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.
Here’s something pretty interesting from Sullivan’s The Dish 5/28/14
“When the Roe decision was handed down, W. A. Criswell, the Southern Baptist Convention’s former president and pastor of First Baptist Church in Dallas, Texas—also one of the most famous fundamentalists of the 20th century—was pleased: “I have always felt that it was only after a child was born and had a life separate from its mother that it became an individual person,” he said, “and it has always, therefore, seemed to me that what is best for the mother and for the future should be allowed.”
And may god bless Mike Appleton.
Apply the lash – so long as I can read his essays.
Bob Esq.
Thanks for your response. However, I don’t think gaslight is fair.
This forum is LOADED with minefields,.. lots of history, threats of unknown ‘snitches’, alliances, stalking, aliases, attacks on privacy, deletions (who? which comment? when?) and sanctions. It is best not to go sprinting unawares – particularly if you have an unpopular opinion – like support of late term emergency abortion. And if you managed to filter out the government shutdown, perhaps you also managed to filter out the social dynamics of this blog.
No, I wasn’t attempting to gaslight Karen. I was showing restraint and some self discipline. Just as Prof. Turley has requested.
But thanks again for your response. I especially enjoyed not being lashed to the Socratic Rock this time. Your wield a wicked lash.
There are many issues which are amenable to debate along party lines. The increasing concentration of power in the executive branch is not one of them. It did not begin with the election of this president and it will not end with the election of his successor. The Supreme Court is not about to touch it because its scope and complexity is best tackled politically. That leaves the legislative branch, whose members have consistently demonstrated a willingness to let the President decide all the hard questions, contenting themselves with bellowing their disagreement from the sidelines. If we wish to rein in the executive branch, that will require that we start electing strong, smart people to Congress, meaning people who appreciate the necessity of government and and who desire to make it work. And it means rejecting those candidates whose platforms consist solely of demands to reduce spending, cut taxes and privatize any program that can produce a profit for favored constituents.
feynman,
Fair enough; but you did gaslight her.
As you probably saw, I would have avoided on the late term abortion debate and focused on the social compact angle.
I didn’t follow the shutdown; i.e. who did what and who was ultimately responsible. But I will say that from what I read that Karen’s thinking is very precise and methodical. Her points about the separation of powers were spot on.
What I was going to explain to Paul, if he ever explained what “lie” he was talking about, is that my objection to overturning Roe v. Wade is quite similar to my objection to the arguments posed by the Obama administration for the Health Care Act.
Just as the government was never empowered to treat a citizen as if he/she were property of the United States by banning abortion, so too the government cannot turn to the commerce clause and claim that by virtue of being born in this country every citizen’s existence affects interstate commerce and therefore the government is empowered to regulate their lives.
The far left is just as disgusting as the far right.
Bob, Esq – is there a legal definition for ‘gaslighting’? I am not sure I understand the term used in this circumstance.
Bob Esq
I think there was little to be gained (even at the risk of being arbitrarily thrown out of your 1L class) to get into a numbers game with Karen. Hell, the Supremes have just decided that 70 may not be so much different than 71 when it comes to executions.
But I think restraint is called for when opposing Karen on such a hot topic as abortion. (BTW, my initial comment stating my support for late term emergency abortions was an exchange with Byron – not Karen.) It is clear that you noticed her zeal in seeking the depth of my extremes. I noticed that, too. But I judged that that would not compare to her wrath had I acceded to her demands. Such an exchange would likely fall outside the limits of civility.
Karen sees the world so very differently from the way I do. Her characterization of the government shutdown may serve as an example. In my view, by blaming Obama she has fallen victim to some crazy propaganda and turned history on its head. As you may have noticed, she remains steadfast. In my view, she runs on an ideology that is completely foreign to mine and in other exchanges has relied entirely on anecdote to support her positions and in others has dismissed three mainstream sources that contradicted her position. And that argument wasn’t a matter of opinion. That argument was the number of kids enrolled in DC schools.
You may call that prevarication. I call that saving Prof. Turley a headache.
Bob, Esq. – although he covers himself nicely and puts his case forward to show himself in the best light, he would not answer Karen’s questions on where the limits of his late term abortion ended. He dodged the issue and continued to dodge it. On the numbers of the DC students, they were working on numbers for different groups. That did not make his right, actually his had less validity, considering the bias of the source.
Nick: “[Bob, Esq.], you are intellectually honest.”
Scott: “I don’t know how you can tell that. He doesn’t offer specifics and attacks people personally when he can’t argue with them.”
Yes, I must work on that.
Paul,
What is this “lie” that you’ve been hinting at?
Scott Supak: “Most of the blood is on the hands of this kid. And the people who wouldn’t pass the bipartisan background check improvement bill in the US Senate last year. You know, Republicans.”
Bipartisan background check bill defeated by the IRA’s lackeys in the US Senate last year would have made it much harder for people with a history of mental illness to get a piece of machinery that can move metal at deadly speeds.”
(Note how Scott clearly states that 1) the republicans are as culpable for the murders in California as the mentally ill man who did the shooting and 2) the reason for this was their refusal to pass a bill which Scott claims “would have made it much harder for people with a history of mental illness to get [guns].)
Prompting my reply:
Me: “Sorry Scott, but the bill put forward by Manchin and Toomey would have merely required background checks for anyone who buys a firearm at a gun show or on the Internet. You seem to be fond of imagining your own facts.”
How does Scott reply?
Scott Supak: “Where did I say that that bill would have stopped that particular murder spree? My point is much larger: closing the gun show and internet loopholes would be a really good idea. Or do you want to wait until someone actually uses that loop hole to kill a bunch of people?”
Truth is the agreement between knowledge and its object.
Note how much Scott’s initial statement agrees with his recollection of it later.
Such integrity; such intellectual honesty.
Brings a tear to my eye.
The idea that our incompetent, divisive, dictator wannabe President is making the rounds of billionaire democrats and trashing the Constitution is absolutely frightening. He’s already circumventing Congress, ruling by decree like Hugo Chavez, and using the power of the Presidency to intimidate the Supreme Court, and the IRS to damage and intimidate his political opposition. His role models Castro and Chavez would be both be proud of him. I honestly don’t recall any incident in public, or reported from a private meeting, of George Bush criticizing the Constitution, and certainly not in the horrific way Obama is trying to usurp our most basic founding document. Its no surprise that Obama has no respect for our founding fathers, or the compromises they made to found our nation. If Obama had been there he would have opposed any compromise and our nation likely wouldn’t exist. We owe Mr Turley a vote of thanks. I understand he voted to inflict Obama on the nation, but thanks to him we have a credible support of Obama, with no political axe to grind, warning our nation of the danger we face for a President that would conspire with billionaire democrats to usurp our Constitutional power as he seeks to take our nation down the path to authoritarianism, even as his arrogance and utter incompetence reduce his authority and political power.
Meanwhile, this President just put for the most anti-war foreign policy doctrine in decades.
http://www.vox.com/2014/5/28/5757630/obama-foreign-policy-anti-war-speech-doctrine
> President Obama made a commencement speech at West Point on Wednesday that the White House had aggressively billed as a grand articulation of Obama’s foreign policy vision. This was not the first time he had attempted to lay out a foreign policy doctrine, and few expected much more than the usual vague policy mish-mash — when it’s year six of your presidency and you still need to explain your doctrine, it’s not a great sign that you really have one.
> So it was a legitimate surprise when Obama articulated a unified, tightly focused vision of America’s role in the world. And while it’s not a vision that will thrill many foreign policy hands, including perhaps some of those in his administration, it is the clearest Obama foreign policy doctrine he’s made in years: no war, no militarism, no adventurism. With the possible exception of Jimmy Carter’s 1977 Notre Dame speech, it may well have been one of the most dovish foreign policy speeches by a sitting US president since Eisenhower.
—-
Libertarians should be happy, unless they’re really just embarrassed Republicans.
Spinelli:
“Bob, Esq. Thank you for telling Feynman to grow a pair, but in much more eloquent and genteel terms.”
Yeah, Ol’ Bob’s been quite nice to the hippies since he got a comment deleted.
“You are intellectually honest.”
I don’t know how you can tell that. He doesn’t offer specifics and attacks people personally when he can’t argue with them.
“Making you an endangered species here amongst the red meat partisans.”
Like you? Or do you mean the Republicans with whom you supposedly disagree on so much? Or maybe you mean the liberals here who have repeatedly said they disagree with this President on many issues–something you’ve continued to ignore.
Bob, that’s an excellent question. I’d like Paul to explain his remark. What lie is Roe v. Wade predicated on?
Bob, Esq. Thank you for telling Feynman to grow a pair, but in much more eloquent and genteel terms. You are intellectually honest. Making you an endangered species here amongst the red meat partisans.
The thing about the Griswolds is, they were too engrossed in Christmas. And as far as Connecticut goes, fly over and flush.
Schulte:
“Don’t want to injure the aged. And if you don’t know the lie, I don’t want to spoil the illusion for you. Still, it is predicated on a lie. So, live with it.”
Refusing to argue the points, calling a basic truth of the right to privacy a lie, calling me injured and aged, and bossing me around…
How civil.
You live with the right to privacy, hippie puncher.
“This is not a case of my guy is not quite as bad as the other guy so it is alright. 40 veterans died in Phoenix alone”
Actually, it’s a case of your guy is MUCH WORSE than my guy. 3 million veterans from his wars added to the VA’s caseload.
Do you know how many veterans with PTSD kill themselves everyday? How many just from Iraq?
George Bush killed those guys, just like he killed the 30,000 to half a million others who died for that lie.
You know, real lies. Not imaginary ones. Actual lies, like the one that led to the woman in Nebraska being tortured.
If I am a hippie puncher (which I am not), then you have to be a self-identified hippie. In your best defense real hippies are from the 60s not the hippie-wannabes from the 70s. That would make you aged, assuming your reached your majority before or during the 60s. Hence, my not wanting to injure the aged.
Paul,
You said Roe v. Wade is predicated on a lie. I asked you if you were referring to Griswold because the holding in Roe is “predicated” on that.
But you claim to be referring to something else.
What lie are you referring to?
Schulte:
Here’s the record on promises. Not bad, for a politician.
http://www.politifact.com/truth-o-meter/promises/obameter/
“Roe v Wade is predicated on a lie. Live with it.”
You’re mighty bossy today. You think you can boss me around?
What’s the lie, Schulte? That we have both a 14th and 9th amendment right to privacy? That the states don’t get to torture women?
What’s the lie, man? C’mon. You want to punch an old hippie like me, you’re going to have to do better than “live with it.”
This is not a case of my guy is not quite as bad as the other guy so it is alright. 40 veterans died in Phoenix alone, that we know of. 1500 were not on any waiting list of any kind but had been to the hospital and supposedly put on a waiting list. Obama is in charge. He takes the blame. He needs to man up and fall on his sword.
Schulte, who quoted an entire paragraph on Chicken Hawks from Wikipedia, without linking to it, now links to story about medical advice being wrong on Wikipedia.
I asked you for a link to the story you said had a whole paragraph wrong about something. You never said what that something was, or what that Wikipedia page is.
But, as I have said again, I only use Wikipedia as a jumping off point. I follow the footnotes. I did deeper, as we all should. And if you’re taking medical advice from anyone but your Doctor, then you’re an idiot.
“On at least two occasions Obama made speeches where he claimed he was going to shorten the waiting times at the VA”
I see. Now we’re going to hole politicians to their promises? Do you have proof of you doing this under other administrations, or is this criticism of politicians not fulfilling campaign promises new to you?
If you’re interested in facts, and I’m not so sure you are, Obama is actually a little better than average on keeping his promises.
And when it comes to the VA, many people are often surprised at how bad the backlog is. Especially after your boy W added almost three million veterans to the mix, while Republicans cut funding.
Don’t want to injure the aged. And if you don’t know the lie, I don’t want to spoil the illusion for you. Still, it is predicated on a lie. So, live with it.
Schulte
“Bob, Esq. – since Roe v. Wade is predicated on a lie, there is no reason not to overturn it.”
Hey, Spinelli! You hear that? The right to privacy is a “lie.”
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”-The Ninth Amendment
See, Griswold v. Connecticut, and Roe v. Wade.
“…whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”–Justice William O. Douglas
Judging from the treatment of the Nebraska woman who was tortured by a 20 week ban on abortion, Schulte et al are advocating that not only do we not have a right to privacy, but individual states have the right to torture their citizens.
Or force them to have rape babies.