As many on this blog know, I often object to those who criticize our Constitution as a way of excusing their circumvention of civil liberties or the separation of powers. Some in the Bush Administration took that position in suggesting that our Constitution was somehow a contributor to the 9-11 attacks — in their push to pass the Patriot Act. President Obama seems to take up a similar lament to rationalize his repeated violation of the separation of powers in recent years. Obama raised the issue with donors to suggest that the Framers got it wrong in their design of Congress and Article I of the Constitution. Indeed, he appears to be a critic of the “Great Compromise” that gave small states an equal voice in the Senate. It is of course not his assuming legislative and judicial powers in the creation of what I have called an “uber presidency” that fundamentally changed our system. There is no real need for compromise of any kind in the new emerging model of executive power so it should not be a surprise that “Great Compromise” would appear particularly precious and unnecessary.
I recently testified (here and here and here) and wrote a column on President Obama’s increasing circumvention of Congress in negating or suspending U.S. laws. Obama has repeatedly suspended provisions of the health care law and made unilateral changes that were previously rejected by Congress. He has also moved hundreds of millions from one part of the Act to other parts without congressional approval. Now, his administration is reportedly changing key provisions of the ACA to potentially make billions of dollars available to the insurance industry in a move that was never debated, let alone approved, by the legislative branch. I just ran another column this month listing such incidents of executive over-reach that ideally would have included this potentially huge commitment under Obama’s claimed discretionary authority.
President Obama is now responding by attacking the Constitution and saying that James Madison and others simply got it wrong by guaranteeing equal voting in the United States Senate. Of course, he has not shared such views with the public. Instead, he discussed them with a small group of Democratic donors who are facing increasing opposition from friends in supporting Obama. Obama met with these donors in a private event in Chicago and put the blame on the Framers: “Obviously, the nature of the Senate means that California has the same number of Senate seats as Wyoming. That puts us at a disadvantage.” These comments also appear on an official transcript. The President does not call to change the Constitution but laments about the structure of the Senate and the equality of small and large states.
Not to spoil the new post hoc spin but I find it less than obvious. The “disadvantage” that the President has been complaining about is the refusal of Congress to do what he has demanded. Ironically, he has faced more consistent opposition in the House, not the Senate. The House is divided according to population, which Obama appears to prefer.
The problem is not the Constitution but the division in the country. We are divided on a great number of issues. Roughly fifty percent of Americans hate Obamacare and want it repealed. Immigration and other issues continue to divide voters in both parties. While we have a representative democracy, it still has democratic elements. Congress reflects the divisions in the country. When we go through periods of division, fewer things get done and really big reforms or changes are particularly difficult. However, such division is no license to “go at it alone” as the President has promised. The Madisonian system is designed to force compromise and to vent the factional pressures that have torn apart other nations. That is precisely why the President’s actions are so dangerous. They are creating a dominant branch in a tripartite system that allows for unilateral action from a president. Such powers will outlast this president and will likely come back to haunt those Democrats and liberals who are remaining silent (or even applauding) this president’s actions.
As for the Senate, the “Great Compromise” in 1787 fit well in the anti-factional design of the Article One — even though Madison himself was once an advocate for proportional distribution and did not agree that large states would join together against small states. Where other constitutions (as in France) tended to allow factional pressures to explode outwardly, the U.S. Constitution allows them to implode within the legislative branch — funneling these pressures into a process where disparate factional disputes can be converted into majoritarian compromises. This happens through the interactions of houses with different constituencies and interests. The House tends to be the most responsive and desirous of the fastest reaction to national problems. After all, the members are elected every two years and represent smaller constituencies. The Senate has longer term and larger constituencies. It tends to put the breaks on legislative impulse. At the same time, the mix of different interests from large and small states changing the dimension of legislative work in the Senate — adding adding pressure for compromise and reevaluation.
The Great Compromise was forged after various plans from Virginia, New Jersey, and other states were debated. There was considerable support for bicameralism though William Paterson of the New Jersey suggested a single house system (with equal voting for the states). Some like Roger Sherman sought proportional representation in the “lower” house while guaranteeing equal representation in the “upper” house. Virginia delegates like Edmund Randolph and James Madison (as well as Alexander Hamilton) thought it should all be proportional in a bicameral system.
The conference rejected the New Jersey plan which would have created an unicameral legislature with one vote per state. However, the convention deadlocked on the Virginia plan. The issue was referred to committee and out emerged the Great Compromise or what was known as the Connecticut or Sherman compromise. The proposal was put forward by Roger Sherman and Oliver Ellsworth of Connecticut to blend the Virginia (large-state) and New Jersey (small-state) proposals. Sherman called for “That the proportion of suffrage in the 1st. branch [house] should be according to the respective numbers of free inhabitants; and that in the second branch or Senate, each State should have one vote and no more.”
There is a moderating influence that has come from the additional constituency factor of small versus large states in the Senate. In fairness to Obama, the division does appear more driven by party politics than geographics today. I am not convinced that the large versus small states are a defining political line in today’s politics and Madison may have been right about that point. However, some of the divisions between the parties reflect such geographic elements. Western and Southern politicians tend to be less supportive of environmental issues, national parks and other areas that reflect their interests of their states and citizens. In the end, however, the “disadvantage” faced by Obama is found in both houses, not just the Senate. Moreover, polls show considerable opposition in the areas where Obama is acting unilaterally like immigration.
As for the House, Obama complained that he is also at a disadvantage because “Democrats tend to congregate a little more densely, which puts us at a disadvantage in the House.” That is a perfectly valid call for political action. The Senate comments tend to reflect a growing criticism among some supporters that the Congress is rigged against the Democrats due to the equality of state voting.
Ironically, if there is one provision that could clearly be changed as outmoded it is the electoral college, which has consistently dysfunctional effects on our system. Rather than change the fundamental structure of Congress, that would be a change worthy of presidential advocacy. The changes that have occurred in the Constitution makes this relatively small provision a growing anomaly in our elections. The equality of states in the Senate is neither the cause of the current deadlock (given the role of the House) nor does it excuse the President’s circumvention. It seems to be an obvious post-rationalization for acts of circumvention.
So here is my only request. This is not the first veiled criticism of the Constitution by leaders of both parties. I have long ago stopped hoping that our leaders would maintain a logical and efficient approach to taxes, the environment, education, and other areas. I have come to accept that the executive and legislative branches will continue to waste hundreds of billions and harass trends toward growth. However, I continue to believe that our system can carry the huge costs of both branches and still benefit our citizens. The only limited request is that the two parties with a stranglehold on this nation leave the basic principles of the Constitution alone. That is all. They can destroy the economy, the educational system, and even global stability. However, the Constitutional structure was given to us by the Framers and has served us well. It has certainly served us better than our leaders.
In other words, what is “obvious” Mr. President is that it is not the Constitution that is the problem.
feynman:
“And anyone who disagrees with that, well I don’t think they give a damn about children.”
Says the guy who is probably all right with the concept of late term abortion, where they actually do rip children apart in and out of the womb. Children who are viable ex-utero I might add.
Abortion yes, infanticide no.
feynman:
The IRS had no problem processing these applications for many years . . . until just before Obama’s re-election. It has been documented that conservatives were specifically targeted. At least one Democratic senator has been implicated. It was a lie to try to pin this on “rogue” employees.
It is not Congress’ fault that Democrats misused the IRS to target conservatives.
feynman:
I dont want those things either.
But those are minor issues in my opinion. People concentrate on the chaff. The problem is the size of our federal government and what it is doing. It isnt gay marriage, that is a distraction. Most people I know could careless if homosexuals marry, more power to them and good luck. It should be fun to watch the divorce courts new show, it will give that old term gay divorce a whole new meaning.
I dont want to have to pay for someone who can work to sit at home.
The water is cleaner now, so is the air, technology cures those things.
A good economy is a bulwark against racism.
Free trade and economic opportunity unite people across cultural, racial and political divides, look at the internet, I marvel at the creativity shown by millions of people when they are free to pursue their goals.
Freedom and individual liberty bring people together and destroy barriers. This happened in the 19th century as well during the nascent years of capitalism when there was world wide trade. As far as I know there were no world wide wars from the end of the Napoleonic Wars until WWI which in my opinion was caused by the rise of the progressives and their billious philosophy.
So please spare me, it is progressives who set people against one another, each vying for crumbs from the kings table. Free people following their dreams do not need largesse from the rulers treasury.
And yes, I am amazing.
The complaint dept. closes @ 9pm.
Thanks, Darren
I find it amazing that Nick is free to imply, indeed interrogate me, that I called someone a liar, can do so more than once, and can then rudely refuse to answer when asked to clarify.
Karen
Reread my comment to Byron. I believe I specified EMERGENCY late term abortions.
I was thinking of what happened to the woman in Ireland who died because the hospital would not help her as she was dying. I believe this can happen here as more and more hospitals are purchased by the Catholic Church in areas where no other hospitals operate. Remember the nun who was censured because she allowed an emergency abortion?
Karen
See my comment at 8:44.
I would add that I deeply regret that NIH has suffered many budget cuts. I believe those who protest in good faith the closure of NIH during the government shutdown also protested their budget cuts. That would include the sequestration budget cuts.
I know no fiscal conservatives that have protested the sequestration or the budget cuts NIH has suffered throughout a number of years.
Perhaps you are the exception.
SWM, I love it when you trash talk! Politics needs more trash talking and sports needs less of it.
Help
Comment lost
Thanks
“Now, his administration is reportedly changing key provisions of the ACA to potentially make billions of dollars available to the insurance industry in a
move that was never debated, let alone approved, by the legislative branch.”
Why isn’t that baldly Unconstitutional? And what’s next, the “right” of everyone to have “free” “healthy” meals delivered daily to their doorsteps by NutriSystems, or their duty to undergo “free” Thought Care fbo a “healthy society”?
Well do your homework, nick, because some of the tea party governors in states like Pennsylvania appear to be going down.
SWM, I’ve not followed governor races much except Wi. I’ll have to do my homework. We can amend on Halloween, if that’s too spooky a date for you.
Here’s what I think about the IRS scandal.
The whole 501c4 structure is a scam, a lie, a failure, a disaster. None of them should get a tax write off. Congress bears much responsibility for never writing any regulations that can be easily enforced and measured. It is a crock of hogwash that Americans for Prosperity and Restore Our Future are educational organizations. They are political organizations with a political goal of electing their candidates. And the Supremes made an enormous error in not deciding that donors names must be made public.
And as Nick loves to invoke – the flop rule is perfect for the Republicans who are crying foul. It is just another phoney political bucket of slop looking for some fool congressman who is willing to swim in its muck. They found their guy – Darryll Issa..
Karen, what you neglect is why the President threatened to veto the NIH funding. It was because the repubs were playing games, they shut down the government and then when faced with a very angry citizenry were offering to restore funding on an issue by issue basis, whatever people were the angriest about the repubs having closed down. http://www.theatlantic.com/politics/archive/2013/10/the-gop-wants-to-restore-nih-funding-should-obama-allow-it/280203/
For those who say President Obama is the worst president ever let’s see, he did not lie us into a war but ended that war. he did not bring us 2 recessions as did the former occupant but brought the economy out of recession, stock market back, housing rebounded, no jobs bills from the repubs but employment created for over 18 straight mths, that was some time ago not sure what the count is now. auto industry back instead of going bankrupt as Mr. Romney said was fine. I could go on but you get the point. It is just those who hate this president do not, and will not accept the positives from this administration. Instead they continue to rely on lies, distortions, and exaggerations.
(As to the abortion discussion 20 weeks is considered viable, this false argument about late term abortions. except for some horrid people like Gosnell, late term abortions are rarely performed and they are done so for reasons of health, of mother or for pregnancies that are no longer viable.)
Here’s what I think about the IRS scandal.
The whole 501c4 structure is a scam, a lie, a failure, as disaster. None of them should get a tax write off. Congress bears much responsibility for never writing any regulations that can be easily enforced and measured. It is a crock of hogwash that Americans for Prosperity and Restore Our Future are educational organizations. They are political organizations with a political goal of electing their candidates. And the Supremes made an enormous error in not deciding that donors names must be made public.
And as Nick loves to invoke – the flop rule is perfect for the Republicans who are crying foul.
feynman, I retrieved your comment.
The comment is above at 9:16
I just finished Akhik Reed Amar’s class in constitutional law (Yale Prof of law, history, and politics) and most posts including Prof Turley miss the key point:
The Founders would be appalled to see super majorities in the Senate to accomplish all business. Except in the specified situations clearly listed in the Constitution, e.g., impeachment, advise and consent on judges, majority rule was the rule. Declaring war is a majority vote. Filibustering anything and everything is not in the Constitution.
WY has two votes for 350,000–CA get two votes for 38,000,000
Now we are paralyzed by 40 Senators representing 15% of the population. The electoral college and the 3/5 rule are a vestige of our foundation on slavery!
Idaho Jim – at the beginning Washington did not even know what his job was. They were making things up as they went along. There should never be a rush to judgment when our government is working.
Feynman:
“It is a lie, Karen. A lie.” “Just to be clear – I did not call anyone a liar.”
Please just focus on the content and not the poster. Let’s try to be constructive.
Do you agree with Obama circumventing Congress, and if so, how do you defend this action?
nick, Senate 50 – 50 with Biden as tie breaker. House down 10 to 15.. Pick up 4 or 5 governors.