Below is my column in The Hill newspaper on the baffling reluctance of Congress and the Supreme Court to allow for remote or distance technology as an alternative to physical sessions. Democracy at a distance is better than no democracy at all in times of emergency. President Donald Trump was asked about Congress allowing remote voting given the various Senators who are now in quarantine. He thought that it was a good idea but that there may be constitutional barriers. The greatest barriers, particularly for the Supreme Court, remain cultural not constitutional.
Here is the column:
With most Americans sheltering in place, critical government parts are shutting down as well, though the cause may be an aversion to virtual rather than viral transmissions. Both Congress and the Supreme Court have stopped meeting out of fear of physical contact, even though the technology exists to allow officials to continue working in virtual spaces. Legal barriers could be removed to allow such a shift to a type of virtual democracy, but the main barrier seems to be conceptual and cultural.
We must not allow a constitutional system to wither like a starving man staring at an apple tree but incapable of imagining a stick. I previously criticized “remote learning” educational platforms that are supplanting traditional universities. Yet I support the rapid shifting of universities to remote learning technology to continue classes at the moment. Much might be lost in terms of the direct interaction between students and faculty, but the priority is to meet an educational mission for students.
The priority is obviously far greater for Congress and the Supreme Court. Current technology can easily accommodate the need to transmit online debates and voting, with access not just by officials but also the public. Ironically, the Framers would have been least offended by such a notion. James Madison and others were fascinated with novel theories and new technology. They wanted public sessions for Congress and the Supreme Court, and they undoubtedly would have been enthralled by technology that allows millions of citizens to be virtually present for such sessions.
For Congress, there is no clear requirement that its chambers must meet in person to carry out mandated functions. The Framers had no concept of remote communications or distance voting of course. Semaphore and smoke signals notwithstanding, remote communications back then were limited to written letters that took weeks, if not months, to be delivered.
Yet nothing in the Constitution expressly requires physical presence by lawmakers. Article One states that “each house may determine the rules of its proceedings,” and the Constitution refers to “meeting” and phrases like “at the desire” of “those present.” The Framers had clearly used such terms in the physical sense, and that certainly could support a restrictive interpretation today. But a compelling argument can be made that each chamber can define what “present” means, including a virtual presence.
The dangers of distance voting are mitigated by the fact that legislative voting by Congress is a public act in which confidentiality is not required. Any security violation regarding individual votes would then immediately be known by lawmakers themselves, like a manipulation of the electronic voting systems already used on the House floor. The concept of distance voting was indeed discussed as an eventuality following the 9/11 attacks.
While current rules require physical presence to vote in Congress, those could be amended to allow a virtual presence in an emergency. As with remote learning, it might not be the optimal approach, but necessity is the mother of invention. Congress needs to approve virtual debates and votes during this crisis. Ideally, this would not be used much, if at all, but it is important for our representatives to be heard during a time of crisis.
For decades, I have advocated for using cameras in federal courtrooms. While the Framers did not imagine, let alone discuss, a virtual presence, they did expressly address one of the most important aspects of a court system in a free nation, which as we know it now is public access. Public proceedings are mandated by the Sixth Amendment, and the Supreme Court has noted that by “immemorial usage, wherever the common law prevails, all trials are in open court, to which spectators are admitted.”
Despite the notable role of public access, the Supreme Court opposes cameras in its chambers. Instead, it demands an absurd demonstration every week of a small number of people standing for hours or even days to grab one of the few seats inside. It is infuriating to watch as people pay “line sitters” to reserve seats in cases impacting the lives of all Americans. When national issues like same sex marriage or health care were resting in the balance, for instance, most Americans across the country had to hear second hand what arguments were made and what questions were asked.
This archaic system is neither quaint nor compelled. It is simply absurd and is now also dangerous. Rather than holding televised arguments with only counsel and the justices present during this crisis, Chief Justice John Roberts has chosen to suspend all further arguments. On the docket are cases with enormous national importance, from health care to gun rights to immigration. Yet because justices oppose cameras in its chambers, the business of the Supreme Court has now largely come to a grinding halt.
The problem has actually been the justices themselves. In 2007, former Justice Anthony Kennedy had objected that if “you introduce cameras, it is human nature for me to suspect that one of my colleagues is saying something for a sound bite.” It is a rather bizarre notion that millions of citizens are being prevented from seeing these arguments because the justices may not be able to control themselves from any grandstanding.
Barring cameras in the Supreme Court may prevent grandstanding, but it also may hide more serious problems. Indeed, some justices remained on the bench when they were present solely in a physical sense. Legal icons like Justice Thurgood Marshall and Justice William Douglas resigned only after the public was shocked by their diminished capabilities in national interviews. Courtroom cameras also may expose those like former Chief Justice William Rehnquist, who was addicted to prescription drugs, and past justices who suffered from physical or psychological impairments.
This crisis should force the Supreme Court, albeit kicking and screaming, into the 21st century. The optimal approach is for the justices to meet with lawyers alone in the chamber for televised arguments. If those nine chairs are simply too close for comfort, then there is no logical reason to pause oral arguments or other critical work of the Supreme Court. Technology is available to allow both arguments and conferencing to happen remotely.
The founders of our country were amazing fonts of inventive thinking and new technology. From Benjamin Franklin and his lightning rod to Thomas Jefferson and his better moldboard plow, these were men who had been enamored with new technology as solutions to contemporary problems. They gave us a constitutional system with the flexibility and endurance to survive more than 200 years of economic, military, and social disorder. No one needs to like this virtual democratic system, however, it is far better for our government to function from a distance than to not function at all.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.
“We must not allow a constitutional system to wither…”
– Professor Turley
______________
Surely you jest!
How may you abhor withering yet allow nullification?
The Constitution commenced withering during “Crazy Abe” Lincoln’s “Reign of Terror” when comrade Lincoln neutralized the legislative and judicial branches and began the forcible implementation of communism in America as the elimination of classes in society, beginning with the slave class. The Supreme Court acquiesced and allowed the withering of the Constitution under Lincoln and it has never stopped since.
Tax for general welfare only, regulate only money, commerce and land and naval Forces, protect private property from becoming public. It is the “manifest tenor” of the Constitution. Read it.
_________________________________________
Article 1, Section 8
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to…provide for the…general Welfare of the United States;
To regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes;
Regulation of the land and naval Forces;
________________________________
5th Amendment
No person shall be…deprived of…property,
__________________________________
The Supreme Court, the singular American failure, has allowed the implementation of the principles of the Communist Manifesto, those being central planning, control of the means of production (i.e. regulation), redistribution of wealth and social engineering. Article 1, Section 8, and the not qualified and, therefore, absolute right to private property in the 5th Amendment deny Congress any power to tax for redistribution of wealth or charity, any power to regulate anything other than money, the flow of commerce and land and naval Forces, and any power to interfere with, claim or hold dominion over private property. The entire American welfare state is unconstitutional including, but not limited to, affirmative action, quotas, welfare, food stamps, rent control, social services, forced busing, minimum wage, utility subsidies, WIC, TANF, HAMP, HARP, Agriculture, Commerce, Education, Labor, Energy, Obamacare, Social Security, Social Security Disability, Social Security Supplemental Income, Medicare, Medicaid, “Fair Housing” laws, “Non-Discrimination” laws, etc.
Karl Marx wrote the Communist Manifesto 59 years after the adoption of the Constitution because none of the principles of the Communist Manifesto were in the Constitution. Had the principles of the Communist Manifesto been in the Constitution, Karl Marx would have had no reason to write the Communist Manifesto. The principles of the Communist Manifesto were not in the Constitution then and the principles of the Communist Manifesto are not in the Constitution now.
The American Founders provided maximal freedom to individuals while severely limiting and restricting self-governance to its one and only role of facilitating the maximal freedom of individuals. The Supreme Court must move into the space of supporting the “manifest tenor” of the Constitution by executing its sole charge of simply assuring that actions comport with law and fundamental law, not modifying law or legislating.
“We must not allow a constitutional system to wither…” Indeed.
It already has.
i am not sure what the angels in Congress plan to do in their future dancing on head of pin
Today the Democrat leadership trashed bipartisan drafted emergency relief bill
they are despicable
I was pleased by Gov Cuomo’s speech, he has his act together, one might expect real leadership from a governor, even as the Democrat “representatives’ and “senators’ are busy stroking each other off
A applaud Trump for his cooperation with the governors
They can just dismiss the Congress for now for all I care,. They are worthless.
Kurtz, under the current proposed legislation, Sec Mnuchin would have control of awarding up to $500 billion to businesses without having to identify them for 6 months.
You see the problem?
Each member of the house sends a two legged robot onto the floor of the House. The robot talks. All members at home watch on screen and talk to each other on the floor. Easy.
The Chucky Schumer robot will wear glasses down on his nose.
Lobbyists will not like this proposal; which is reason alone to seriously consider it.
Well, then there’s that!
America Arkancided?
Are the rumors true?
Did Hillary tell Bill that President Trump was on his way to an historical landslide victory; meaning it’s past time to call in self-destructive “danger close” fire support, according to rumor?
Did Bill give the universal ruler, global communist Dear Leader Xi Jinping, a call and did “she,” in turn, call the Level Four Bio-weapons Research Lab in Wuhan, China, ordering it to, “Get the bugs out?”
Was Bill’s second call to the FBI instructing Christopher “Deep Deep State Functionary” Wray, the successor to those honorable public servants, Comey, McCabe, Strzok, Page, Rosenstein, Obergruppenfuhrer Weissman, Bruce/Nellie Ohr, et al., to propagate disinformation by floating the rumor that those pesky “White Supremacists” started the “Outbreak.”
The rest, as they say, is history.
Rumored Conclusion: The inevitable collateral damage constitutes a measure of acceptable loss in an existential endeavor to rid the world of the Trump virus.
I wouldn’t put it past the DNC.
Hey, let’s ask Donna “I Cheat For A Living” Brazile. She’ll most certainly disseminate fact and truth devoid of subterfuge.
falsely named democrats aka socialists are proving tney don’t care one centavo about people much less citizens, This is going to end up with the US Military having to take them out beforfe we’re rid of these meddlesome secular sucks.
To take advantage of your colleagues on the other side of the aisle doing the right thing is despicable.
Why this rule requiring physical presence, given this individual emergency, is not changed yet demonstrates that politicians are not elected for common sense.
Even if limited to the duration of this declared emergency it would keep a lot of closed government going.
“Virtual Democracy: Congress and The Supreme Court Need To Move Into The Virtual Space.” — Jonathan Turley
I’m looking forward to it. With modern-day CGI, large-scale deep-fakery politics should be interesting to watch. In fact, I’ve long wondered whether the words I see/hear coming from Donald Trump’s mouth are real. Surely, no one elected to the highest office in the land could really be saying some of those things, could they?
Surely, no one elected to the highest office in the land could really be saying some of those things, could they?
That you can’t think outside the boxes you and your ‘colleagues’ have climbed into is not a fault of the President’s.
@This is absurd x XXii:
You say: “That you can’t think outside the boxes you and your ‘colleagues’ have climbed into is not a fault of the President’s.”
In fact, given the unlimited narcissism he displays and the boundless adulation of his supporters, nothing is ever his fault.
In fact, given the unlimited narcissism he displays and the boundless adulation of his supporters, nothing is ever his fault.
Again, that particular fictions are present in your social circle is not the President’s fault either.
Biologist, aside from correcting his common misstatement of factual matters or mocking him, just ignore TIA. He lacks the self awareness to only respond when he actually has something to say of substance and will keep it going forever with his inanities.
Biologist, aside from correcting his common misstatement of factual matters or mocking him, just ignore TIA
You’ve yet to do either with any success in a couple of years of making comments on this blog. Give it up.
“He lacks the self awareness to only respond when he actually has something to say of substance and will keep it going forever with his inanities.”
******************
TIA’s comments are typically factual, erudite with laser-like rebuttals. You on the other hand meander from falsity to fulmination with little room for thought in between. Yours, I mean. Face it, in the horse race of life you’re Rocinante (or maybe even Dapple); he’s Secretariat.
“typically factual,” -mespo about TIA’s comments
…except when they aren’t.
Mespo is another purveyor of empty responses, heavy on pretense, light on the beef.
Aquila non capit muscas.
…and a pompous ass.
Yes, and “typically” not knee slapping ridiculous. Just sometimes.
Ooooo! Did that hurt…that instantaneous evisceration?
“…he’s Secretariat.” -mespo about “This is absurd…”
Now that’s a knee-slapper.
Anonymous:
As compared to btb (as I wrote) you are too! Well maybe just the rear end.
I rarely have a clue what TIA is saying. I’d fact check him, but when I have, his sources were suspect because they didn’t confirm my bias.
FIFY. No charge.
I was just saying this on social media this week, in my own virtual get together with friends. It’s 2020. Congress should already have a system in place to work remotely, from meetings to full session of both Houses. Heck, by now they should have the capability to project holograms of themselves into a VR House and Senate.
Their refusal to do so, while telling the rest of us to self isolate, is not only hypocritical, but dangerous in times of plague. It’s not only them, but their hordes of staffers, gophers, and everyone else who keeps the Capitol running.
Congress is not being responsible.
I think the Administration, too, should give press conferences remotely, as well as anything else possible.
The draw back is probably security. It could not be a closed system spread out like that. Secure tech is often older. Congress knows that NSA is always listening, and it is too easy to unmask. Then there is everyone else who would want a peek – China, North Korea, Russia, et al.
This has got to be worked out. And it’s a bit late to be doing it.
I’ll bet that many of those SCIF meetings discussed what would happen if plague took down the government’s ability to function. The military. Prisons. Police. Fire. Medical. Judicial system. Look at how hard Italy has been hit.
If this got real bad it could be dystopia.
Already some people refuse to obey strict quarantine orders. They go on Spring Break. Others are already itching to get out. They think, it’s probably not so bad. Once more tests come out they will find out the death rate is lower. They use any justification they can think of.
These fools would be the tools that usher in another wave of infections. They could create a real disruption in services and law and order. If they got sick, there might be no doctors or nurses to help them. Already many medical professionals are in quarantine.
Perhaps at the end of it all, it would be like the Eloi of The Time Machine. With all the rule breakers working together, perhaps Covid-19 will become seasonal. There will be no more old age. No more wisdom. Only the young who are perfectly healthy would survive. And sometimes even those would get lung damage and get culled from time to time. Congress seems to be working to ensure that the goernment gets disrupted rather than be responsible. The Administration, too, should be switching to remote work as much as possible.
+1
Karen,
To your point, I am a Captain of my local fire dept. and we have suspended all drills, gatherings and have changed our responses to calls that do not require a large workforce. Limiting access to the inside of peoples houses to only a necessary crew. Although I do not think this virus is a serious danger to our members, if they get sick and cause others to get sick they will be out of service thus the service we provide to the community will become non existent.
I disagree with regards to the Supreme Court. Virtual communications is as much about the medium as the communication itself. It is often dumbed down to fit and influences participants to be hip-and-modern first and thoughtful second. We need to keep SCOTUS connected to our constitutional roots, which was intellectually rich and deep without the benefits and influence of modern tech. Crisis tend to bring the best and worst ideas out of the closet. We should remember that this too shall pass and avoid disconnecting SCOTUS from its traditional, non-tech roots of the Founding Fathers.
I am torn on this issue. I am concerned about digital manipulation and hacking. If it is virtual, to what extent is it real if there are dark actors (from other nations or our own) who would aim to distort or manipulate the proceedings for their own agenda. Such technology exists. I barely trust the government as it is. This could make breaking faith with we the people all the easier.
Oral arguments audio for the Supreme Court is just fine. Congress can just change the rules to allow for voting and even debate from their congressional offices on the hill, or even their home offices. With Skype, Zoom and other highspeed virtual networks possible, it is easy for them to do it.
For a change, I endorse almost all of JT’s column. New technology always brings changes, good and bad, but we ca’t ignore them and should use what is best. For better or worse, working at home for many was not the option 25 years ago, that it is now.
I would add that even more importantly, Congress and the President must be thinking about and addressing the election in November. Election mechanics are a state function, but the most critical races are federal.
Raise your hand if you don’t think Trump might try to postpone it and the Senate and SC (see Bush v Gore, 2000) agree..
Raise your hand if you don’t think Trump might try to postpone it and the Senate and SC (see Bush v Gore, 2000) agree..
Democrats projecting, as always.
It’s important to improve ballot security. Democrats are dead set against that, and we know why.
On the docket are cases with enormous national importance, from health care to gun rights to immigration.
There’s your problem right there. The appellate courts did this to themselves, with the law professoriate providing them with law review arguments and law students for clerks.
I was on a Townhall phone call with my Senator last week with 20k+ other Arizonans. If we move to virtual space, we can finally go back to each Congresssperson representing 50,000 people (one of the original amendment). It is locked in now because of space in the Capitol.
Just consider the idea of each Congress person representing 50k. That is 35000 legislators who can Skype from their home office. You would be neighbors with you rep. You would shop with them. YOU would influence them. There would not be enough money in the world to bribe them all. 😉
I’m not going to consider it.
Put lower and upper age limits on running for office, reduce the number of offices subject to competitive election, have a standard four year term for all non-judicial offices, have a regular electoral calendar and not a crazy-quilt, have mandatory retirement for judges, and place rotation rules on all other offices. (Say, no one holds a given office for more than 8 years in any bloc of 10, or is permitted to run if they will hit that wall in the middle of their term).
Oh, and put constraints on the franchise of lawyers and public employees to run for office.
DSS – I am all for term limits which we have in Arizona. We applied them to our federal offices, however John McCain sued saying that the Constitution set the limits. He won, and we had McCain until he died. And then he was too chicken to be buried in Arizona.
I think new political blood helps stir the pot.
And then he was too chicken to be buried in Arizona.
The Navy was his home, then Washington. Arizona was Cindy’s home. a vacation destination for him. That’s what your people wanted and that’s what they got.
It was cheesy of Cindy et al to use his twitter account to stick a stiletto into Sarah Palin.
NB, Carol McCain’s retired to a place in the Tidewater, near one of her sons. The two of them can take a day trip by car to visit the grave, just mother and son, once or twice a year.
I think new political blood helps stir the pot.
It’s not that so much as the number of career politicians. Ronald Reagan’s political career – beginning to end – spanned about years. A third of that time he was not on the payroll. Jimmy Carter was in public office, on and off, for about 25 years, but it was intermittent and avocational much of that time. He was a f/t year round politician for about 11 years, no more. George Bush the Elder’s was about 30 years in length, during which he was on the payroll about 75% of the time. All three men had careers of considerable length doing other things – entertainment and public relations, engineering and agribusiness, the oil business. None of them had an office-holder’s salary until they were in middle age (42 to 56 years of age). McCain started out much like these men (Navy career, not running for office until age 46), but he overstayed his welcome. Robert Dole resigned from Congress during the 1996 campaign; for McCain to have done so in 2008 would have been appropriate; he was 72 years old and had been in Congress for more than 25 years. The succeeding decade cost him quite a bit of good-will.
a pot of blood would help for sure, a very deep pot, let from the veins of the pigs that have been ruining our nation for decades
Absurd, term limits favor amateurs. I prefer professionals. If legislators are just ‘passing through’, they have no incentive to bond with fellow legislators.
Absurd, term limits favor amateurs. I prefer professionals.
“Professionals” at what? I’d refer you to an article in The Public Interest published about 20 years ago on the phenomena correlated with length of time in office.
One of the more accomplished members of Congress was Bill Bradley. His most notable achievement was enacted into law 7 years after he was first sworn into office. He left Congress after 18 years. His last run for public office was 22 years after his first. Had Robert Byrd had a career of similar duration, he’d have disappeared from public life 30+ years before he eventually did, and we’d have been none the worse for it.
Term limits don’t mean legislators are just passing through. Instead they would see themselves as on the clock. The same incentives would exist, with the additional motivation that comes from committing to serve, rather than making a career of something.
Good points, Paul.
Oh, how cool…I would love to bug 🐛 my representative, I already have, but now, more so.
WW33 – I have my representatives on speed dial and call them at both the local office and DC office, depending on how urgent the matter is.
Great article, Professor. We are indeed in a unique time and some democracy is better than none at all. Also fascinating to me is how this might affect behind the scenes lobbying of Congress. No doubt the lobbying wings will find a way to further their efforts always, but a decentralization may very well prove beneficial on several levels…
Ditto the educational system, while person to person transmission is essential to capturing the essence of a subject, maybe we’re at a time where that manner of teaching may not be so frontloaded. Maybe the initial foray into the basic levels of subject matter begin to happen virtually only to be sharpened later by further in person transmission? That certainly would have great effect on the university system as it may be shifted to what amounts to in person graduate level training. The funnel and it’s introductory training, as presently known, may be forever changed by this.
And, re a subject like school shootings…, not putting almost all the children in one location for the suicidally insane to target practice with might not be the worst thing? Just saying. I mean if fish are getting shot in a barrel it might not be the worst time to stop acting like fish in a barrel.
Also: I did not know Rehnquist was addicted to prescription drugs. Fascinating. Beyond fascinating actually. See — that knowledge can be transmitted virtually…, but I bet the true measure of that is best transmitted in person. Sign me up for that lecture, Professor.
There is one aspect that is not addressed here. Having remote access to meetings rather than more in-person, especially if limited to just typing and text, might increase the level and ferocity of the rancor that permeates today’s politics.
We see this manifest with the substitution of the internet and chat for face-to-face socializing, where the moderating factor of in-person contact tempers the extremes of emotion that are seen otherwise in text only communication.
it might also cause further polarization and tribalism among politicians as well as insular behavior and an increasing sense of alienation.
I agree there are efficiencies to be found in remote access and perhaps another benefit might be that Members of Congress would be more approachable to their constituents when they remain longer within their own districts among ordinary people and not removed and among elitists in D.C.
Yet, if the process was more expedient and efficient, there might be a tendency toward more knee-jerk legislation and hasty decisions. In that case a lot of emotion / fear based decisions could adversely affect the citizenry, with no time for reflection or cooling off.
Darren, you probably have a valid point here.
Too
Late JT
The Dems are already in Outer space
Unaware of the plight of the American people.
Nancy and Chucky need it.