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.

The People’s Rights Amendment

House Democrats have introduced a proposed constitutional amendment that would specify that the rights guaranteed by that document apply only to individuals and not to “corporate” entities.  The intention is to undo the Supreme Court’s ruling that allows organizations to spend unlimited money on political campaigns since they have free speech.  But a “corporation” is not just a business organization.  The Amendment–introduced by Jim McGovern (D-Mass) and co-sponsored by Minority Leader Nancy Pelosi, 26 other Democrats, and one Republican–would have far-reaching consequences, as George Will points out:

[McGovern's]  “People’s Rights Amendment” declares that the Constitution protects only the rights of “natural persons,” not such persons organized in corporations, and that Congress can impose on corporations whatever restrictions Congress deems “reasonable.” His amendment says that it shall not be construed “to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, freedom of association and all such other rights of the people, which rights are inalienable.” But the amendment is explicitly designed to deny such rights to natural persons who, exercising their First Amendment right to freedom of association, come together in corporate entities to speak in concert.

McGovern stresses that his amendment decrees that “all corporate entities — for-profit and nonprofit alike” — have no constitutional rights. So Congress — and state legislatures and local governments — could regulate to the point of proscription political speech, or any other speech, by the Sierra Club, the National Rifle Association, NARAL Pro-Choice America or any of the other tens of thousands of nonprofit corporate advocacy groups, including political parties and campaign committees.

Newspapers, magazines, broadcasting entities, online journalism operations — and most religious institutions — are corporate entities. McGovern’s amendment would strip them of all constitutional rights. By doing so, the amendment would empower the government to do much more than proscribe speech. Ilya Somin of George Mason University Law School, writing for the Volokh Conspiracy blog, notes that government, unleashed by McGovern’s amendment, could regulate religious practices at most houses of worship, conduct whatever searches it wants, reasonable or not, of corporate entities, and seize corporate-owned property for whatever it deems public uses — without paying compensation. Yes, McGovern’s scythe would mow down the Fourth and Fifth Amendments, as well as the First.

The proposed amendment is intended to reverse the Supreme Court’s Citizens United decision, which affirmed the right of persons to associate in corporate entities for the purpose of unrestricted collective speech independent of candidates’ campaigns. The court’s decision was foreshadowed when, in oral argument, the government’s lawyer insisted that the government could ban a 500-page book that contained one sentence that said “vote for” a particular candidate. McGovern’s amendment would confer upon Congress the power to ban publishing corporations from producing books containing political advocacy, when Congress considers a ban reasonable — never mind the amendment’s rhetoric about the “inalienable” rights people enjoy until they band together to act in corporate entities.

via Taking a scythe to the Bill of Rights – The Washington Post.

Is the U.S. Constitution obsolete?

[An earlier version of this post went up with just the raw quotation and with my introduction, edits, and commentary  not showing up, for some reason.  Sorry for the confusion.]

Conservatives worry that the U. S. Constitution is being ignored.  The next step is for the Constitution to be spoken against and then repudiated.  That seems to be happening, even by a Supreme Court Justice!  In the meantime, the rest of the world has stopped imitating America’s constitutional system, which, in many people’s minds does not parcel out enough rights, and the rights it does recognize are the wrong ones:

In a television interview during a visit to Egypt last week, Justice Ruth Bader Ginsburg of the Supreme Court seemed to agree [with the irrelevance of the Constitution to new nations today]. “I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said. She recommended, instead, the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights.

The rights guaranteed by the American Constitution are parsimonious by international standards, and they are frozen in amber. As Sanford Levinson wrote in 2006 in “Our Undemocratic Constitution,” “the U.S. Constitution is the most difficult to amend of any constitution currently existing in the world today.” (Yugoslavia used to hold that title, but Yugoslavia did not work out.)

Other nations routinely trade in their constitutions wholesale, replacing them on average every 19 years. By odd coincidence, Thomas Jefferson, in a 1789 letter to James Madison, once said that every constitution “naturally expires at the end of 19 years” because “the earth belongs always to the living generation.” These days, the overlap between the rights guaranteed by the Constitution and those most popular around the world is spotty.

Americans recognize rights not widely protected, including ones to a speedy and public trial, and are outliers in prohibiting government establishment of religion. But the Constitution is out of step with the rest of the world in failing to protect, at least in so many words, a right to travel, the presumption of innocence and entitlement to food, education and health care.

It has its idiosyncrasies. Only 2 percent of the world’s constitutions protect, as the Second Amendment does, a right to bear arms. (Its brothers in arms are Guatemala and Mexico.) . . . .

“America is in danger, I think, of becoming something of a legal backwater,” Justice Michael Kirby of the High Court of Australia said in a 2001 interview. He said that he looked instead to India, South Africa and New Zealand.

Mr. Barak, for his part, identified a new constitutional superpower: “Canadian law,” he wrote, “serves as a source of inspiration for many countries around the world.” The new study also suggests that the Canadian Charter of Rights and Freedoms, adopted in 1982, may now be more influential than its American counterpart.

The Canadian Charter is both more expansive and less absolute. It guarantees equal rights for women and disabled people, allows affirmative action and requires that those arrested be informed of their rights. On the other hand, it balances those rights against “such reasonable limits” as “can be demonstrably justified in a free and democratic society.”

via ‘We the People’ Loses Appeal With People Around the World – NYTimes.com.

I suspect that in the years ahead, since nations come and go, that eventually we will be hearing calls to eliminate our obsolete constitution in favor of something new.   The new constitution will feature new rights (to food?  to health care? to travel?), but other rights will pass away–the right to keep and bear arms will be sure to go.  Also, if Canada is to be our guide, the right to express criticisms of Islam.  And we can be sure that there will be lots of other “reasonable limits” to what we will be allowed to do.

The National Debt and the Constitution

As we wrestle with the national debt and as Congress debates over whether to raise the debt limit or risk default, we should consider what the Constitution says about the issue.  First, Congress does have the right to borrow money:

‘The Congress shall have power … To borrow money on the credit of the United States.’  Article I, Section 8

But read on to the 14th Amendment and you find this:

‘The validity of the public debt of the United States … shall not be questioned.’  14th Amendment, Section 4

The 14th Amendment deals with the wreckage of the Civil War, giving citizenship to former slaves by virtue of their having been born here (another controversial issue in the immigration debate, though clearly addressed in the Constitution) among other things.  Article 4 repudiated the debt of the Confederacy, but in doing so it affirmed that the United States will always honor its debts.

This was a brilliant addition, serving as the basis for the idea that U.S. bonds are backed by the “full faith and credit” of the United States of America, meaning they are a rock solid investment.  It isn’t just our full faith and credit that backs them but the Constitution itself.  It would be unconstitutional to default on our loans.

But, as some experts are saying now in the midst of the debt ceiling negotiations in Congress, the 14th Amendment would render all of that moot.  There is no need to raise the debt ceiling because the Constitution provides that all debt that we incur must be paid.  The money that our lawmakers are squabbling over has already been spent and has been authorized by statute.  According to the 14th Amendment, that debt has to be honored.

Debt can certainly be too high and need to be controlled.  But the 14th Amendment means that whatever we borrow must be paid back.   According to some attorneys, if the current negotiations to raise the debt ceiling break down, to prevent the country from going into default, the President simply needs to sign an executive order invoking the 14th Amendment and keep borrowing money to pay our obligations, despite what Congress does.

Do you see any flaws in this legal reasoning?

 

see U.S. Constitution Under Siege over Libya, Taxes, Health Care – TIME.

HT:  Jimmy Veith

You be the judge

Two Supreme Court cases. . . .

(1)  A man was shot.  Just before he died, he said, “Rick shot me.”  So Rick was arrested.  The problem is, the Constitution requires that the accused be able to face the witnesses against him so they can face cross-examination.  In this case, the witness–who was also the victim–is dead.  Therefore, according to the Michigan Supreme Court, the victim’s dying words identifying his killer are not admissible in a court of law.

The Supreme Court overturned that ruling, 6-2.  Rick will have to pay for his crime, on the testimony of his victim.  Justice Antonin Scalia, a Constitutional originalist, wrote a bitter dissent.  In this case, the court favored what might be called common sense over and against the literal reading of the Constitution.

Court: Victim’s dying words may be used at trial.

(2)  Westboro Baptist church has a ministry of picketing the funerals of dead servicemen, carrying signs that say things like  “Thank God for dead soldiers,” and “God hates America.”  Efforts have been made to keep the picketers away from the funerals and from the families of the bereaved.

The Supreme Court, with only one dissenting vote (that of Justice Samuel A. Alito), ruled that the free speech provisions of the Constitution protect the protesters, who must be allowed to show up at funerals with their offensive placards.  In this case, the court favored the literal reading of the Constitution over what might be called common sense.

Supreme Court rules First Amendment protects church’s right to picket funerals

Conservatives are supposed to take the Constitution literally.  That would suggest being against allowing a victim’s dying words to be used as testimony AND supporting the free speech rights of the funeral protesters.  Is that what you believe?  If not,  what is your constitutional basis?

Congress acknowledges the Constitution

This story in the Washington Post takes a dismissive and snarky tone, but I think this is a splendid idea.  Especially the part about requiring each bill to cite its constitutional authority.

When Republicans take over the House next week, they will do something that apparently has never been done before in the chamber’s 221-year history:

Two new rules will give Constitution a starring role in GOP-controlled House

They will read the Constitution aloud.

And then they will require that every new bill contain a statement by the lawmaker who wrote it citing the constitutional authority to enact the proposed legislation.

Call it the tea party-ization of Congress.

via Two new rules will give Constitution a starring role in GOP-controlled House.

To just associate this with the tea party in that condescending way is out of line.  Why would any lawmaker object to this?  They take an oath to defend the Constitution.  Why shouldn’t they defer to it?  Or do some journalists and politicians really believe in unlimited government?

At any rate, this could at least be an educational experience.  As Ezra Klein of the Washington Post told an interviewer, “The issue of the Constitution is that the text is confusing because it was written more than 100 years ago and what people believe it says differs from person to person and differs depending on what they want to get done.”  The thing dates way back to 1911 at least, so it surely can’t be binding on us postmodernists.

People often say that everything can be interpreted any number of ways, but I wonder about that. What part of the Tenth Amendment, the basis for that “radical” requirement to specify the constitutional authority for each bill, is so open-ended in its possible meanings?

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.