How Laws Made by Private Groups Affect Us All: The Presidential Primaries For Starters

-- By JulianBaez - 12 Feb 2008

Private Law

Laws are not simply statutes created by a governmental body enforced on the public en masse. Private groups also come up with laws to govern themselves. Home owners associations make laws about what colors homes can be painted, who houses can be sold to and even where a satellite dish can be placed. Children make laws on how to play tag, how to select who goes first (“dibs”), and how to punish those who break these laws.

The Pashtun tribes of Afghanistan and Pakistan have a law where one must take a stranger who asks for sanctuary into one’s home. This is true if the stranger is one’s mortal enemy, Osama bin Laden, or a US soldier. When a Pashtun tribe granted sanctuary to Al-Qaeda members in order to kill and rob them, surrounding tribes amassed a militia in order to destroy the offending tribe and enforce their private law.

The Presidential Primaries

Laws about playing tag affect no one outside the children playing while laws about sanctuary may determine where the most wanted man in the world is hiding. Currently the private law of the Democratic and Republican Party Presidential Primaries are shaping the future of the nation and maybe the globe. We must always remember these are private groups whose members also run for public office. Laws on who can vote in a primary or caucus, which can exclude whose affiliated with another party or only include member f their own party, when the registration deadline is, and how their delegates must be allocated affect the entire nation’s choice for President this November.

Although all these private laws created by the country’s premier political parties affect our democracy in far-reaching ways. However, since Super Tuesday (2/5/2008), the public is slowly becoming aware of the implications of how delegates are allocated after a primary vote, a law decided by each part privately. For the most part, Republican result in the winner receiving every delegate even if they don’t receive a majority of the votes (i.e John McCain? wins all of Washington’s delegates with only 34% of the votes). This winner-take-all system has resulted in McCain? receiving the vast majority of delegates. Due to this choice of private law, McCain? will now be one of two realistic choices for President despite receiving less than a majority of the votes from his own private group. Had the Republicans used the Democratic Party system, other Republican contenders like Mitt Romney and Mike Huckabee could continue to run with a realistic chance of winning the nomination (Romney has opted to step out while Huckabee continues to tilt at windmills to make a point).

The majority of Democratic primaries allocate delegates proportionally which results in primary losers receiving some delegates. This private law allows losers to “live to fight another day” and continue to run in later primaries with a reasonable chance of catching a previous winner. Currently, this system has assured neither Barack Obama nor Hillary Clinton can win decisively and gain a comfortable lead in delegates over the other. For now, McCain? ’s opponent remains unclear.

But why is this important? Does it really make a difference how the Presidential nominees are chosen? It does if one believes the election for the President of the United States is meaningful. A direct result of the Republican Party law allocating delegates in a winner-take-all system is Romney and Huckabee losing the Republican nomination and McCain? winning (at least this early). This affects who will be the next President of the United States, and all the power that position wields. Even those who believe the Democratic Party nominee is assured a victory in November admit those choosing between Obama and Clinton will take McCain? into account. McCain? appeals to Independent voters and will make national security the forefront of his campaign in a way no other candidate can. His nomination also means a debate moderator will not ask if either candidate supports the torture of terrorists since he agrees with both Clinton and Obama on the issue.

This is all the result of Republicans and Democrats making a choice about what how to allocate delegates, a matter of private law. No publicly elected body has had a say on the issue, yet this choice of what law to impose on their parties internally now has drastic affects on the country and its policies.

Stop, Look, Listen, Change

We must be aware of how the laws privately decided and enforced by those around us are affecting us. These can be as simple as the distance of the nearest McDonald? ’s to your home, which franchise agreements between the company and the franchisor determine. They can also be as complex as private laws fixing prices on food or airfare, which are illegal according to public law but private groups create nonetheless.

Only by seeing, understanding and affecting these bodies of private law which surround and affect us can we begin to change them to better serve our own interests (and the interests of others if one is so inclined). This is true of all bodies of private law which affect our options and make lasting impressions on those outside of the private group. We probably can leave children’s games of tag alone. But the Presidential Primaries are an entirely different matter, unless you like John McCain? ’s nomination while Barack Obama and Hillary Clinton still fight it out.

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