Good Monday morning Fellow Seekers,
(Don’t be confused by the jocular tone just below, this post poses a serious question.)
If you don’t know what day this is, you’ve already missed the first question of the quiz I plan to post after lunch. But I’m not going to count it off your score, since this is just the warm-up.
Answer: Today is Constitution Day, the 220th anniversary of the day the framers of the U.S. Constitution held their final meeting and signed the draft before submitting it to the 13 states for ratification.
(Here’s a little bonus History-Nerd trivia. If you’ve ever wondered why Delaware claims on its license plates to be the “First State,” it’s because Delaware was the first state to ratify, on Dec. 7, 1787, And the Delawareans didn’t even know at the time that it was Pearl Harbor Day.)
But down to cases. The quiz will be just for fun. Before we get there, the exigencies of the moment require that we put the Constitution itself to much more serious test.
Our Constitutional system, different from most of the world’s democracies, creates:
- an extremely powerful chief executive
- whose authority does not depend on the support of the legislative branch,
- who can win election via the Constitution’s strange Electoral College scheme without winning a majority of the popular vote,
- who is very difficult to remove even if he has lost the confidence of the country,
- and whose policies can withstand the opposition of the legislative branch until the opposition rises to the level of two-thirds-plus-one in each of two houses necessary to override a veto.
At times in our history, the framers plan of separation of powers and the system of checks and balances have been celebrated as providing great stability, compared with some parliamentary systems in which the identity of the prime minister can change frequently.
How are we feeling about these aspects of the system now?
Eric –
You ask, “How do we feel about these aspects of the system (as defined by the Constitution) now? Well, before I can address that question, I have to raise some questions about you premises:
“Our Constitutional system, different from most of the world’s democracies, creates:
· an extremely powerful chief executive
· whose authority does not depend on the support of the legislative branch,
· who can win election via the Constitution’s strange Electoral College scheme without winning a majority of the popular vote,
· who is very difficult to remove even if he has lost the confidence of the country,
· and whose policies can withstand the opposition of the legislative branch until the opposition rises to the level of two-thirds-plus-one in each of two houses necessary to override a veto.”
First, I would question whether the Constitution creates an “extremely powerful” chief executive. Certainly, it creates opportunity for an executive to wield power, but it doesn’t grant or create the power that, say, a weak king might wield. One would hardly call James Buchanan or Andrew Johnson powerful chief executives, yet the president they sandwich, Abraham Lincoln, was certainly one of the strongest.
That brings us to your second point. Authority of the president does depend to a large extent on the support of the legislative branch. The problem is, the legislative branch over time has abdicated much of its authority to the executive branch. For example, constitutionally, the president cannot declare war; yet we have been fighting undeclared wars since WWII. Only the House can initiate appropriation bills, but instead of that process, Congress grants a budget to organizations like FEMA, which enables the executive, not the legislature, to appropriate actually funds (on narrow political grounds). Neither of those powers is implicit in the Constitution. The frightening point is that the Constitution makes no distinction between a president’s foreign policy powers and his domestic powers; thus, when Congress abdicates a power, such as the ability to commit troops without declaring war, a program like the president’s domestic wiretapping program is legitimized.
Third, I hope you are not advocating a national popular vote – tyranny of the majority. The Electoral College is the one great moderating force in American politics. You think the country is divided now – imagine if one could win election simply by appealing to the greed of 51 percent of the people at the expense of the other 49 percent.
Fourth – I agree it is very difficult to remove a president, and I think it should be. That aside, it is very easy to marginalize a president who has lost the confidence of the country. I’m guessing your points are inspired by the Iraq war, so I’ll use that as an example. Congress has the power of the purse and, supposedly, the support of the country against the war. If Congress wanted to do so and accept the risks, it could exert far more influence on the conduct of the war than it has. The Constitution grants it the power – it simple lacks the courage to use it.
Finally, once again I hope you are not advocating for simple majority rule. I’ve gone too long already, but might I suggest that “Rule of Law” entails more than simply following written law instead of the whims of tyrants. It entails how laws are passed. When a legislature passes a law that act is no less arbitrary than when a law is the result of the whim of single individual. Law is no less uncertain when it can be changed by a legislature than when it is at the whim of a dictator. The veto and 2/3’s plus 1 rule intends to make it difficult to pass laws and force consideration of every law that would, by definition of a “representative democracy,” impose the will of a majority on a minority.
So how do I feel about the system? Much as history as proven it to be – a poor system of government, but all the others are so much worse.
*So how do I feel about the system? Much as history as proven it to be – a poor system of government, but all the others are so much worse.*
The Captain has been practicing his platitudes! Here’s a little of what Sandy Levinson at Balkinzation said about the Framers and our own unwillingness to consider constitutional change:
*I am writing from Las Vegas, where I will be delivering the Constitution Day talk this evening at the UNLV Law School. It is obviously unncecessary to rehearse in full my argument for this audience, other than to emphasize that I am more than willing to honor the Framers for their courage in confronting the exigencies of their political situation in 1787l. My complaint is that we are totally unwilling to emulate them.*
http://tinyurl.com/2xm8yt
There is little question that people like John Yoo and Robert Delahunty and others proponents of the “unitary executive” have urged and facilitated a pretty unprecedented power-grab by George Bush. They quite openly claim that, yes, the president is above the law, at least in national security matters, which of course is almost everything.
That Captain is correct that the process has been facilitated by a supine congress, a Republican one until recently, but still mystifyingly so today with the Dems in charge.
Although he regrets having to do so, Spot also agrees with the Captain that the Electoral College is, on balance, a good thing to have. It gives perhaps too much power to the small states, and it has, a couple of times, installed a minority president. Well, maybe once, if you consider Bush v. Gore. But never mind.
Can you imagine the chaos if we had a national popular election for president and it came out with a 500 vote majority for one candidate? You’d have to recount the whole country. You thought the Florida election controversy in 2000 took a long time to resolve? Oy.
If I would have taken a peek at WhiteHouse.gov, and other such web sites, yesterday (11-17) there might have been all kinds of additional commemorative days.
[Some folks might refer to it as O.J. Simpson might be in trouble again day.]
In the past I have purchased at least one of Eric’s books. After reading the aforementioned responses, I don’t think that I’ve purchased any of Craig Westover’s, although I may try is website/blog sometime.
Were I to excerpt a paragraph from Levinson’s piece (referenced by Spotty) that captures its essence it would be this graf relating to health care legislation:
“What I do know, though, is that a bipartisan compromise has been worked out with regard to what most thoughtful people, including Republican governors, believe is an important national issue, and that it seems likely to be torpedoed by a single individual, stunning ignorance and incuriosity–just read Alan Greenspan’s latest missive about the latter–who has the general support of somewhere around a third of the country, who is completely unaccountable to the electorate since, of course, he’s never again running for elective office. Why exactly do we/should we celebrate such a system of government?”
First, let us understand that there is nothing magical or morally superior about a “bipartisan” agreement as opposed to legislation rammed through Congress by either of the major political parties. A bipartisan agreement is still a majoritarian decision – a majority of legislators votes to impose its will on a minority for “the common good.” In other words, the freedom of some individuals will be constrained (their labor in the form of taxes will be confiscated) to create benefit for others to whom they are not obligated.
The problem is Spotty and Levinson both miss the fundamental distinction between “principles” and “values.” The idea that society should provide for all children to have health care is a “value.” It is internally originated, subjective, and subject to change over time as social mores shift and evolve. A “principle” is external to the individual, is both universal and objective.
The “principle” that justifies a $60 billion dollar expenditure to impose the bipartisan health care value is that government determines what is a “right,” that government grants rights to individuals and the needs of society as defined by the government may justly constrain the freedom of the individual.
The contrary principle, upon which the Constitution (via the Declaration of Independence) is founded, is that individuals have natural rights that precede society and the role of government is protecting those rights that we see as “self-evident truths.” Government may only constrain the freedom of those who would, by force or fraud, constrain the freedom of others. The proper role of government in support of the value that all children should have health care would be to remove legal barriers that constrain them from obtaining health care today – not imposing constraints on one group to their benefit.
While I have no illusion that GWB takes a principled stance in making his veto, his ignorance, political popularity and lame duck standing do nothing to invalidate his veto. His veto is not the “single act of an individual” – two thirds of legislators could over ride him. Nonetheless, the question Spotty and Levinson leave hanging is, “What is the fundamental difference between the arbitrary action of a bipartisan majority imposing its will on a minority and the action of a single individual doing the same?” Do numbers – critical mass – alone justify imposing values on others?
Our constitutional system should and is celebrated because far better than any other it makes it difficult for a majority to impose its will on a minority.
A final thought on Levinson’s closing graf:
“So I’m delighted to celebrate the spirit of Madison and others who engaged in gimlet-eyed scrutiny of the Articles of Confederation and did what they thought necessary to save the country. I’m less than delighted with a notion of Constitution Day that ignores that aspect of their character and instead says that we in 2007 have any great reason to feel gratitude for being trapped in the cage constructed 220 years ago.”
Levinson’s statement fails to distinguish between statutory law and common law; it fails to take into consideration how each reflects on the “Rule of Law.” Levinson ignores that over 220 years our concept of law under the constitution has evolved with every jury trial and every court decision. For the most part, it has evolved slowly and predictably. Whether we do so consciously or not, much of our behavior is based on our certainty that what the law was yesterday it will be today and likely be tomorrow – for everyone equally. That is the accurate conceptualization of the “Rule of Law.”
Levinson and Spotty advocate a statutory approach to law. Law is not what millions of people over hundreds of years through their behaviors and actions have evolved the law to be. Law is whatever the legislature says it is. There is no certainty that the law today will be the law tomorrow (today one can smoke in a bar; Oct. 1 smoking in a bar becomes a crime). Their interpretation of the “Rule of Law” is, “Whatever the legislature says is the law is the law for everyone, but it is the law!”
The “Rule of Law” inherent in the self-evident truths of “equality” and the natural rights of “life, liberty and the pursuit of happiness” is not and should not be dependent on arbitrary will, whether that of a king, a dictator, a “unitary executive” or a bipartisan group of legislators. Principles do not change over time – either we live in a society where for the good of society some people can impose their will on others or we live in a society where individuals grant just and limited powers to government for the purpose of protecting their individual rights.
The Constitution, methinks, opts for the latter.
Spot has a blog to write and has therefore no desire to engage Sticks in an extended dialectic here. However.
*The contrary principle, upon which the Constitution (via the Declaration of Independence) is founded, is that individuals have natural rights that precede society and the role of government is protecting those rights that we see as “self-evident truths.” Government may only constrain the freedom of those who would, by force or fraud, constrain the freedom of others. The proper role of government in support of the value that all children should have health care would be to remove legal barriers that constrain them from obtaining health care today – not imposing constraints on one group to their benefit.*
The Constitution is most certainly not founded on “natural law.” Sticks tries to sneak it in on the basis of a single rhetorical flourish in the Declaration of Independence: “all men are endowed by their Creator, etc. and etc.” But one must remember the audience to whom the Declaration was directed: George III, who believed that he ruled by natural law as he understood it: the divine right of kings. Our founders were Enlightenment actors; literally rebelling against that nonsense.
As Spot has written several times, and which Sticks may have even read, the Declaration of Independence is not a governing document; it has no force of law. None. The Constitution is the basic governing document of the United States; it makes references to anything close to natural law. The first is the prohibition of religious tests or oaths for office holders, and the other is the prohibition against the establishment of government religion in the 1st amendment. (paired with the Free Exercise clause to protect purely private observance.)
that should read “makes two references to anything close”
[…] wrote Monday that the U.S. Constitution creates a chief executive more powerful than exists in most democracies. In the comment thread, Craig Westover cogently disputed the point, and argued that much of what […]