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.
Schulte:
“Only TEA Party groups were actually harassed by the IRS.”
You offer no proof. But I will give you a big hint: if you’re not lying, you’ve been misled.
“DailyKos can duck and cover for the IRS and the administration all they want, but it will not help.”
Genetic fallacy. Argue the points. Proof was offered for the other side, and all you did was attack the source.
“leejcarol does some research but not in depth.”
You mean leejcarol doesn’t copy and paste from Wikipedia without citing it?
[Shiite Liberal drops mic and exits]
Annie wants to know why Schulte would re-ask Karen’s question about smothering a baby.
Of course, Annie, the answer is that when cornered on subjects like how many Republicans vote to renew the Patriot Act, they start accusing liberals of being baby killers.
And, of course Schulte had an answer. “she was looking for limits.”
Right. Because Karen wasn’t sure if feynman wanted to smother newborns.
And this passes for civil.
Roe v Wade is predicated on a lie. Live with it.
feynman:
“Where is Roy Cohn when you need him?”
I know, right? They have to have another one around here somewhere….
Also, interesting catch from Spinelli:
“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.”
As if who is commenting at a particular time is what determines whether one’s arguments are sound.
Schulte:
“Why are there still TEA Party groups that have not gotten 501c3 approval yet?, but all the progressives have?”
Do you have any proof for this assertion? If so, my first instinct would be that the IRS was doing it’s job and only granting 501c3 status for those who qualify for it. If Tea baggers can’t get their act together and fill out the forms right, that’s there problem.
But, interesting how this line of attack has progressed. First, they only targeted conservative groups. Then they targeted MOSTLY conservative groups, and now that we’ve discovered that they actually targeted more progressive groups, the criticism has changed to the percentages who’ve been approved.
Gary T
“Well of course about half of libertarianism is flaming liberal, so that half would be well represented in the Congressional Progressive Caucus.”
Actually, Left Libertarians and other various minarchists tend to agree with Progressives on way more than half of everything.
“Citizen United decision is fundamentally a libertarian decision.”
Again, I’m not so sure. Plenty of mainstream democrats like it because they want unions to be able to spend more. I think unions have better things to spend money on.
But I also know some libertarians who don’t like it because when it comes to free speech, we are all supposed to be equal. When you can buy a bigger soap box and a louder PA system, then you can drown out my little voice down here on my little cracker box.
There is nothing libertarian about a rigged market.
Very interesting Bob Esq, thank you. It is always interesting to read whay you write.
I personally appreciate your regard for the rights of individuals.
Karen S:
“Blaming Bush for every single scandal, including the VA, is just pathetic.”
Not if it’s his fault, it isn’t. But screwing veterans has been a bipartisan affair since forever.
“We have documented that Obama was notified at least as far back as 2011, but he just heard about it on the news recently, apparently.”
What you have a various documents to which you provide no link. Your unproven assertion fails to say precisely what he was notified about.
But mostly, it fails to take into account that once again, a Republican (who wants to overturn Citizens United, no less) is apparently unaware of our bad treatment of veterans in this country only when a Democrat is in charge.
The thing about Professor Turley that I respect is that he doesn’t care who’s in office. Right, to him, is right. It’s why even though I sometimes disagree with him, I still like to read his posts.
“Bet the middle class would just hate it. Paying less taxes.”
Yes, we like the fact that Obama let the Bush tax cuts for the rich expire while letting the middle class keep a lower rate. Thank’s for mentioning it.
“Having Obamacare repealed which would cut their premiums in half and allow them to see their doctors again”
Do you have any proof for this, or did you just make it up?
“Wendy Davis filibustered for 11 hours straight to fight a ban on late-term abortion.”
Texas Senate Bill 5 was a big list of abortion restrictions. It included a 20 week ban. 21 weeks is not considered a “late term abortion.”
Therefore, you have been disingenuous in your description.
As for 20 week abortion bans, if you support them, you support torture. That’s right. You heard me. The people of the state of Nebraska tortured this woman for 10 days because they got between her and her Doctor.
http://crooksandliars.com/john-amato/nebraska-anti-abortion-law-tortures-mot
> Nebraska’s new abortion law forced Danielle Deaver to live through ten excruciating days, waiting to give birth to a baby that she and her doctors knew would die minutes later, fighting for breath that would not come. And that’s what happened. The one-pound, ten-ounce girl, Elizabeth, was born December 8th. Deaver and husband Robb watched, held and comforted the baby as it gasped for air, hoping she was not suffering. She died 15 minutes later.
Hey, Spinelli: You talk about wanting to be left alone? How about what they did to that woman?
What’s funny, Karen, is that you became so uncivil that you were actually asking feynman if he supported smothering babies. Based on even better logic, I can actually say that if you support a 20 week ban on abortion, like Nebraska’s, then you support torture.
Spinelli:
>“I want, I want, I want, I want, I want, I want.”
Liberals have a cargo ship full of “I wants/” Here’s what libertarians want. WE WANT TO BE LEFT ALONE!
Progressives generally score libertarian left on the political compass. We are not authoritarians. The fact that you believe this misinformation tells me you’re likely an embarrassed Republican who’s been listening to some really lousy news sources.
Progressives want to be left alone to smoke legal weed. They don’t want cops violating their 4th amendment, or any other rights, including our right to regulate the militia well. We are especially fond of the ninth, which it seems conservatives prefer to ignore.
“Only weasels run to the teacher. ”
So, you’re calling whatever person has turned me in countless times a weasel? Hey, whoever told the professor about me, Spinelli is calling you a weasel!
Schulte:
“Karen – Obama knew about wait times in 2008. He did not suddenly see it on TV. Does the guy never get a briefing?”
Obama is given a broken VA, watches funding get cut while almost 3 million veterans from George Bush’s wars line up for care for traumatic injuries that they used to die from before battlefield technology saved them.
And this is Obama’s fault, how, exactly? In my book, your president, GW “Food on your Family” Bush, set a mighty low bar, which Obama has cleared.
On at least two occasions Obama made speeches where he claimed he was going to shorten the waiting times at the VA
Karen S:
“Nothing to say about Obama threatening to veto a bill that would have kept the NIH running to treat sick kids?”
Did the NIH reopen quickly? Yes. Did any sick kids die? No. Do you understand how veto threats from presidents work? I don’t think so.
“Nick – look what Liberals do to African Americans who don’t toe the party line. Suddenly racial slurs are just fine.”
What liberals? All of them or some of them? Which ones used racial slurs? Because I’d like to see that so I can write them a note telling them it’s not right to use racial slurs.
Spinelli, again:
“Byron, Liberals eat their own. Christopher Hitchens spoke eloquently about how he was vilified by longtime friends for supporting our involvement in Iraq.”
The fact that Hitchens had some friends who didn’t like his war mongering doesn’t mean that all Liberals eat their own. And the image is offensively ridiculous.
Democrats are often referred to as “herding cats.” This is not a phrase that is used for people who walk in lock step and “eat their own.” In fact, if one simply goes to the Vote View blog, you can see that the Republican party is the most monolithic of the two. These facts are commonly known even among conservatives. The difference between a blue dog Democrat and a progressive is much greater than the difference between a Republican and a Tea Party Republican.
“There is no honor. Toe the line or you’re Satan. I think Jonathan got the same lesson. Integrity is a liability w/ liberals.”
Your blanket statements about large populations reflects your own biases, not reality. For many liberals, integrity is precisely what we’re talking about. It’s why many of us want to stop listening to people who have been so horribly wrong for so terribly long. You know, people like Dick “deficits don’t matter” Cheney or John “Bomb Bomb Bomb” McCain.
It’s why we criticize the President and any other Democrat who violates our civil rights. It’s why I give the Professor a hard time about Citizens United; I don’t think he sees that the massive influence of money, especially from the Military-Industrial-Security complex, is what will keep getting bills like the Patriot Act passed.
So, spare me your gross generalizations. If you’re really a libertarian, and not a Glibertarian, you actually agree with me more than you disagree, especially on matters of the constitution. You just would rather punch hippies by defending the Republicans with whom you disagree on more.
Schulte:
“I did find out they paid income tax, much to my surprise. Thank you for allowing me to learn something today.”
You’re welcome.
Schulte again:
“Some Democrats have filed suit to enforce Citizens United. I posted a link a couple of days ago.”
To use one of your favorite responses: so? Which Democrats? Are they progressives? How many of them are there?
Schulte, again, linking to Tucker Carlson’s daily puke funnel. Stick to Wikipedia.
http://www.dailymail.co.uk/health/article-2639910/Do-NOT-try-diagnose-Wikipedia-90-medical-entries-inaccurate-say-expertsDo.html?ITO=1490&ns_mchannel=rss&ns_campaign=1490
Spinelli has to make stuff up because apparently he can’t argue with what real people say…
“Republicans lie and Dems walk on water”
Who said that? What part of “not all Dems are cool with me” don’t you get?
Spinelli again:
“I predict Dems lose 8 in the House and lose the Senate. That would be a collapse. What’s your prediction? And, I love to bet!”
So do I. I especially love to bet about global warming. I have a nice bet with Pat Michaels of the CATO institute, in fact, that I’ll do a hundred dollar versions of all day. Just Google Supak Pat Michaels Bet and you’ll find it.
As for the Democrats losing the Senate, well, I do miss Intrade, where I took money from unskewers of both Global Warming and politics. But if you think you’re good at predicting political things, you should come try to win the real money every month in the ACE prediction markets contest:
http://amciv.com/contest
Bob, Esq, I really don’t know what your point is other than being critical. I saw the movie at least ten times.
Paul,
What lie are you referring to? The holding in Griswold?
Bob, Esq. I said Roe v Wade
swarthmoremom,
No…. It is a fact that the woman who played Keating’s daughter in the “Paper Chase” was Lindsay Wagner; a.k.a. the Bionic Woman.
How’s that for missing the point?
Bob Esq, No…. It is a fact that Harvard Law School, the law school in the “Paper Chase”, no longer uses the Socratic method.
Paul: “since it takes two to tango, so to speak, doesn’t the right to terminate belong to both parents?”
During the first trimester? Absolutely not. If the woman cannot alienate the right to the state, then she can’t delegate it to the man.
Paul: “And really is it a self-ownership if half the product belongs to, or is the result of, someone else?”
During the first trimester? There is no “product” just as the woman is not the man’s incubator.
Paul: “:Shouldn’t the social compact include both parents and the child to be?”
During the first trimester? Absolutely not.
Paul: “Shouldn’t we consider the potential citizen as well as current citizens?”
During the first trimester? Absolutely not.
Overturning Roe v. Wade and making all abortions illegal is just as much “an exercise of power beyond right which no one has a right to” as slavery.
Again, the woman, like any other individual, must be treated as a citizen of the United States; not property of the United States.
Bob, Esq. – since Roe v. Wade is predicated on a lie, there is no reason not to overturn it.
I am just an old artFay that knows nuthin bout birthin babies but is it not true that the Socratic Method was an abortion performed in a soccer stadium before a crowd of ten thousand? Some one clue me in on this one. I think I saw this on Blazing Saddles last night or it might have been on Gone With The Windmill.
I think the issue of late term abortions is far less important than the social contractual implications of banning all abortions.
To say that a woman is not entitled to terminate a pregnancy, at the very least within the first trimester, is an exercise of power over the individual’s inalienable right of self-ownership. Without that minimum first trimester window, the social compact becomes void.
The woman, like any other individual, must be treated as a citizen of the United States; not property of the United States.
Bob, Esq. – since it takes two to tango, so to speak, doesn’t the right to terminate belong to both parents? And really is it a self-ownership if half the product belongs to, or is the result of, someone else? Shouldn’t the social compact include both parents and the child to be? Shouldn’t we consider the potential citizen as well as current citizens?