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.
Until judges, justices and legislators are on the “receiving end” of lawless national security agencies, nothing will change! Federal agencies are not above the supreme law of the land – U.S. Constitution and Bill of Rights.
The elites could care less about regular Americans, when they are on the receiving end of intelligence abuses things will change.
Ross – I have always thought that all illegal immigrants should be released in front of the homes of federal judges.
Nick Spinelli comment: “Karen’s got your number, Annie. You’re pretty easy to read. And Karen is very sharp, HONEST, and gracious.”
What about that civility policy? Slam one, then cover it with high praise for another.
Imagine:
A man never to see his family again, held captive for 12 years by a Nation that claims to be the Leader of the “Free world” is now being force fed against his will. He lost all hope and chose death over life and his ultimate tool of bargain with his captors is his own life. His Liberty has been incarcerated and his happiness, denied. America!
A court ruled the U.S. Government must hand over the tapes, and has allowed the forced feeding to continue. Good thing too, just like when they had doctors in the ‘enhanced interrogation’ rooms to revive the detainee as they died so that way, Jon Yoo’s memos weren’t called into suspect as being illegitimate, or anything. Reminds me of erased tapes… of TORTURE.
So, why would the Obama Admin cover this up?
Seems to me I’m being unfair. Let me correct…
… Seems to me there is one Party running the show: The cover-up Party.
The Guantánamo “Suicides,” Revisited
A missing document suggests a possible CIA cover-up
By Scott Horton
(This article is available in PDF and Microfiche formats only.)
http://harpers.org/archive/2014/06/the-guantanamo-suicides-revisited/
The Guantanamo “Suicides” Revisited: Did CIA Hide Deaths of Tortured Prisoners at Secret Site?
on 1, May 28, 2014 at 4:34 am
Max-1
Your comment is awaiting moderation.
This was a doodie moment… ten years hence.
This detention thingy…
… A doodie in the tub that Congress seems willing to throw the baby out, over.
Max-1
The comment at 4:34 got snagged because it had more than two hyperlinks. I dereferenced the hyperlink for #Afghanistan to make it work. If you have more than two links, you can use an additional comment to get past this.
voters who supported him twice , most likely some of them are here, intellectualizing away the primitive behaviors, will be the ones who will be looked at with amazement/amusement by the smarter generations of the future, hopefully!
Take your pills, kids…
The Deep State Hiding in Plain Sight
But hey, as long as I can call myself an American…
… It’s never when my Party does it, and I’m pointing at you! (points nowhere)
The upshot? … I can tell what State I’m in by it’s color.
Red pill or blue?
Glenn Greenwald has elluded tof more information to come about details concerning his collection of Snowden documents. He hinted that it will be vastly more revealing about the “who” they spy on, specifically. It shall prove to be interesting.
To continue with my quandry above…
Marcy Wheeler (emptywheel) has a good comment, er. observation.
The Administration’s Non-Appeal Appeal on the Awlaki Memo
http://www.emptywheel.net/2014/05/27/the-administrations-non-appeal-appeal-on-the-awlaki-memo/
I guess modern day presidents have to reward their best lackies…
Bush rewarded Bybee for twisting logic’s right arm concerning torture.
Obama just rewarded Barron for killing due process with one drone strike.
p.ps
The Patriot Act is the Doodie in the pool…
… And our Pols are playing the role of Carl Spackler.
They should choke on that doodie IMO…
And I forgot this great quote…
… Seems, so does most on the Hill, today.
Annie,
It’s doodie brown…
… And Paul, this one’s for you.
https://www.youtube.com/watch?v=TPxiXGr9nFM
p.s.
Power corrupts, ultimately.
Imagine: In ten years, the machinations behind justifying due process free assassinations of Americans, regardless of the political Party in the ‘majority’.
Of course, will America be driven by phobias of terror that they insist on continuing to live under the fear of reprisal of their Government forces should they gather in the public commons… remember OWS, anyone? Will we still be electing people under the promise to keep us free (from terror) while instilling fear OF terror in the masses?
REMEMBER: (once often said enough, it became truth)
“They hate us for our Freedoms”…
… So Congress began legislating those Freedoms away.
Patriot Act (Orwellian newspeak), Anyone? In ten more years…
… What will it (sic) be used to ‘Justify’ then?
The only place that the terms “righty”/”lefty” has a clear picture in the year 2014 is in baseball. There are definitely two types of pitchers. Now, some lefties can throw a curveball to a right handed hitter and vice versa. But until you get into those nuances baseball is much simpler than trying to describe the positions which Americans take on political issues.
When I was a kid the phrase “I Like Ike” was groovy. Ike was considered more conservative than Stevenson. Ike’s parting message was to look out for the Military Industrial Complex.
I cannot put John McCann in the same Republican Party as Ike headed up. Ike was no fan of Joe McCarthy. Joe is the one person who changed politics in America in the last century. Joe appealed to the Manly features. Democrats could be castigated as Communists. If they were not Communists they could be castigated as Soft on Communism. If a President like LBJ opposed going deeper into Vietnam he would get the Soft On Communism criticism. That period of time changed the tunes of American politics. If you were dubbed a Lefty then you could be weak on killing the Viet Cong, weak on teaching God in public schools, weak on building a huge fleet of nuclear submarines and nuclear bombers.
Lee Atwater altered the equations by attempting to steal the bigots out of the Democrat ranks and make the Republican Party reak with their quick waltz across the aisle. Please Google Search: Lee Atwater and the Southern Strategy. Race was put into the mainstream theme of the Republicon Party. A Lefty was not only soft on Communism he/she would sit at a lunch counter with negroes in Mississippi. The righties can yell StatesRights!. They put that into one word with the exclamation point. Lefties are in favor of the federal government sending the Justice Department out to stop lynchings.
When the present occupant of the White House was elected there were many who were quick to point out that the White House was no longer an apt description of the address on Pennsylvania Avenue. Anything that Obama does is described as Lefty. It is possible that he did not want to seem Soft On Terrorism and caved in to the urgings of the scaredy cats in his own party who want to stay in Afghanistan and root out al Qaeda.
Righty / Lefty does not really address the present problem of the defunct Legislative Branch. These schmuchs cannot even vote up or down on judicial nominees. I for one believe that the Executive Branch needs to be more pro active. I am for freedom of speech, freedom of assembly, freedom to petition our government for redress of grievances. This is a center of gravity position which cannot be characterized as Right or Left. There are Right Wing nuts who do not like our First Amendment. There are Left Wing nuts who want to yell Fire! in a crowded theatre. But there are few Right Wing nuts who would belong to the German American Bund and there are few Left Wing nuts who would belong to the Communist Party. Righty/Lefty has morphed in the past sixty years and calling someone a Lib Tard because they advocate privacy rights is kinda like calling someone a Bircher for advocating Four More Years of War in Afghanistan. McCann is in favor of wars in Syria, Sudan, Afghanistan. But he is no Bircher. I am against all these wars. I am against the NSA reading my emails. I am in favor of our rights to speak on this blog. I am no Lefty and I am no Righty.
Professor Turley’s admonitions to be civil to each other needs to gain more ears.
Karen
Sure. No one would be the least disturbed when questioned if they approved of killing babies with plastic wrap. And you found that image amusing?
And why do you accuse me of calling you names? You are aware that such comments are forbidden. Such accusations invite Prof Turley to take actions that would be unfair. Not cool.
I think my behavior was perfectly civil. What did you find objectionable about my behavior? That I refused to get into the weeds regarding the number of weeks? Is that objectionable behavior?
Sorry that you’re unhappy that you cannot properly evaluate my position. It never occurred to me that ‘late term’ would prove to be so limited and vague.
BTW I looked up the Planned Parenthood position on what the right described as ‘infanticide’. It’s just another bucket of slop. Doesn’t the right ever tire of manufacturing such muck?
Feynman:
Again, you are attributing motives and feelings to me I neither had nor expressed. I was not upset. Curious and amused, yes. I could not actually evaluate your position without an answer to my 2 questions. You repeatedly made personal remarks about me – insulting, bullying, use my head, intimidating, lie, etc. But I still would not fight with you. I wouldn’t say you exhibited integrity, though. I merely asked why you felt that way when I kept asking you the same 2 questions. I even offered to let you off the hook because you seemed so reluctant.
Someone asking you 2 questions is not an excuse to drive yourself up a tree and then blame that person for your own behavior. You objected when I asked you 2 questions, and you objected when I acknowledged you were reluctant answering and suggested we change topic. Do you honestly feel that my questioning you “makes” you call me names and make disparaging remarks?
True, I kept repeating my 2 questions when you would not answer, which must have been tiresome. But to get upset when I suggested you were reluctant, and we should move on to another topic? Do try to not take personally what is not intended so.
Thanks Annie. I appreciate your support.
Feynman, looks like your integrity and honesty is just too much for some folks to deal with. Your a good man, that’s evident.
Karen, No thanks needed. You kicked ass tonight, woman. And you do it w/ class.
Karen
You will never find me in the anti-abortion camp.
And I think you had no difficulty evaluating my position. You evaluated my position from the moment I said I supported emergency late term abortions. You were just seeking to find out how truly horrific my position was. You immediately came up with questions about babies being smothered in plastic wrap or killed before she drew a breath. Those are not the questions of a person who is neutral regarding late term emergency abortions. Those are the questions of a person who is quite upset.
Ah well. Goodnight Karen.
Thanks, Nick.