The administrative state

Mollie Hemingway at the Federalist just rips to shreds the Obamacare contraceptive mandate.  In the course of doing so, she points to an overarching problem:  The establishment of the administrative state, in which Constitutional government is replaced by administrative agencies, which have the power to make laws, enforce them, and judge and punish those who do not comply.  That is to say, we now have bureaucracies that have legislative, executive, and judicial power. [Read more...]

Madisonian politics

George Will has found something that President Obama and the Tea Party have in common:  Both disdain Madisonian politics; that is, the checks and balances that require the different factions to compromise with each other, as built into the very structure of Constitutional governance. [Read more...]

Should we abolish the Constitution?

Louis Michael Seidman, a Georgetown professor of Constitutional Law, no less, argues in the New York Times that we should do away with the Constitution.

Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.

As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination? . . .

This is not to say that we should disobey all constitutional commands. Freedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property are important, whether or not they are in the Constitution. We should continue to follow those requirements out of respect, not obligation.

Nor should we have a debate about, for instance, how long the president’s term should last or whether Congress should consist of two houses. Some matters are better left settled, even if not in exactly the way we favor. Nor, finally, should we have an all-powerful president free to do whatever he wants. Even without constitutional fealty, the president would still be checked by Congress and by the states. There is even something to be said for an elite body like the Supreme Court with the power to impose its views of political morality on the country.

What would change is not the existence of these institutions, but the basis on which they claim legitimacy. The president would have to justify military action against Iran solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief. Congress might well retain the power of the purse, but this power would have to be defended on contemporary policy grounds, not abstruse constitutional doctrine. The Supreme Court could stop pretending that its decisions protecting same-sex intimacy or limiting affirmative action were rooted in constitutional text.

The deep-seated fear that such disobedience would unravel our social fabric is mere superstition. As we have seen, the country has successfully survived numerous examples of constitutional infidelity. And as we see now, the failure of the Congress and the White House to agree has already destabilized the country. Countries like Britain and New Zealand have systems of parliamentary supremacy and no written constitution, but are held together by longstanding traditions, accepted modes of procedure and engaged citizens. We, too, could draw on these resources.

What has preserved our political stability is not a poetic piece of parchment, but entrenched institutions and habits of thought and, most important, the sense that we are one nation and must work out our differences.

via Let’s Give Up on the Constitution – NYTimes.com.

But why would we even have a Congress, a Senate, a President, and a Supreme Court and how would we know how long their terms are without a foundational, authoritative plan of government?  How would we protect free speech without some kind of supreme law?  Which would be a constitution?  Yes, Great Britain and members of the Commonwealth do without a written constitution, instead following an unwritten collection of traditional principles.  But for that to work, you would need to have a respect for tradition, which Prof. Steidman, with its dismissal of the “white propertied men” of the 18th century, is hardly encouraging.

Besides, as pointed out by David T. Koyzis (to whom I tip my hat for putting me onto this piece) respect for the Constitution and the consequent rule of law that it makes possible is one of the “enduring traditions and habits of thought” that Seidman wants to replace it with.  (First Thoughts of December 31 has posted three critiques of Seidman’s column.)

Balance of powers vs. balance of parties

In his column on attempts to the reform the filibuster, Ezra Klein points out that the Founders built into the Constitution a balance of competing arms of the government that would check and balance each other.  What we have now, however, is a system of competing political parties that check and balance each other.

It’s true the Founding Fathers wanted to make legislating hard. That’s why they divided power among three branches. It’s why senators used to be directly appointed by state legislatures. It’s why the House, the Senate and the president have staggered elections, so it usually takes a big win in two or more consecutive elections for a party to secure control of all three branches.

But the Founders didn’t want it to be this hard. They considered requiring a supermajority to pass legislation and rejected the idea. “Its real operation,” Alexander Hamilton wrote of such a requirement, “is to embarrass the administration, to destroy the energy of government and to substitute the pleasure, caprice or artifices of an insignificant, turbulent or corrupt junta, to the regular deliberations and decisions of a respectable majority.” Sound familiar?

The Founders also opposed political parties — though they went on to start a couple — and couldn’t have foreseen how highly disciplined parties would subvert the political system they designed. Instead of the branches competing against one another, as they envisioned, we now have two parties competing uniformly across all branches.

via Is this the end for the filibuster?.

Parliamentary systems require political parties.  The leader of the majority party becomes the Prime Minister.  Such forms of government work best when there are a number of parties that can then form coalitions and alliances.  I suppose our political parties were copied from those of England.

America’s constitution, however, does not require parties, and our national founders warned against them.

What would happen if we were to abolish all political parties?  As it is, the role of parties in elections has shrunk considerably with SuperPacs and independent campaign fundraising.  Why not turn that into a virtue?

Individual candidates and politicians would still form factions, caucuses, and interest-groups.  But these alliances would be fluid, varying from issue to issue.  There would still be individuals who ran as conservatives, liberals, and other ideologies in the legislature, and there might be organizations that supported them.  But a  Senator with libertarian sympathies could vote with  liberal colleagues on drug laws and conservative colleagues on free market issues.  Pro-life coalitions could include both religious conservatives and social-justice liberals.

I know it will be said, political parties are inevitable.  And, arguably, they once were.  But what do political parties do now in the age of the internet, political action committees, open primaries, and grass roots activism?  They serve as the gatekeepers of who gets to be on the ballot in the presidential campaigns.  But their political conventions have become mostly irrelevant.  Surely another mechanism could be put into place, such as a series of primary elections, beginning on the local level and continuing onto the state, regional, and national levels.  Couldn’t this re-vitalize our democracy and our representative form of government?

Why do we even have a president?

Historian Kenneth C. Davis looks at the origin of the office of the President, something our Founders went round and round about at the Constitutional Convention.

In that steamy Philadelphia summer of 1787, as the Constitution was secretly being drafted and the plan for the presidency invented — “improvised” is more apt — the delegates weren’t sure what they wanted this new office to be. To patriots who had fought a war against a king, the thought of one person wielding great power, at the head of a standing army, gave them the willies.

Still, Hamilton asserted in the Federalist Papers that this experimental executive must have “energy” — a quality characterized by “decision, activity, secrecy and dispatch.” Hamilton knew that the times demanded bold action. Operating under the Articles of Confederation, a weak Congress had dithered through crisis and conflict, unable to collect taxes or raise an effective army. And the presidents of Congress — 14 of them from 1774 to 1788 — wielded nothing more threatening than a gavel. They couldn’t even answer a letter without congressional approval.

As the delegates to the Constitutional Convention sweltered behind closed windows, in the same Pennsylvania State House where the Declaration of Independence had been adopted 11 years earlier, they disagreed about many things. But no issue caused greater consternation than establishing an executive office to run the country.

Would this executive department be occupied by one man or a council of three? What powers would the executive have? How long would he hold office? How would the executive be chosen? And how would he be removed, if necessary? (Without an answer to this question, Ben Franklin warned, the only recourse would be assassination.)

On these questions, the record points down a tortuous path filled with uncertainty and sharp division. While some delegates feared creating a presidency that could become a “fetus of monarchy,” others called for an executive who could negotiate treaties and make appointments — or command an army if the nation was threatened. Or at least answer the mail. . . . [Read more...]

Politics swallowing up the task of governing

We touched on this with the bill prohibiting sex-selection abortion, but here it is again, reported in a matter-of-fact way:

Democrats will bring to the Senate floor on Tuesday the Paycheck Fairness Act, a bill that is supposed to help close the wage gap between men and women.

The measure will fail, as intended, because at its core it is not so much a legislative vehicle as a political one intended to embarrass Republicans and help President Obama and congressional Democrats with female voters in November.

Democrats are making an obvious connection between the two as the ‘war on women’ loses traction as an election issue.

The bill, which needs 60 votes to clear procedural hurdles, faces almost certain defeat because most Republicans plan to vote against it. But Obama and Senate Democrats are hoping those votes will give them the opportunity to paint congressional Republicans as hostile to women’s interests.

The strategy is part of an increasingly common practice in Congress of moving legislation aimed solely at producing political results. For House Republicans, the strategy means votes to roll back parts of the Obama 2010 health-care reform bill or votes to highlight rising gasoline prices.

In the Senate, Democrats believe a sustained focus on women’s issues should help them maintain a slim majority after the November elections.

via Paycheck Fairness Act expected to fail – The Washington Post.

“The measure will fail as intended”!  The purpose of the legislation is just to score political points by embarrassing those who vote against it.   Of course, bills before the legislature often have a political sub-text.  But here Congress isn’t even trying to govern.  The members are only trying to get re-elected with seemingly no thought of the constitutional purpose of their institution; namely, to govern the country.


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