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 – you are so amusing trying to rationalize refusing to answer your gestational limit and attacking anyone who questions you. Why did you post your opinion on late term abortion if you would be offended by any and all questions about what you meant by that? You even got offended when I suggested we should move on to another topic because of your obvious reluctance. I posted a Guttmacher study outlining their position, and their breakdown of the reasons given for late term abortions.
Since you seem uninterested in a two-way discussion, I’ll just move on to other news. It’s boring when you keep trying to focus on personalities when I want to discuss facts and the pros and cons of different opinions.
Paul: http://www.dailykos.com/story/2014/04/23/1294061/-IRS-Targeted-Progressive-Groups-MORE-than-Tea-Party
leejcaroll – it is not the quantity but the quality of the investigation. The real investigation, those going to the DOJ were all TEA Party, not progressive. Those membership lists going to Cummings were not from progressive groups but TEA Party groups. Only TEA Party groups were actually harassed by the IRS.
Annie – two states allow abortions of viable fetuses up until the 3rd trimester. And the Guttmacher Institute stated that even that limit is unconstitutional, as is any limit requiring the life or health of the mother to be in jeopardy.
Supporting late term abortion is a minority position, and it encompasses a wide range of beliefs, as I have stated several times. If someone supports post 24 week LMP (Last Menstrual Period) abortion, the only difference between killing the infant before and after birth is a breath of air. Literally. But not everyone understands this.
If a mother was raped, she is not allowed to smother her newborn. She is not allowed to kill her full term infant while he is in the birth canal. Although right now, it is my understanding that the criminal standard for murder when a baby is found in a plastic bag in the trash is a coroner’s report that the infant breathed air into his lungs. Depending on what state she lives in, the limit is the 3rd trimester of pregnancy LMP. There are already limits in place on what the victims of rape are allowed to do if their trauma resulted in a baby. There is roiling debate on where that line should be drawn, if at all, a fact of which you are well aware.
Paul S
Yes, you’re right. She did ask if I approved of smothering the baby before it took a breath. That was in addition to the plastic wrap.
Here is her post
Feynman:
Just to clarify, when you say you want your daughter to be able to have a late term abortion, do you support abortion up until the child draws breath – 9th month? How late is OK? Do you think that if a mother wraps a newborn in a plastic bag and smothers him, that should be legal or illegal? What if she kills him before he drew a breath, as he was being born? Legal or illegal? It seems weird that it is legal to kill an infant in the birth canal, on his way out, but illegal to kill him once he takes his first breath, seconds late
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Forgive me, but I think it is entirely appropriate to respond to such a comment(s).
I think I did and I did it very civilly. No name calling. No ad hominem. No rants. Very measured.
http://www.dallasnews.com/news/politics/headlines/20140527-quick-take-texas-gop-nominates-just-one-woman-for-top-office.ece There is only one woman running in the top 50 offices on the gop ticket in Texas. Nearly all of these men believe that abortion should be abolished even in the cases involving the life of the mother and rape.
on 1, May 28, 2014 at 11:28 amPaul C. Schulte
I think she asked if you approved of smothering the baby before it took a breath.
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Why even ask such a question?
Annie – she was looking for limits.
Nick said upthread
Feynman, When a liberal on this blog is going it alone, as you are this evening, that is a big clue that indeed you should move on.
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Nick
Thanks for the advice. I can’t think of anyone who is better qualified to give me advice.
Feynman:
You listed a particular time for a comment you found disturbing. I reposted that comment for clarification. I also explained why a 9th month abortion is weird.
And since you also were offended when I asked you your definition of “emergency” here is a study by Guttmacher institute:
http://www.guttmacher.org/pubs/journals/j.contraception.2011.10.012.pdf
2nd trimester abortions were positively correlated with the mother experiencing disruptive life events, including loss of a job, loss of a relationship, falling behind on rent, a medical issue for themselves or someone close to them, etc. The theory is that these events cause women to change their mind about carrying to term. 2nd trimester abortions were also inversely proportional to education level. The theory is that less educated women take longer to realize they are pregnant and then make up their minds to terminate.
2nd trimester and later abortions are more difficult to locate, more expensive, and carry higher health risks. So they are also positively correlated with health insurance, including Medicaid.
Interestingly, the paper concluded that increased availability of first trimester abortions would lower the number of 2nd trimester abortions for black women and uneducated women, even though the paper also theorized that disruptive life events caused women to either not realize they were pregnant earlier, or change their minds about carrying to term. They also point out that first trimester abortions are already more available and less expensive than 2nd trimester abortions.
For anyone who believes that late term abortions are almost always associated with medical problems, the figures disagree. And one is to consider that business was booming at the infamous Dr Gosnell’s with elective late term abortions. In the Guttmacher study, an “emergency” referred to anything from the loss of a job, a break up, to a medical problem.
leecarroll:
It appears that you do not understand the separation of powers, or the independence of Congress. Obama’s threats of vetoing bills that would have kept the government running are a matter of public record. His threat of veto to the NIH is public record. Nothing that you say can change that.
The dialogue on here about abortion kinda brings up some analogies to abortion and war. Neither is an all or nothing thing. The political phrase or catcall which comes to mind is the one against Nixon during the Vietnam War. It was on bumper stickers in a variety of ways. “Dick Nixon: Pull Out Now Like Your Father Should Have.”
For those of you who think that a woman can not have an abortion when she has been raped by a fleeing felon I say you go get locked up in the cell with the felon and take it in the rear.
Al – I am hard pressed to figure out how a fleeing felon can rape anyone. And don’t women get abortions because they are pregnant, not because they were raped? And what does either of those have to do with engaging in sodomy with the fleeing felon, who is somehow now in a cell? And isn’t that homophobic?
Interesting recap, Karen.
You left out the part where you asked if I supported smothering a baby in plastic wrap, though.
Sorry that you are unable to fully examine the ‘extremity’ of my position.
Sometimes life just isn’t fair.
I think she asked if you approved of smothering the baby before it took a breath.
BTW this is the link to the Guttmacher page: http://www.guttmacher.org/statecenter/spibs/spib_PLTA.pdf
Karen you misstate what they wrote because you want to make your point and truth is just a casualty of pushing on with your position.
What they ‘believe’ is that the Court stated:
“In its landmark 1973 abortion cases, the U.S. Supreme Court held that a woman’s right to an abortion is not absolute and that states may restrict or ban abortions after fetal viability, provided that their policies meet certain requirements. In these and subsequent decisions, the Court has held that
even after fetal viability, states may not prohibit abortions “necessary to preserve the life or health” of the woman;
“health” in this context includes physical and mental health;
only the physician, in the course of evaluating the specific circumstances of an individual case, can define what constitutes “health” and when a fetus is viable; and
states may not require additional physicians to confirm the attending physician’s judgment that the woman’s life or health is at risk in cases of medical emergency.”
It is unconstitutional because that is what the court ruled. Period.
As for late term abortions, it is abhorrent that late term abortions that result in a viable baby may terminate that baby’s life. That is not acceptable.
But late term abortion 1) happens rarely and 2) is not done willy nilly for the heck of it.
Your position, that one is for all late term abortions no matter what and that pate term abortions are done for convenience is the garbage bag approach to discussion and logic.
It is akin to those who say if you are pro-choice you are pro-abortion. No one is pro-abortion.
I have a feeling this is just an intellectual exercise for you and you have not known anyone who was in a position where they had to undergo a late term abortion.
I presume you also think it was fine to keep the woman “alive” who was brain dead because a woman, at the end of the day, is just a womb,
I don’t know Paul.
Darryll Issa is trying his very best to get to the bottom of all these scandals. But the poor man is only human and he can only turn off so many mics and hold so many hearings on Benghazi and now he has to handle the IRS, too?
Where is Roy Cohn when you need him?
All future Presidents are doomed to make the same critical errors in judgement. Only Congress can yank back the powers is granted during the GWB years.
And only the DoJ can seat the necessary grand juries.
Feynman:
I see you are still dead set on fighting with me personally, despite my repeated calls to move on to content over poster.
You’ve called me a bully, intimidating, told me I lied, told me to use my head, etc and you call that perfectly civil? That word does not mean what you apparently think it does.
You proclaimed that, in an emergency, you want your daughter to have a late term abortion. When I asked you what gestational limit and the definition of emergency, you pushed back and refused to answer, and repeatedly attacked me for daring to question what you meant.
Here is the quote at the time slot you claimed was “disturbing.”
“And you said, “in an emergency” you want your daughter to have a late term abortion. What constitutes an emergency? A medical emergency? The loss of a job? The loss of a relationship? What is the gestational limit, if any? 5 months? 6 months? 7 months? I do not believe you ever clarified the term that you used – late abortion. That can mean anything from 20 to 40 weeks, and there is a wide range of beliefs on this matter. I only ask because you stated your support for late term abortions. I would never ask otherwise.”
You said you were for late term abortions. I asked you if you were of the camp that believes that up until the second before the child draws breath is OK. Because I think it would be weird if it was illegal to smother a newborn but legal to kill him a fraction of a second before. And then you spent a LOT of time being offended that I would dare to ask your gestational limit and the definition of an emergency.
Let me explain something. The biological definition of “late term abortion” is anything from 20 weeks to birth. That is literally the range. So when you say you support “late term abortion” I wanted to ascertain the extremity of your position.
Here is a link to the Guttmacher Institute. You will note these two statements in their paper:
“11 states unconstitutionally ban later abortions, except those performed to save the life and physical health of the woman.
4 states unconstitutionally ban later abortions, except those performed to save the life of the woman.”
You will also notice that at the time the table was created, Virgina and Iowa had a limit of 3rd trimester that Guttmacher labeled “unconstitutional.”
Let me explain what that means. They believe that restricting late term abortions to those performed to save the life and/or physical health of the woman to be unconstitutional.
You (finally) explained that you only want late term abortion for cases where the life of the mother is in jeopardy. They feel that your position is unconstitutional. That means that they believe late term abortion should be given on demand.
Now do you (finally) understand why anyone would ask you to clarify your position, which used a biological term that applies to gestations between 20 weeks and birth?
http://www.guttmacher.org/statecenter/spibs/spib_PLTA.pdf
And as for what I found amusing – it was your climbing up a tree in a state and blaming me for the climb and your behavior.
Karen, a good debate requires that the other side can at least see the the points that are being raised. You are so ingrained in your right wing ideology and apparent hatred of this president that you seem to be unable to see past your limited viewpoint.
It was not the president who shut down the government no matter how much you want it to be so. It is not the president or the democrats who said, outright, the night of the first inauguration, we have one thing we will do and that is obstruct this president.
They have forced much of this by caring more about party then the country, by hating the democratic process whereby Mr. Obama won by a majority of electoral and popular vote (btw more then Bush’s so called ‘mandate”.).
I do not recall any other election where the country did not come together and say he is our president. I am astounded at the number of people who say he is not my president, yes, he is. don’t like it change it with the next election.
We used to respected thruout the world because, no matter how acrimonious an election, we abided by the results. This time the repubs and right wing are thwarting the will of the people by throwing tantrums, and refusing to work with this president. Bi partisanship isn’t ‘we will obstruct at all costs’ we will undermine this president at all costs”. It is we will together to find compromises.
And Feynman, I forgot about the fast downward direction of the deficit. Thanks.
You misrepresent the “IRS scandal” that even republicans have said there is no there there.
http://www.thewire.com/politics/2014/04/new-documents-show-the-irs-targeted-progressive-and-tea-party-groups-for-extra-scrutiny/361125/ as one of many links.
leejcaroll – if there is no scandal, why all the problems with Lois Lerner and her emails? Why is the IRS still having to redo the rules? Why were membership lists given to a Congressman from one of the investigated TEA Party groups? Why are there still TEA Party groups that have not gotten 501c3 approval yet?, but all the progressives have?
Byron
I don’t know. I hope such tragedies are very rare.
feynman:
“If the mother is dying and must have an abortion to save her life, a late term abortion is a tragedy but necessary. ”
Always go with the mother unless she wishes it otherwise.
That happens in how many abortions?