price and the indices the most? That is a simple answer: profits. Profits in turn, can be created by a few factors. The most direct one is by selling more at a lower cost. The selling more part is what GDP measures: the sum of transactions in the consumption of goods and services, plus exports minus imports. So GDP growth is good for profits; interestingly, a decrease in imports is too, but not necessarily for everyone. If imports become more expensive, besides impacting that formula with a bigger negative number, businesses relying on imports in order to create the same number of domestic transactions will see their costs rise. This may be reflected in a price increase to protect their profits, which in turn may reduce demand—the number of transactions (the GDP). So a rise in the cost of imports, whether by currency weakening, tariffs or scarcity, will impact the stock price of companies dependent on imports, of which retailers in general and many consumer good companies make a significant number. Walmart and Apple, for example, fall under those categories.  But the Trade War’s recent impact on the stock indices does not explain the long running economic dissatisfaction that sweeps the nation, a dissatisfaction that elected Donald Trump with his line that struck a chord directly addressing it: “what have you got to lose?”[3]

That a “left behind” part of the electorate saw in Trump a change from the past economic success of America is understandable. That such an electorate may turn to populism is understandable; and the failure to address that populist sentiment is a danger to democracy – not only in the US, but worldwide. The 2016 Fall of Discontents that made Trump the 45^th President had its long planted seeds in the entrenchment of economic power in direct conflict with one of the main tenets of capitalism: renewal. Entrenchment is the sand in the gears that slows down renewal. Renewal is what creates new industries, what transforms economies. Entrenchment will try to buy itself tax breaks, subsidies and favorable policy. Opportunity, the path towards success, is fed be renewal; entrenchment stifles opportunity, generating inequality.

Labor's Toil and Troubles

Entrenched economic power has a survival stake – it does not want to leave that trench, it does not want to get “renewed”. To survive, its stakeholders will make sure that their economic power is strengthened using every tool at their disposal. These include lobbying for tax breaks, “corporate welfare”, and policies that weaken any potential replacement – i.e. making sure government policies choose them as the “winners.” As a corollary, they need to reduce opportunity for newcomers, those outside their circle and bubble. This means education, health care and social safety nets that allow for personal growth and capital accumulation beyond mere water treading must be limited or curtailed, because all represent a long term threat to their entrenchment.

The survival instinct of those stakeholders, the economic elite known as “the 1%”, dictates that strengthening of their economic power is fundamental. Returning to that profit factor leading to higher stock prices, the cost element has been a long time driver. The clear way to reduce costs is to focus on one of its largest components that can be most easily controlled, wages. The underlying explanation to the rise in inequality is a simple one: the growth in productivity and GDP has been faster than the growth in real wages. This has resulted in gainfully employed people in major corporations needing public assistance (at the same time that these corporations get tax breaks, making such public assistance a burden on the national debt) and needing to find “gigs” to help them make ends meet.

Anecdotal evidence suggests that many people are working more than one “job,” but the official number from the Bureau of Labor Statistics says that such cases represent less than 5% of the labor force. The caveat is that this number is a self-reported one. Clearly if someone who is working at a retail giant as a greeter or similar and also drives car owners to-and-from the service dealer they have two jobs and will say so when surveyed by the BLS—maybe. But, how about a person driving for Uber and Lyft, Door Dash and Grubhub? Does that person report they have four jobs or one: self-employed contract driver? Or the teacher that also babysits or tutors, the latter jobs sometimes associated to “homemaker activities” and not counted in the GDP? Or the professor that occasionally consults or writes a book? Or the waiter that writes a screenplay? Do they all say they have more than one job? Even if for some it may be a critical part of their income or careers and could be exclusive of each other?[4]

Not to mention the increasing need of families for multiple incomes. When “America was Great!” the need for more than one family member to supplement income was much less than it is now. The need, not option, to have more than one income from multiple household members has increased over the last thirty years, within the memory of many. It is not so common now for most to enter their house saying “Honey, I’m home!” anymore. An unintended consequence of incorporating women to the labor force, a clear trend from the mid ‘60s to the mid 90’s, has been a downward pressure on wages as the gender pay gap was successfully used by corporations and employers to boost their bottom line. The labor participation rate (people of working age employed or looking for employment) peaked in April of 2000 at 67.3%, climbing from 58.10 % in 1954, and now stands at 62.9%.

One more economic wool on the eyes that needs to be pulled off is the issue of 401 (k) plans. Recently the president asked a crowd after an upward swing of the DJIA “so, how is your 401(k) doing”? The suggestion that the 401(k) plans compensate loss of wages for most is absurd and perpetuates the myth that the stock market gyrations actually reflect everyone’s pocket. The average person with 401(k) in the US has a nest egg of less than $93,000, those approaching retirement age average $200K and, according to the US Census Bureau, less than 32% of Americans actually have one. This is not an economic safety net, and it shifts the burden of future wellbeing responsibilities from employer to employee. The surge of IRAs and 401 (k) plans coincides with the demise of the unionized labor force and private pensions, all elements giving major corporations a way of reducing costs associated with their labor force.[5]

To reverse this inequality trend in the country is nearly impossible, given the structure of our economy, but some lessons from other countries may be helpful on how to address the growth in inequality in a free market economy: building a strong social safety net.

What Ever Happened to Socialism?

With the campaign threatening to have a chapter dedicated to candidates accusing each other --"They are all socialists!", "No, you are the socialist", "I am the true socialist!" -- a certain insight into that portion of the debate should be discussed, as distorted hyperbole will surely come from all sides.

Let us talk about Denmark, which has been in the news lately for its refusal to accept the disregard of sovereignty as part of modern international policy. Denmark has a free market economy. It is part of the Scandinavian countries which have grouped their largest companies in the Nordic Nasdaq, which includes Danish companies such as ABB, AstraZeneca, Ericsson, and Maersk. The growth of this market index since 2008 has been 32.79%. In contrast, average wage growth in the same period has been 15.75% or remained virtually flat, depending on the calculation. While a gap exists between these two numbers, it is not as abysmal as the ones we see in the US. The gap, however has given rise to populist “right wing nationalist” movements in various Scandinavian countries and other traditionally considered capitalist economies (the UK, France, Italy, etc.). Is this a failure of capitalism? No. It is when intervention on the fundamental driver of capitalism, renewal, is left to entrenched interests that such failure occurs.

Still, in the Inequality-adjusted Human Development Index, all Scandinavian countries far outrank the US. Iceland, on the top of the list, by over 10% and Denmark, the lowest of Scandinavian countries in the Index, by almost 8%. These gaps are greater than the US has over countries such as Kazakhstan, Russia or Bulgaria, for example. By the way, Canada tops the US by 7% in this Index. The significant difference in these countries is that opportunity is not hindered by the extremely high cost (and with personal debt risk) of quality education, or by the risk of financial ruin by a chronic illness or emergency (or simply necessary) operation. Renewal, the driver of progress, has a more fertile ground in a society assisting such basic human development needs than in those who don’t, and is reflected in numbers such as CEO to Average worker salary ratio. In the US that ratio is 354 times the average worker salary. In Denmark, for example, it is 48 times.

Much ink and bytes have been spent arguing about capitalism and socialism. So much so that the terms have become almost meaningless. It is preferable to talk about free market economies and command economies, and these are defined by the outcomes. The Scandinavian countries clearly have by all measures free market economies, and successful ones at that. They also have social safety nets, which some call socialism and perhaps could be qualified as such if that word were not so emotionally charged. The free market nature of the economy in the US is increasingly under question, as the government’s increased use of subsidies, tariffs and directives designed to protect the economic interests of the few is becoming too common. The pattern of a command economy, protecting entrenched oligarchies by choosing winners and losers by executive decree, lurks in such policies.

The best way for an economy to grow is for all members of said economy to develop their maximum potential, because nobody knows where the next great idea will truly come from. A forward looking society wants to have social structures that maximize the opportunities for its individuals. The best way for an entrenched economic entity to stay entrenched is to curtail competition, to ensure no new ideas come out of nowhere to displace it and keep its future as predictable as its past. These are the outcomes that need to be debated when talking about the economy: maximizing opportunity for all or protecting entrenched interests. What will it be? The 2020 election will likely come short of a definitive answer.

----

Other essays on the economy, inequality and interpreting metrics and policies: 
"THE GREAT AMERICAN CON"
"THE ECONOMICS OF INEQUALITY - A HEALTHY ECONOMY IS HEALTHY FOR EVERYONE"
Topic area: Inequality, Trade, Economy, Immigration...

---

[1] This link is for one of my essays on Populism.

[2]  “Real Wage Trends, 1979 to 2018” Congressional Research Service, July 2019. The numbers are (Avg. Hourly Wage, 2018 dollars):

Women in the bottom 10% $10.07 in 1979 to $10.55 in 2018; Men: $13.84 to $12.00.

Women in the 50th percentile: $15.92 in 1979 to $20.00 in 2018; Men: $25.33 to $24.04.

Women in the top 10%: $27.68 in 1979 to $46.15 in 2018; Men in the top 10%: $43.25 to $59.00.

[3] The underlying message of Barack Obama’s 2008 campaign also was directed towards this malaise, promising “Hope and Change”, and exacerbated by the 2007 financial crisis.  

[4] This, by the way, does not affect the unemployment rate. The employment rate is calculated by determining how many people are working from the total labor force (working or looking for work, as determined by the labor participation rate). It does not matter if that person has more than one job, that person is not unemployed. The unemployment rate is the percentage of the total labor force that is not employed.

[5] The health care debate is often framed in terms of employer benefits. The core to resolve this issue lies somewhere around there.